Exhibit 4.1
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BASE TRUST AGREEMENT
between
STRUCTURED OBLIGATIONS CORPORATION
Depositor
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
Dated as of [______]
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ASSUMPTIONS................................................................1
Section 1.1. Definitions...........................................................................1
Section 1.2. Rules of Construction................................................................14
ARTICLE II DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES...........................................15
Section 2.1. Creation and Declaration of Trusts; Assignment of Underlying Securities..............15
Section 2.2. Acceptance by Trustee................................................................16
Section 2.3. Repurchase or Substitution of Certain Underlying Securities by the Underlying
Security Provider....................................................................16
Section 2.4. Representations and Warranties of the Depositor and Representations,
Warranties and Covenants of the Administrative Agent.................................17
Section 2.5. Breach of Representation, Warranty or Covenant.......................................19
Section 2.6. Agreement to Authenticate and Deliver Certificates...................................19
Section 2.7. Statement of Intent..................................................................19
ARTICLE III ADMINISTRATION OF EACH TRUST..............................................................19
Section 3.1. Administration of each Trust.........................................................20
Section 3.2. Sub-Administration Agreements Between Administrative Agent or Trustee and
Sub-Administrative Agents............................................................20
Section 3.3. Successor Sub-Administrative Agents..................................................21
Section 3.4. Liability of the Administrative Agent................................................21
Section 3.5. No Contractual Relationship Between Certain Sub-Administrative Agents and
Trustee or Certificateholders........................................................22
Section 3.6. Assumption or Termination of Sub-Administration Agreements by Trustee................22
Section 3.7. Collection of Certain Underlying Security Payments...................................23
Section 3.8. Collections by Sub-Administrative Agent..............................................23
Section 3.9. Certificate Account..................................................................23
Section 3.10. Investment of Funds in the Accounts..................................................24
Section 3.11. Maintenance of Credit Support........................................................25
Section 3.12. Realization Upon Defaulted Underlying Securities.....................................25
Section 3.13. Retained Interest....................................................................27
Section 3.14. Administrative Agent's Compensation and Reimbursement................................27
Section 3.15. Statement as to Compliance...........................................................28
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Section 3.16. [Intentionally Omitted]..............................................................28
Section 3.17. Access to Certain Documentation......................................................29
Section 3.18. Duties of the Administrative Agent...................................................29
Section 3.19. Depositor to Furnish Names and Addresses of Holders to Trustee.......................29
Section 3.20. Preservation of Information, Communications to Holders...............................29
ARTICLE IV DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS...........................................30
Section 4.1. Distributions........................................................................30
Section 4.2. Reports to Certificateholders........................................................30
Section 4.3. Advances.............................................................................31
Section 4.4. Compliance with Withholding Requirements.............................................32
Section 4.5. Optional Exchange....................................................................32
ARTICLE V THE CERTIFICATES..........................................................................34
Section 5.1. The Certificates.....................................................................34
Section 5.2. Execution, Authentication and Delivery...............................................38
Section 5.3. Temporary Certificates...............................................................38
Section 5.4. Registration; Registration of Transfer and Exchange..................................39
Section 5.5. Mutilated, Destroyed, Lost and Stolen Certificates...................................42
Section 5.6. Distribution of Interest; Interest Rights Preserved..................................42
Section 5.7. Persons Deemed Owners................................................................43
Section 5.8. Cancellation.........................................................................43
Section 5.9. Global Securities....................................................................44
Section 5.10. Notices to Depositary................................................................45
Section 5.11. Definitive Certificates..............................................................45
Section 5.12. Currency of Distributions in Respect of Certificates.................................45
Section 5.13. Conditions of Authentication and Delivery of New Series..............................46
Section 5.14. Appointment of Paying Agent..........................................................47
Section 5.15. Authenticating Agent.................................................................48
Section 5.16. Events of Default....................................................................50
Section 5.17. Control by Holders...................................................................50
Section 5.18. Waiver of Past Defaults..............................................................50
ARTICLE VI THE DEPOSITOR AND THE ADMINISTRATIVE AGENT................................................51
Section 6.1. Preparation and Filing of Exchange Act Reports; Obligations of the Depositor
and the Administrative Agent.........................................................51
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Section 6.2. Merger or Consolidation of the Depositor or the Administrative Agent.................54
Section 6.3. Limitation on Liability of the Depositor and the Administrative Agent................55
Section 6.4. Limitation on Resignation of the Administrative Agent................................56
Section 6.5. Rights of the Depositor in Respect of the Administrative Agent.......................56
Section 6.6. Depositor May Purchase Certificates..................................................56
Section 6.7. The Administrative Agent and Other Parties...........................................57
Section 6.8. Preferential Collection of Claims Against Depositor..................................57
ARTICLE VII ADMINISTRATIVE AGENT TERMINATION EVENTS...................................................57
Section 7.1. Administrative Agent Termination Events..............................................57
Section 7.2. Trustee to Act; Appointment of Successor.............................................59
Section 7.3. Notification to Certificateholders...................................................60
Section 7.4. Waiver of Administrative Agent Termination Events....................................60
ARTICLE VIII CONCERNING THE TRUSTEE....................................................................60
Section 8.1. Duties of Trustee; Notice of Defaults................................................61
Section 8.2. Certain Matters Affecting the Trustee................................................63
Section 8.3. Trustee Not Liable for Recitals in Certificates or Underlying Securities.............64
Section 8.4. Trustee May Own Certificates.........................................................64
Section 8.5. Trustee's Fees and Expenses; Indemnification; Undertaking for Costs..................64
Section 8.6. Eligibility Requirements for Trustee.................................................65
Section 8.7. Resignation or Removal of the Trustee................................................66
Section 8.8. Successor Trustee....................................................................67
Section 8.9. Merger or Consolidation of Trustee...................................................67
Section 8.10. Appointment of Co-Trustee or Separate Trustee........................................67
Section 8.11. Appointment of Office or Agency......................................................68
Section 8.12. Representations and Warranties of Trustee............................................68
Section 8.13. Trustee to Act Only in Accordance With This Agreement or Pursuant to
Instructions of Certificateholders...................................................69
Section 8.14. Accounting and Reports to Certificateholders, Internal Revenue Service and
Others...............................................................................69
Section 8.15. Signature on Returns.................................................................69
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ARTICLE IX TERMINATION...............................................................................69
Section 9.1. Termination upon Purchase or Liquidation of All Underlying Securities................69
ARTICLE X MISCELLANEOUS PROVISIONS..................................................................71
Section 10.1. Amendment............................................................................72
Section 10.2. Counterparts.........................................................................72
Section 10.3. Limitation on Rights of Certificateholders...........................................72
Section 10.4. Governing Law........................................................................73
Section 10.5. Notices..............................................................................73
Section 10.6. Severability of Provisions...........................................................73
Section 10.7. Notice to Rating Agency..............................................................73
Section 10.8. Grant of Security Interest...........................................................74
Section 10.9. Nonpetition Covenant.................................................................75
Section 10.10. No Recourse..........................................................................75
Section 10.11. Article and Section References.......................................................75
Section 10.12. Conflict with Trust Indenture Act....................................................75
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND AGREEMENT PROVISIONS*
Trust Indenture Act
Section Agreement Section
------- -----------------
310(a)(1) .......... 8.6(a)
(a)(2) .......... 8.6(a)
(a)(3) .......... 8.10
(a)(4) .......... 8.1(d)
(a)(5) .......... 8.6(a)
(b) .......... 8.6(b), 8.7
(c) .......... Not Applicable
311(a) .......... 6.8
(b) .......... 6.8
312(a) .......... 3.19, 3.20(a)
(b) .......... 3.20(b)
(c) .......... 3.20(c)
313(a) .......... 3.21
(b) .......... 3.21
(c) .......... 3.21
(d) .......... 3.21
314(a) .......... 6.1(a), 6.1(b)
(b) .......... 6.1(c), 6.1(d)
(c)(1) .......... 6.1(f)
(c)(2) .......... 6.1(f)
(c)(3) .......... 6.1(f)
(d)(1) .......... 6.1(e)
(d)(2) .......... 6.1(e)
(d)(3) .......... Not Applicable
(e) .......... 6.1(f)
315(a) .......... 8.1(c)
(b) .......... 8.1(f)
(c) .......... 8.1(a)
(d) .......... 8.1(c)
(d)(1) .......... 8.1(c)
(d)(2) .......... 8.1(c)
(d)(3) .......... 8.1(c)
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within agreement.
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(e) .......... 8.5(c)
316(a)(1)(A) .......... 5.17
316(a)(1)(B) .......... 5.18
316(a)(2) .......... Not Applicable
316(b) .......... 5.6(f), 4.1
316(c) .......... 5.7
317(a) .......... 3.12
317(b) .......... 5.14
318(a) .......... 10.12
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TRUST AGREEMENT, dated as of [______], between STRUCTURED
OBLIGATIONS CORPORATION, a Delaware corporation, as Depositor,
and U.S. BANK NATIONAL ASSOCIATION , a national banking
association, as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the
execution and delivery of this Trust Agreement to provide for one or more Series
(and one or more Classes within each such Series) of Certificates, issuable from
time to time as provided in this Agreement. Each such Series (or each Class
within such Series) of Certificates will be issued only under a separate Series
Supplement to this Agreement duly executed and delivered by the Depositor, the
Administrative Agent, if any, specified in the applicable Series Supplement, and
the Trustee. All representations, covenants and agreements made herein by each
of the Depositor, the Administrative Agent, if any, and the Trustee are for the
benefit and security of the Certificateholders and, to the extent provided in
the applicable Series Supplement, for the benefit and security of any Credit
Support Provider. The Depositor is entering into this Agreement, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
Section 1.1 Definitions. Except as otherwise specified herein or
in the applicable Series Supplement or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement.
"Account": As defined in Section 3.10.
"Accounting Date": With respect to any Series, if applicable, as
defined in the related Series Supplement.
"Administrative Agent": With respect to any Series of
Certificates, the Person, if any, specified in the applicable Series Supplement
for such Series (which Person shall have agreed pursuant to such Series
Supplement to assume all the duties, obligations, responsibilities and
liabilities of the Administrative Agent as set forth in this Agreement and such
Series Supplement with respect to such Series), until a successor Person shall
have become the Administrative Agent pursuant to the applicable provisions of
this Agreement and such Series Supplement, and thereafter "Administrative Agent"
shall mean such successor Person.
"Accreted Amount": With respect to each Series, if applicable, as
defined in the related Series Supplement.
"Administrative Agent": With respect to each Series, if
applicable, as defined in the related Series Supplement.
"Administrative Agent Termination Event": As defined in Section
7.1.
"Administrative Fee": With respect to each Series, if applicable,
as defined in the related Series Supplement.
"Advance": As defined in Section 4.3.
"Affiliate": With respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control," when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement": With respect to any Series of Certificates, this
Trust Agreement and all amendments hereof and, unless the context otherwise
requires, the related Series Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 5.1
with respect to the Certificates of any Series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the
applicable Series Supplement, with respect to any Distribution Date in respect
of a given Series or Class, the sum of (i) all amounts actually received on or
with respect to the Underlying Securities (including Liquidation Proceeds and
investment income on amounts in the Accounts) with respect to such Series during
the related Collection Period, (ii) all amounts received pursuant to any Credit
Support Instruments with respect to such Series for such Distribution Date and
(iii) all other amounts, if any, specified by the applicable Series Supplement.
"Basic Documents": With respect to any Series, if applicable,
as defined in the related Series Supplement.
"Board of Directors": Either the Board of Directors of the
Depositor or any executive or committee of such Board duly authorized under
applicable law to act on behalf of such Board.
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"Board Resolution": A copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification and delivery to the Trustee.
"Business Day": With respect to any Place of Distribution
specified pursuant to Section 5.1, any day that is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies in such
Place of Distribution are authorized or obligated by law, regulation or
executive order to close or any day that is not a business day with respect to
the Underlying Securities, except as otherwise specified pursuant to Section
5.1.
"Calculation Agent": With respect to each Series, if applicable,
as defined in the related Series Supplement.
"Call Premium Percentage": With respect to any Series (or
Class within such Series), if applicable, as defined in the related Series
Supplement.
"Certificate Account": As defined in Section 3.9.
"Certificate Owners": As defined in Section 5.9.
"Certificate Principal Balance": With respect to any Series, the
aggregate Stated Amount of the Certificates of such Series.
"Certificate Register" and "Certificate Registrar": As respectively
defined in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": With respect to each Series, any trust
certificates authorized by, and authenticated and delivered under, this
Agreement and as defined in the related Series Supplement.
"Class": With respect to any Series, any one of the classes
of Certificates of such Series, each consisting of Certificates having
identical terms.
"Closing Date": With respect to any Series, the day on which
Certificates of such Series are first executed, authenticated and delivered.
"Code": The Internal Revenue Code of 1986 and Treasury
Regulations promulgated thereunder.
"Collection Period": With respect to any Distribution Date
for a Series (or Class within such Series), the period specified in the related
Series Supplement.
"Commission": The Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution and delivery of this Agreement such Commission is not
existing and performing the duties now assigned to it, then the body then
performing such duties.
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"Corporate Trust Office": The principal corporate trust office
of the Trustee located at the address set forth in the related Series Supplement
or such other addresses as the Trustee may designate from time to time by notice
to the Holders, the Administrative Agent, if any, and the Depositor, or the
principal corporate trust office of any successor Trustee (or such other
addresses as a successor Trustee may designate from time to time by notice to
the Holders, the Administrative Agent, if any, and the Depositor).
"Credit Support": With respect to any Series (or any Class
within such Series), a letter of credit, surety bond, swap agreement, put or
call option or other asset intended to support or ensure the timely or ultimate
distributions of amounts due in respect of all or certain of the Underlying
Securities for such Series or Class, which in each case is specified as such in
the related Series Supplement.
"Credit Support Instrument": The instrument or document
pursuant to which the Credit Support for a given Series (or any Class within
such Series) is provided, as specified in the applicable Series Supplement.
"Credit Support Provider": With respect to any Series (or any
Class within such Series), the Person, if any, that will provide any Credit
Support with respect to all or a portion of the Underlying Securities for such
Series or Class as specified in the applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, if applicable, the
date specified as such in the related Series Supplement. For purposes of this
Agreement, any Underlying Security acquired by the Depositor after the
applicable Cut-off Date but prior to the applicable Closing Date and included in
the related Trust as of such Closing Date shall be deemed to have been
Outstanding as of such Cut-off Date and references to the principal balance of
such Underlying Security as of such Cut-off Date shall be deemed to be to the
principal balance of such Underlying Security as of the date on which it was
acquired by the Depositor.
"Definitive Certificates": As defined in Section 5.9.
"Deleted Underlying Security": An Underlying Security
replaced or to be replaced by a Qualified Substitute Underlying Security.
"Depositary": With respect to the Certificates of any Series
(or Class within such Series) issuable in whole or in part in the form of one or
more Global Securities, the Person designated as Depositary by the Depositor
pursuant to Section 5.1 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Certificates of any such Series or Class shall mean
the Depositary with respect to the Certificates of that Series or Class.
4
"Depositor" or "Trustor": Structured Obligations Corporation,
a Delaware corporation, and, if a successor Person shall have become the
Depositor pursuant to any applicable provisions of this Agreement, "Depositor"
shall mean such successor Person.
"Depositor Order" or "Depositor Request," or "Trustor Order"
or "Trustor Request": A written order or request, respectively, signed in the
name of the Depositor by any of its Chief Executive Officer, Chief Financial
Officer, Chief Operating Officer, President, a Vice President, its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee.
"Depository Agreement": If applicable, the agreement pursuant
to which the Depositary will agree to act as Depositary with respect to any
Series (or Class within such Series) of Certificates in accordance with Section
5.9.
"Discount Certificate": Any Certificate that is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
any other Certificate designated by the Depositor as issued with original issue
discount for United States Federal income tax purposes.
"Distribution Date": With respect to any Series (or Class
within such Series) of Certificates, each date specified as a "Distribution
Date" for such Series (or Class) in the related Series Supplement.
"Dollar" or "$" or "USD": Such currency of the United States
as at the time of payment is legal tender for the payment of public and private
debts.
"Eligible Account": Either (i) an account or accounts
maintained with a Federal or State chartered depositary institution or trust
company the long term unsecured debt obligations of which are rated by the
Rating Agency the higher of (x) at least the then current long-term rating of
the Underlying Securities and (y) in one of its two highest long-term rating
categories (unless otherwise specified in the Series Supplement) at the time any
amounts are held in deposit therein or (ii) a trust account or accounts
maintained as a segregated account or as segregated accounts and held by a
Federal or State chartered depositary institution or trust company in trust for
the benefit of the Certificateholders, provided, however, that such depositary
institution or trust company has a long-term rating in one of the four highest
categories by the Rating Agency.
"Event of Default": With respect to any Series (or Class
within such Series) of Certificates, if applicable, as specified in the related
Series Supplement.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent": With respect to any Series (or Class
within such Series) of Certificates, if applicable, the Depositor or its agent
so specified in the related Series Supplement.
"Executive Officer": With respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Vice President, the
5
Secretary or the Treasurer of such corporation; with respect to any partnership,
any general partner thereof.
"Extraordinary Trust Expense": With respect to any Series, if
applicable, as specified in the related Series Supplement.
"Final Scheduled Distribution Date": With respect to each
Series, as defined in the Series Supplement.
"Fixed Pass Through Rate": With respect to any Fixed Rate
Certificate, the fixed rate of interest of such Fixed Rate Certificate.
"Fixed Rate Certificate": A Certificate that provides for a
payment of interest at a Fixed Pass Through Rate.
"Floating Pass Through Rate": With respect to any Floating
Rate Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate": A Certificate that provides for
the payment of interest at a Floating Pass Through Rate determined periodically
by reference to a formula specified pursuant to Section 5.1 and the related
Series Supplement.
"Foreign Currency": A currency issued by the government of any
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
"Global Security": A Certificate evidencing all or part of a
Series (or Class within such Series) of Certificates, issued to the Depositary
for such Series or Class in accordance with Section 5.9 and bearing the legend
prescribed therein.
"Guaranteed Investment Contract": With respect to any Series
(or Class within such Series), a guaranteed investment contract or surety bond
provided for in the related Series Supplement, sold as part of the Trust or to
the Trustee for the benefit of the Certificateholders for such Series, providing
for the investment of funds in a related Account or related Accounts and
insuring a minimum or a fixed rate of return on the investment of such funds,
which contract or surety bond shall be an obligation of an insurance company or
other entity the long term unsecured debt obligations of which are rated by the
Rating Agency at the time of purchase of such guaranteed investment contract or
surety bond no lower than the rating on the Underlying Securities and shall
satisfy any other requirements specified in such Series Supplement.
"Holder": The holder of a Certificate.
"Independent": When used with respect to any specified Person
means that the Person specifies he or she (1) is in fact independent of the
Depositor and the Administrative Agent, if any, and of any Affiliate of any of
the foregoing Persons, (2) does not have any direct or indirect financial
interest in the Depositor or the Administrative Agent, if any, or in any
Affiliate of either of the foregoing Persons which is
material with respect to such Person and (3) is not connected
with the Depositor or the Administrative Agent, if any, as an officer,
6
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
"Independent Certificate" means a certificate of an
Independent Person, as required by the TIA.
"Letter of Credit": With respect to any Series or Class within
such Series, the letter of credit, if any, providing for the payment of all or a
portion of amounts due in respect of such Series or Class, issued to the
Trustee, for the benefit of the Holders of such Series or Class, by the related
Credit Support Provider, all as specified in the related Series Supplement.
"Limited Guarantor": With respect to the Underlying Securities
relating to any Series (or Class within such Series), if applicable, a Person
specified in the related Series Supplement as providing a guarantee or insurance
policy or other credit enhancement supporting the distributions in respect of
such Series (or Class) as and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or Class within
such Series, if applicable, any guarantee of or insurance policy or other
comparable form of credit enhancement with respect to amounts required to be
distributed in respect of such Series or Class or payments under all or certain
of the Underlying Securities relating to such Series or Class, executed and
delivered by a Limited Guarantor in favor of the Trustee, for the benefit of the
Certificateholders, as specified in the related Series Supplement.
"Liquidation Proceeds": The amounts received by the
Administrative Agent, if any, or the Trustee in connection with (i) the
liquidation of a defaulted Underlying Security or collateral, if any, related
thereto or (ii) the repurchase, substitution or sale of an Underlying Security.
"Notional Amount": With respect to any Class of Certificates,
if applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"Officer's Certificate": A certificate signed by any one (or,
if specified in this Agreement or any Series Supplement, more than one)
Executive Officer of the Depositor or Administrative Agent, as applicable, or,
in the case of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel, who may,
except as otherwise expressly provided in this Agreement, be counsel for the
Depositor or the Administrative Agent, if any, acceptable to the Trustee, except
that any opinion of counsel relating to the qualification of any account
required to be maintained pursuant to this Agreement as an Eligible Account must
state that it is an opinion of counsel who is in fact Independent of the
Depositor and the Administrative Agent, if any.
"Optional Exchange Date": With respect to any Series (or Class
with such Series), if applicable, as defined, in the related Series Supplement.
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"Outstanding": With respect to Certificates of a specified
Series (or Class within such Series), as of any date of determination, all such
Certificates theretofore authenticated and delivered under this Agreement and
the related Series Supplement except:
(i) Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation;
and
(ii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented that
any such Certificates are held by a bona fide purchaser in whose hands
such Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Depositor, or any Affiliate thereof,
shall be disregarded and deemed not to be Outstanding, and the Voting Rights to
which its Holder would otherwise be entitled shall not be taken into account in
determining whether the requisite percentage of aggregate Voting Rights
necessary to effect any such consent or take any such action has been obtained
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates with respect to which the Depositor has provided the
Trustee an Officer's Certificate stating that such Certificates are so owned
shall be so disregarded. Certificates so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee by certifying to such effect in an Officer's
Certificate the pledgee's right so to act with respect to such Certificates and
that the pledgee is not, to the actual knowledge of the Trustee without any duty
of investigation, the Depositor, the Administrative Agent, if any, or any
Affiliate of any thereof. The principal amount or notional amount, as
applicable, of a Discount Certificate that shall be deemed to be Outstanding for
the determination referred to in the foregoing proviso shall be the Stated
Amount or Notional Amount, as applicable, with respect thereto as of the date of
such determination, and the principal amount or notional amount, as applicable,
of a Certificate denominated in a Foreign Currency that shall be deemed to be
Outstanding for purposes of the determination referred to in the foregoing
provision shall be the amount calculated pursuant to Section 5.12(c).
"Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
"Pass Through Rate": With respect to any Series (or Class
within such Series) of Certificates (except certain Discount Certificates and
Certificates entitled to nominal or no interest distributions), the annual rate
at which interest accrues on the Certificates of such Series (or Class), which
may be a fixed rate or a floating rate of interest, determined upon the basis
and in the manner specified in the related Series Supplement.
"Paying Agent": As defined in Section 5.14.
8
"Percentage Interest": With respect to a Certificate of any
Series or Class within a Series, the portion of such Series or Class evidenced
by such Certificate, expressed as a percentage, equal to the product of (x) a
fraction, the numerator of which is the initial Stated Amount or Notional
Amount, as applicable, represented by such Certificate and the denominator of
which is the aggregate initial Stated Amount or Notional Amount, as applicable,
of all the Certificates of such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series, unless
otherwise specified in the related Series Supplement, any one or more of the
following obligations or securities, provided that the total return specified by
the terms of each such obligation or security is at least equal to the purchase
price thereof:
(iii) direct obligations of, and obligations fully
guaranteed by, the United States, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, the Federal
Farm Credit System or any agency or instrumentality of the United
States the obligations of which are backed by the full faith and
credit of the United States of America; provided that obligations
of, or guaranteed by, the Federal Home Loan Mortgage Corporation,
the Federal National Mortgage Association or the Federal Farm
Credit System shall be Permitted Investments only if, at the time
of investment, it has the rating specified in such Series Supplement
for Permitted Investments;
(iv) demand and time deposits in, certificates
of deposit of, or banker's acceptances issued by, any depository
institution or trust company (including the Trustee or any agent of
the Trustee acting in their respective commercial capacities)
incorporated under the laws of the United States or any State and
subject to supervision and examination by Federal and/or State
banking authorities so long as the commercial paper and/or the
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution which is the
principal subsidiary of a holding company, the commercial paper or
other short-term debt obligations of such holding company) at the
time of such investment or contractual commitment providing for such
investment have the rating specified in such Series Supplement for
Permitted Investments; provided, however, that such rating shall be
no lower than the rating on the Underlying Securities at the time of
purchase of the investments;
(v) repurchase agreements with respect to (a) any
security described in clause (i) above or (b) any other security issued
or guaranteed by an agency or instrumentality of the United States,
with an entity having the credit rating specified in such Series
Supplement for Permitted Investments;
(vi) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States or any State that have the rating specified in such Series
Supplement for Permitted Investments at the time of such investment or
contractual commitment providing for such investment; provided,
however, that such rating shall be no lower than the rating on the
Underlying Securities; provided further that securities issued by any
particular corporation will not be Permitted Investments to the extent
that investment therein will cause the then outstanding principal
9
amount of securities issued by such corporation and held as part of
the Trust for such Series to exceed 10% of the aggregate outstanding
principal balances and amounts of all the Underlying Securities and
Permitted Investments held as part of the Trust for such Series;
(vii) commercial paper having at the time of such
investment the rating specified in such Series Supplement for
Permitted Investments; and
(viii) a Guaranteed Investment Contract if and only if
specified in such Series Supplement, provided that the Rating Agency
Condition is met.
"Person": Any individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Distribution": With respect to any Series (or Class
within such Series) of Certificates, the place or places where the principal of
(and premium, if any) and interest on the Certificates of such Series (or Class)
are distributable as specified pursuant to Section 5.1 (6).
"Predecessor Certificate": With respect to any particular
Certificate, every previous Certificate evidencing all or a portion of the same
interest as that evidenced by such particular Certificate; and, for the purpose
of this definition, any Certificate authenticated and delivered under Section
5.5 in lieu of a lost, destroyed or stolen Certificate shall be deemed to
evidence the same interest as the lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price": With respect to any Underlying Security
required to be repurchased by the Underlying Security Provider pursuant to
Section 2.3 and as confirmed by an Officer's Certificate from the Administrative
Agent, if any, or the Depositor, as the case may be, to the Trustee, an amount
equal to the sum of (i) the greater of (x) 100% of the principal balance thereof
as of the date of such purchase and (y) if the Underlying Security was purchased
at a premium above face value, the price paid therefor, (ii) accrued and unpaid
interest thereon from the immediately preceding interest allocation date, or if
no interest has been paid to the Trust with respect thereto, from the Cut-Off
Date, in each case at a rate equal to the Fixed Pass Through Rate or the then
applicable Floating Pass Through Rate, as the case may be, as specified in the
applicable Series Supplement, on the principal balance of such Underlying
Security as of the close of business on the Business Day immediately preceding
the date of purchase or such other day as may be specified in the applicable
Series Supplement on which such purchase is to occur, (iii) any unreimbursed
Advances and any unpaid Administrative Fees allocable to such Underlying
Security, (iv) expenses reasonably incurred or to be incurred by the
Administrative Agent, if any, or the Trustee in respect of the breach or defect
giving rise to the purchase obligation, including any expenses arising out of
the enforcement of the purchase obligation and (v) any realized losses
previously incurred with respect to such Underlying Security and allocated to
Certificateholders on or before the date of purchase.
10
"Qualified Substitute Underlying Security": With respect to
any Series, if applicable, as defined, in the related Series Supplement.
"Rating Agency": With respect to any Series (or Class within
such Series), as defined in the related Series Supplement.
"Rating Agency Condition": With respect to any action or
occurrence, unless otherwise specified in the applicable Series Supplement, that
each Rating Agency shall have been given notice thereof and that each Rating
Agency shall have notified the Depositor, the Trustee and the Administrative
Agent, if any, in writing that such action or occurrence will not result in a
reduction or withdrawal of the then current rating of any Certificate of the
applicable Series.
"Record Date": With respect to any Distribution Date for any
Series (or Class within such Series) of Certificates, the date specified in the
related Series Supplement.
"Required Interest": Unless otherwise specified in the related
Series Supplement, with respect to the Outstanding Certificates of any Series or
any Class thereof, the accrued and undistributed interest on the Stated Amount
or Notional Amount of such Outstanding Certificates computed at the applicable
Pass Through Rate.
"Required Percentage--Administrative Agent Termination":
Unless otherwise specified in the related Series Supplement, greater than 50% of
the aggregate Voting Rights of Certificates of such Series.
"Required Percentage--Amendment": Unless otherwise specified
in the related Series Supplement, 66-2/3% of the aggregate Voting Rights of
Certificates of such Series (or of a designated Class or group of Classes within
such Series) (either voting as separate Classes or as a single Class) applicable
to such matter, all as specified in the applicable Series Supplement.
"Required Percentage--Definitive Certificates": Unless
otherwise specified in the related Series Supplement, greater than 50% of the
aggregate Voting Rights of Certificates of such Series.
"Required Percentage--Direction of Trustee": Unless otherwise
specified in the related Series Supplement, greater than 50% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage--Remedies": Unless otherwise specified in
the related Series Supplement, at least 66-2/3% of the aggregate Voting Rights
of Certificates of such Series.
"Required Percentage--Removal of Trustee": Unless otherwise
specified in the related Series Supplement, greater than 50% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage--Waiver": Unless otherwise specified in
the related Series Supplement, at least 66-2/3% of the aggregate Voting Rights
of Certificates of such Series.
11
"Required Premium": If applicable, unless otherwise specified
in the related Series Supplement, with respect to the Certificates of any Series
or any Class thereof, an amount equal to the product, as determined on any
Distribution Date with respect to such Series or Class, of (i) the Required
Principal for such Series or Class and (ii) the Call Premium Percentage for such
Series or Class.
"Required Principal": As determined for any Distribution Date
for a given Series (or Class within such Series), unless otherwise specified in
the related Series Supplement, the amounts on deposit in the Certificate Account
allocable to principal payments on the Underlying Securities (including from
Credit Support, if any, and Advances, if any, but excluding amounts in respect
of principal payments to the extent that Advances with respect thereto were
distributed as Required Principal on a prior Distribution Date) and required to
be distributed in respect of Certificates of such Series (or Class) in
accordance with the terms of such Certificates and such related Series
Supplement.
"Required Rating": With respect to any Series (or Class within
such Series), the rating category (or categories) specified in the Series
Supplement that, as a condition to the issuance of such Series or Class, is (or
are) the lowest category (or categories) in which the Certificates of such
Series or Class may be categorized by the Rating Agency.
"Requisite Reserve Amount": As of any date with respect to any
Series (or Class within such Series) of Certificates, the amount, if any,
required to be maintained in the Reserve Account, if any, for such Series or
Class as specified in or determined pursuant to the related Series Supplement.
"Reserve Account": An Eligible Account, if any, created and
maintained pursuant to Section 3.11.
"Responsible Officer": With respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Retained Interest": If applicable, with respect to any
Underlying Security, an ownership interest in and a right to a portion of the
payments thereon payable by the obligor thereof, as specified in the Underlying
Securities Schedule to the related Series Supplement, held by the Person so
specified in such Underlying Securities Schedule.
"Scheduled Final Distribution Date": With respect to any
Certificate, the date on which all the unpaid principal of (and premium, if any,
on) such Certificate is scheduled, without giving effect to any prepayment,
exchange or early termination, to become due and payable as provided therein and
in the applicable Series Supplement.
"Series": A separate series of Certificates issued pursuant to
this Agreement and a related Series Supplement, which series may be divided into
two or more Classes, as provided in such Series Supplement.
12
"Series Supplement": An agreement supplemental to this
Agreement that authorizes the issuance of a particular Series (and each Class
within such Series) of Certificates.
"Specified Currency": As defined in the related Series
Supplement.
"State": Any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ or the
District of Columbia.
"Stated Amount": With respect to an Outstanding Certificate,
as determined at any time, the maximum amount that the Holder thereof is
entitled to receive as distributions allocable to principal payments on the
Underlying Securities. The Stated Amount, if any, of any Class within a given
Series (other than those Classes, if any, specified in the related Series
Supplement), as of any date of determination, shall be equal to the aggregate
initial Stated Amount thereof less the sum of (i) all amounts allocable to prior
distributions made to such Class in respect of principal of the Underlying
Securities and (ii) any reductions attributable to Certificates surrendered in
exchange for Underlying Securities, as and to the extent provided in the
applicable Series Supplement.
"Sub-Administration Account": As defined in Section 3.8.
"Sub-Administration Agreement": The written contract, if any,
between the Administrative Agent, if any, specified in the applicable Series
Supplement, or Trustee and a Sub-Administrative Agent and any successor
Administrative Agent or Trustee or Sub-Administrative Agent relating to the
administration of an Underlying Security or certain Underlying Securities as
provided in Section 3.2.
"Sub-Administrative Agent": Any Person with which the
Administrative Agent, if any, specified in the applicable Series Supplement, or
the Trustee has entered into a Sub-Administration Agreement and which meets the
qualifications of a Sub-Administrative Agent pursuant to Section 3.2.
"Surety Bond": If so specified in the Series Supplement, with
respect to any Series (or Class within such Series) of Certificates, the surety
bond providing for the distribution under certain circumstances specified in
such Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of such
Certificateholders by the related Credit Support Provider, all as specified in
such Series Supplement.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated asset or
pool of assets subject hereto, constituting the trust created hereby and by the
related Series Supplement and to be administered hereunder and thereunder,
consisting of those Underlying Securities and the Credit Support, if applicable,
and all sums distributed in respect thereof that are specified as being part of
the Trust for such Series in the related Series Supplement, all for the benefit
of the Certificateholders of such Series as of any particular time.
"Trustee": With respect to any Series, the Person so specified
in the applicable Series Supplement (which Person
shall have agreed pursuant to such Series Supplement to
13
assume all the duties, obligations, responsibilities and liabilities of the
Trustee as set forth in this Agreement and such Series Supplement with respect
to the related Series of Certificates) for such Series or any co-trustee
appointed pursuant to Section 8.10, until a successor Person shall have become
the Trustee pursuant to the applicable provisions of this Agreement and the
applicable Series Supplement, and thereafter "Trustee" shall mean such
successor Person.
"Trust Termination Event": With respect to any Series, as
specified in the related Series Supplement.
"Underlying Security Provider": With respect to any Underlying
Security purchased pursuant to an Underlying Security Purchase Agreement, each
entity specified as such in the applicable Series Supplement or its successor in
interest.
"Underlying Security Purchase Agreement": With respect to
certain Series of Certificates, as designated in the applicable Series
Supplement, the purchase agreement providing for the purchase by the Depositor
of one or more Underlying Securities for such Series, substantially in the form
acceptable to the Depositor, provided, that if required by the applicable Series
Supplement, such agreement shall provide for the repurchase of such Underlying
Securities on the terms set forth in Section 2.3.
"Underlying Securities": With respect to any Series, the asset
or assets sold as part of the Trust for such Series or acquired (or, in the case
of an agreement, entered into) by the Trustee for the benefit of the Holders of
such Series and, if and to the extent provided in the applicable Series
Supplement, for the benefit of any Credit Support Provider, all as identified in
the Underlying Securities Schedule to the related Series Supplement. The
Underlying Securities for any such Series or the related Trust shall not
constitute Underlying Securities for any other Series or any other Trust.
"Underlying Securities Issuer": As defined in the related
Series Supplement.
"Underlying Securities Schedule": With respect to any Series,
a listing of the Underlying Securities for such Series as of the Closing Date,
including, with respect to each Underlying Security, the obligor and the
principal balance thereof, which shall be attached to such Series Supplement as
Schedule A.
"Uniform Commercial Code": The Uniform Commercial Code as in
effect in the relevant jurisdiction.
"United States": The United States of America (including the
States), its territories, its possessions and other areas subject to its
jurisdiction.
"Voting Rights": With respect to any Series (or Class within
such Series) of Certificates, the portion of the aggregate voting rights of the
Certificates of such Series or Class which shall be allocated to any Certificate
as specified in the applicable Series Supplement.
Section 1.2. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
14
(ii) an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted
accounting principles as in effect in the United States from time to
time;
(iii) "or" is not exclusive;
(iv) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not
to any particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in
the plural include the singular.
ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts; Assignment of
Underlying Securities. (a) The Depositor, concurrently with the execution and
delivery hereof, does hereby agree to (i) sell, assign, convey and set-over to
the Trustee, on behalf and for the benefit of the Certificateholders of each
given Series of Certificates and without recourse, all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under the Underlying Securities
attributable to each such Series (except for the Underlying Securities
attributable to such Series which are not to be sold by the Depositor, as
specified in the Underlying Securities Schedule to the applicable Series
Supplement), in each case as identified on the applicable Underlying Securities
Schedule, and all other assets included or to be included in the respective
Trust for the benefit of the Certificateholders of each such Series or (ii)
deliver to the Trustee for deposit in the Certificate Account an amount, in
immediately available funds in a form acceptable to the Trustee, sufficient to
acquire the Underlying Securities attributable to such Series, in each case as
identified on the Underlying Security Schedule to the applicable Series
Supplement, and all other assets to be included in the respective Trust for the
benefit of the Certificateholders of each such Series. Each such sale will
include all interest, premium (if any) and principal received by or on behalf
of the Depositor of, on or with respect to any such Underlying Securities due
after the applicable Cut-off Date, and, unless otherwise specified in the
Series Supplement, will exclude (i) all interest, premium (if any) and principal
of, on or with respect to any such Underlying Securities due on or before the
applicable Cut-off Date and (ii) any Retained Interest in any such Underlying
Security.
(b) In connection with each sale referred to in the preceding
paragraph, the Depositor shall, not later than the applicable Closing Date,
(i) deposit the Underlying Securities for a given Series (except for the
Underlying Securities attributable to such Series which are to be acquired
from a Person other than the Depositor, as specified on the Underlying
Securities Schedule to the applicable Series Supplement) with the Trustee by
physical delivery of such Underlying Securities, duly endorsed, to the
Trustee or by causing such Underlying Securities to be registered by
book entry in the name of the Trustee and (ii) with respect to each such
15
Underlying Security, deliver or cause to be delivered to the Trustee all
documents necessary to transfer ownership of each such Underlying Security to
the Trustee.
(c) Unless otherwise specified in the applicable Series
Supplement, the sale of such Underlying Securities by the Depositor for a given
Series accomplished hereby and by such Series Supplement is absolute and is
intended by the parties hereto as a sale and not a loan. The Depositor
represents and covenants that the Underlying Securities as of the respective
Closing Dates will be free and clear of any right, charge, security interest
or lien or claim in favor of the Depositor and, with respect to any sale of
Underlying Securities, that the Depositor will as of such respective Closing
Date have the right to sell the applicable Underlying Securities to the Trustee.
Section 2.2. Acceptance by Trustee. (a) With respect to each
Series, the Trustee will acknowledge receipt by it, or by a custodian on its
behalf, of the related Underlying Securities and the related documents referred
to in Section 2.1, now existing or hereafter acquired, and declares that it will
hold such Underlying Securities and documents and all other documents
delivered to it pursuant to this Agreement, and that it will hold all such
assets and such other assets (including Underlying Securities acquired
from a Person other than the Depositor) comprising the Trust for a given
Series of Certificates, in trust for the exclusive use and benefit of all
present and future Certificateholders of such Series and for the purposes and
subject to the terms and conditions set forth in this Agreement.
(b) The Trustee, or a custodian on its behalf, shall review
all documents received by it pursuant to Section 2.1 within 45 days after
receipt thereof. If in the process of reviewing such documents the Trustee
or such custodian discovers any document or documents to be missing or
defective, the Trustee shall promptly (but in any event within 10 Business
Days) so notify the Depositor and the Administrative Agent, if any. In addition,
upon the discovery by the Depositor, the Administrative Agent, if any, or the
Trustee of a breach of any of the representations and warranties made by any
Underlying Security Provider in the related Underlying Security Purchase
Agreement, if any, in respect of any Underlying Security that materially and
adversely affects the interests of the Certificateholders, the party
discovering such breach shall give prompt written notice to the other parties
hereto (but in any event within 10 Business Days).
Section 2.3. Repurchase or Substitution of Certain Underlying
Securities by the Underlying Security Provider. (a) If and to the extent
provided for in a Series Supplement relating to a given Series of Certificates,
upon discovery or receipt of notice pursuant to Section 2.2 that a document is
missing or defective, the Trustee shall immediately notify the Depositor, the
Administrative Agent, if any, and each Rating Agency that such document is
defective or missing and, unless the Depositor provides to the Trustee an
Officer's Certificate stating such missing or defective document will not have
a materially adverse effect on the related Trust, the Administrative Agent,
if any, or the Trustee shall immediately so notify the Underlying Security
Provider and require that the Underlying Security Provider deliver such
missing document or cure such defect within 60 days from the date on which such
Underlying Security Provider was first notified of such missing document
or defect, and if such Underlying Security Provider does not deliver such
missing document or cure such defect in all material respects during such
period, the Administrative Agent, if any, or the Trustee shall use its best
16
efforts to enforce the Underlying Security Provider's obligation, if any,
under the related Underlying Security Purchase Agreement to repurchase such
Underlying Security from the Trustee at the applicable Purchase Price
within 90 days after the date on which the Underlying Security Provider was
first notified of such missing document or defect. The Purchase Price for the
repurchased Underlying Security shall be delivered to the Administrative Agent,
if any, or to the Trustee directly for deposit in the Certificate Account and
the Trustee, upon receipt either of certification by the Administrative Agent,
if any, of such deposit or of such deposit directly, shall release to the
Underlying Security Provider the related documents in its possession and
shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be necessary to vest in the Underlying
Security Provider any Underlying Security released pursuant hereto, and the
Trustee shall have no further obligations with regard to such documents.
The foregoing notwithstanding, if and to the extent the Series Supplement
provides, the Underlying Security Provider may, as an alternative to
repurchasing any such Underlying Security as provided above, if and to the
extent so provided in the Underlying Security Purchase Agreement, cause such
Underlying Security to be removed from the Trust (in which case it shall become
a Deleted Underlying Security) by agreeing to substitute one or more Qualified
Substitute Underlying Securities in the manner and subject to the limitations
set forth in Section 2.3(b) and the related Series Supplement. It is understood
and agreed that the obligation of the Underlying Security Provider to repurchase
or substitute for any Underlying Security as to which a constituent document is
missing or a defect in a constituent document exists shall, if such defect is
not cured or such missing document is not provided, constitute (unless otherwise
specified in the applicable Series Supplement) the sole remedy respecting such
omission or defect available to the Certificateholders or the Trustee on behalf
of the Certificateholders. It is further understood and agreed that, unless
otherwise provided in the related Series Supplement, in no event shall either
the Depositor or the Administrative Agent, if any, be obligated to repurchase or
substitute for such an Underlying Security, regardless of whether the Underlying
Security Provider defaults on its obligation to repurchase or substitute for
such an Underlying Security.
(b) If and to the extent provided for in a Series
Supplement relating to a given Series of Certificates, with respect to any
Deleted Underlying Security for which the Depositor or the Underlying Security
Provider substitutes a Qualified Substitute Underlying Security or Assets, such
substitution shall be effected by the Depositor or Underlying Security Provider
delivering to the Trustee or a custodian on its behalf such Qualified Substitute
Underlying Security or Assets and such documents and agreements, with all
necessary endorsements thereon, as would be required under the terms of Section
2.1, together with an Officer's Certificate of the Depositor or relevant
Underlying Security Provider certifying that each such Qualified Substitute
Underlying Security satisfies the definition thereof and the requirements under
this Section. The Trustee or such custodian shall acknowledge receipt of such
Qualified Substitute Underlying Security or Assets and, within five Business
Days thereafter, review such documents in the manner specified in Section 2.2.
The Depositor shall give or cause to be given written notice to the
Certificateholders of such Series and each Rating Agency that such substitution
has taken place and shall amend the Underlying Security Schedule to reflect the
removal of such Deleted Underlying Security from the terms of this
Agreement and the substitution of the Qualified Substitute Underlying
Security or Assets. Upon such substitution, such Qualified Substitute Underlying
Security or Assets shall be subject to the terms of this Agreement in all
respects, including those related to the
representations and warranties included
17
in the Underlying Security Purchase Agreement as of the date of
substitution. The terms upon which such substitution may be effected shall be
specified in the applicable Series Supplement.
Section 2.4. Representations and Warranties of the
Depositor and Representations, Warranties and Covenants of the Administrative
Agent. (a) The Depositor hereby represents and warrants to the Trustee that as
of the Closing Date or as of such other date specifically provided herein or in
the applicable Series Supplement:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(ii) with respect to each Series Supplement, to the Depositor's
knowledge, the information set forth in the Underlying Security
Schedule with respect to each Underlying Security is true and correct
in all material respects at the date or dates respecting which such
information is furnished;
(iii) the execution and delivery of this Agreement by the
Depositor and its performance of and compliance with the terms of this
Agreement will not violate the Depositor's articles of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or
other instrument to which the Depositor is a party or which may be
applicable to the Depositor or any of its assets;
(iv) the Depositor has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement and has duly executed and delivered this
Agreement. This Agreement, upon its execution and delivery by the
Depositor and assuming due authorization, execution and delivery by
the Trustee, will constitute a valid, legal and binding obligation of
the Depositor, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement
is considered a proceeding in equity or at law);
(v) the Depositor is not in violation, and the execution and
delivery of this Agreement by the Depositor and its performance and
compliance with the terms of this Agreement will not constitute a
violation, of any order or decree of any court or any order or
regulation of any Federal, State, municipal or governmental agency
having jurisdiction over the Depositor or its properties, which
violation would reasonably be expected to have a material and
adverse effect on the condition (financial or otherwise) or
operations of the Depositor or its properties or on the performance
of its duties hereunder; and (vi) any additional representations and
warranties, if any, that may be specified in the applicable Series
Supplement.
It is understood and agreed that the representations and
warranties of the Depositor set forth in this Section 2.4(a) shall survive
delivery of the respective documents to the Trustee and shall inure to the
benefit of the Trustee on behalf of the Certificateholders
18
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, the Administrative Agent, if any, or the
Trustee of a breach of any of the foregoing representations and warranties
which materially and adversely affects the interests of the Certificateholders,
the party discovering such breach shall give prompt written notice thereof to
the other parties.
(b) The Administrative Agent, if any, shall make such
representations, warranties, if any, and covenants that may be specified
in the applicable Series Supplement.
Upon discovery by any of the Depositor, the Administrative Agent,
if any, or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the interests of the Certificateholders, the party discovering such breach shall
give prompt written notice thereof to the other parties.
Section 2.5. Breach of Representation, Warranty or Covenant. (a)
Within 20 days of the earlier of discovery by the Depositor or receipt of
notice by the Depositor of a breach of any representation or warranty of the
Depositor set forth in Section 2.4(a) that materially and adversely affects the
interests of the Certificateholders of a given Series of Certificates, the
Depositor shall cure such breach in all material respects.
(b) With respect to an Administrative Agent appointed pursuant to
the applicable Series Supplement, within 20 days of the earlier of
discovery by such Administrative Agent or receipt of notice by such
Administrative Agent of a breach of any representation, warranty or covenant of
such Administrative Agent set forth in the applicable Series Supplement that
materially and adversely affects the interests of the Certificateholders, such
Administrative Agent shall cure such breach in all material respects.
Section 2.6. Agreement to Authenticate and Deliver Certificates.
With respect to each Series of Certificates and the related Trust, the Trustee
hereby agrees and acknowledges that it will, concurrently with the sale to and
receipt by it of the related Underlying Securities and delivery to it of
executed Certificates of such Series, cause to be authenticated and delivered to
or upon the order of the Depositor, in exchange for the Underlying Securities
and such other assets constituting the Trust for a given Series, Certificates
duly authenticated by or on behalf of the Trustee in authorized denominations
evidencing ownership of the entire Trust for such Series, all in accordance
with the terms and subject to the conditions of Sections 5.2 and 5.13.
Section 2.7. Statement of Intent. It is the intention of the
parties hereto that, for purposes of federal income taxes, state and local
income and franchise taxes and any other taxes imposed upon, measured by
or based upon gross or net income, each Trust shall be treated as a grantor
trust, but failing that, as a partnership. The terms of this Agreement shall
be interpreted to further this intention of the parties. The parties hereto
agree that, unless otherwise required by appropriate tax authorities, each
Trust shall file or cause to be filed annual or other necessary returns, reports
and other forms consistent with such intended characterization. Each
Certificateholder and each beneficial owner of a Certificate by acceptance of
its Certificate (or its beneficial interest therein) agrees, unless otherwise
required by appropriate tax authorities, to file its own tax returns and
reports in a manner consistent with such characterization.
19
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust. (a) The Trustee (and,
to the extent required in the applicable Series Supplement, any Administrative
Agent) shall administer the Underlying Securities for each given Trust for the
benefit of the Certificateholders of the related Series. In engaging in such
activities, the Trustee (or the Administrative Agent, if applicable) shall,
subject to the provisions of Article VI hereof, follow or cause to be
followed collection procedures in accordance with the terms of this Agreement
and the applicable Series Supplement, the respective Underlying Securities
and any applicable Credit Support Instruments. With respect to each Trust, and
subject only to the above-described standards and the terms of this Agreement,
the related Series Supplement and the respective Underlying Securities and
applicable Credit Support Instruments, if any, the Trustee (or the
Administrative Agent, if applicable) shall have full power and authority,
acting alone or through Sub-Administrative Agents as provided in Section 3.2,
to do or cause to be done any and all things in connection with such
administration which it deems necessary to comply with the terms of
this Agreement and the applicable Series Supplement.
(b) Without limiting the generality of the terms of paragraph
(a) of this Section 3.1, with respect to any Series of Certificates, the
Administrative Agent, if any, specified in the applicable Series Supplement
shall be hereby authorized and empowered by the Depositor, when such
Administrative Agent believes it appropriate in its reasonable judgment and when
otherwise required by a Series Supplement, in its own name or in the name of a
Sub-Administrative Agent, (i) to instruct the Trustee to make distributions or
payments from the Certificate Account or any other Account for such Series,
as set forth herein or in the related Series Supplement, and (ii) to the extent
specified in the related Series Supplement, to execute and deliver, on
behalf of the Certificateholders of such Series and the Trustee or any of
them, and upon notice to the Trustee, any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge, and all
other comparable instruments, with respect to any of the Underlying Securities
relating to such Series.
(c) The duties of the Trustee and the Administrative Agent, if any,
shall be performed in accordance with applicable local, State and Federal law,
and the Trustee (or, if specified in the applicable Series Supplement,
the Administrative Agent) shall make any and all filings, reports, notices or
applications with, and seek any comments and authorizations from, the Commission
and any State securities authority on behalf of the Trust for each Series. If
the applicable Series Supplement appoints an Administrative Agent, the Trustee,
in its capacity as Trustee, shall execute, at the direction of such
Administrative Agent, any powers of attorney and other documents necessary or
appropriate to enable the Administrative Agent to carry out any of its
administrative duties hereunder; provided, however, that the Trustee, in its
capacity as Trustee, shall not be accountable for the actions of the
Administrative Agent or any Sub-Administrative Agents under such powers of
attorney.
Section 3.2. Sub-Administration Agreements Between Administrative
Agent or Trustee and Sub-Administrative Agents.
20
(a) Unless otherwise provided in a Series Supplement, an
Administrative Agent specified in the applicable Series Supplement and the
Trustee may enter into Sub-Administration Agreements with one or more
Sub-Administrative Agents in order to delegate their administrative obligations
with respect to a related Series under this Agreement to such
Sub-Administrative Agents; provided, however, that (i) such delegation shall
not release either such Administrative Agent or the Trustee, as applicable,
from the duties, obligations, responsibilities or liabilities arising under
this Agreement, (ii) the Rating Agency Condition shall have been satisfied
with respect to the entering into of any such agreement and (iii) such
agreements are consistent with the terms of this Agreement and, with respect
to Certificates of any Series, the related Series Supplement. With respect
to any Series (or Class within such Series) of Certificates, each Sub-
Administration Agreement shall impose on the Sub-Administrative Agent
requirements conforming to the provisions set forth in Section 3.1 and provide
for administration of the related Trust and all or certain specified
Underlying Securities for such Series consistent with the terms of
this Agreement. Additional requirements relating to the scope and contents
of any Sub-Administration Agreement may be provided in the applicable Series
Supplement. Such Administrative Agent shall deliver to the Trustee and the
Depositor copies of all Sub-Administration Agreements which it enters into, and
any amendments or modifications thereof, promptly upon the Administrative
Agent's execution and delivery of any such instruments.
(b) As part of its duties hereunder, an Administrative Agent
specified in the applicable Series Supplement shall enforce the obligations
of each Sub-Administrative Agent under any related Sub-Administration Agreement
which it enters into and of the Underlying Security Provider, if any,
under any Underlying Security Purchase Agreement, for the benefit of the
Trustee and the Certificateholders of a given Series. Such enforcement,
including the legal prosecution of claims, the termination of Sub-
Administration Agreements or Underlying Security Purchase Agreements, as
appropriate, and the institution of Proceedings and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Administrative Agent, in its good faith business
judgment, deems necessary or advisable, subject in all cases to the provisions
of Article VI hereof.
Section 3.3. Successor Sub-Administrative Agents. An
Administrative Agent specified in the applicable Series Supplement and the
Trustee shall each be entitled to terminate any Sub-Administration Agreement
which it enters into and the rights and obligations of any Sub-
Administrative Agent under any Sub-Administration Agreement in accordance
with the terms and conditions of any such Sub-Administration Agreement. In the
event of a termination of any Sub-Administration Agreement, the
Administrative Agent or the Trustee, as applicable, shall simultaneously
reassume direct responsibility for all obligations delegated in such Sub-
Administration Agreement without any act or deed on the part of the applicable
Sub-Administrative Agent, the Trustee or the Administrative Agent, and the
Administrative Agent or the Trustee, as applicable, either shall administer
directly the related Underlying Securities or shall enter into a Sub-
Administration Agreement with a successor Sub-Administrative Agent which so
qualifies under Section 3.2.
Section 3.4. Liability of the Administrative Agent. Notwithstanding any
Sub-Administration Agreement or any of the provisions of this Agreement relating
to agreements or arrangements between an Administrative Agent, if any, or the
Trustee and a Sub-Administrative
21
Agent or references to actions taken through a Sub-Administrative Agent or
otherwise, the Administrative Agent, if any is specified in the applicable
Series Supplement, or the Trustee, as applicable, shall remain obligated
and primarily liable to the Trustee and the Certificateholders for the
administering of the Trust and the Underlying Securities for each related
Series of Certificates to the extent provided herein and in the related Series
Supplement in accordance with the provisions of Section 3.1 without
diminution of such obligation or liability by virtue of any such Sub-
Administration Agreements or arrangements or by virtue of
indemnification from the Sub-Administrative Agent and to the same extent and
under the same terms and conditions as if the Administrative Agent or the
Trustee, as applicable, alone were administering the Underlying Securities, and
the Administrative Agent or the Trustee, as applicable, shall not thereby be
released from any duties or responsibilities set forth in this Agreement or the
related Series Supplement. The Administrative Agent and the Trustee shall be
entitled to enter into any agreement with a Sub-Administrative Agent for
indemnification of the Administrative Agent or the Trustee by such
Sub-Administrative Agent for any liability or obligation sustained by the
Administrative Agent or the Trustee in connection with any act or failure to act
by the Sub-Administrative Agent, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
Section 3.5. No Contractual Relationship Between Certain Sub-
Administrative Agents and Trustee or Certificateholders. Any Sub-
Administration Agreement between an Administrative Agent specified in the
applicable Series Supplement and a Sub-Administrative Agent that may be
entered into and any transactions or services relating to the Underlying
Securities pursuant to such an agreement shall be deemed to be between the
Sub-Administrative Agent and the Administrative Agent alone, and the Trustee
and Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Administrative Agent except as set forth in Section 3.6. Except as set
forth in Section 3.6, the Administrative Agent shall be solely liable for all
fees owed by it to any Sub-Administrative Agent, irrespective of whether the
Administrative Agent's compensation pursuant to this Agreement is sufficient to
pay such fees; provided, however, that if so provided in the applicable Series
Supplement, a Sub-Administrative Agent shall be entitled to a Retained
Interest in certain Underlying Securities as and to the extent specified in
the Underlying Securities Schedule to such Series Supplement. Each such
Sub-Administrative Agent shall be reimbursed by the Administrative Agent for
expenditures made by such Sub-Administrative Agent to the same extent the
Administrative Agent would be reimbursed for such expenditures pursuant to
the terms of this Agreement.
Section 3.6. Assumption or Termination of Sub-Administration
Agreements by Trustee. Except as and to the extent otherwise provided in a
Series Supplement, in the event an Administrative Agent specified in the
applicable Series Supplement shall for any reason no longer be acting in such
capacity with respect to any Series, the Trustee or its designee shall
thereupon assume all the rights and obligations of the Administrative
Agent under each Sub-Administration Agreement that the Administrative Agent
may have entered into with respect to any Underlying Security or Assets
related to such Series, provided that the Trustee may elect to terminate any
such Sub-Administration Agreement in accordance with its terms. Except as
otherwise provided in such a Series Supplement, the Trustee, its designee or
any successor Administrative Agent shall be deemed to have assumed all the
Administrative Agent's interest therein and to have replaced the
Administrative Agent as a party to each Sub-Administration
22
Agreement to the same extent as if each Sub-Administration Agreement had been
assigned to the assuming party; provided, however, that the Administrative
Agent shall not thereby be relieved of any liability or
obligations under any Sub- Administration Agreement and provided further, that
the Trustee shall in no event be obligated to make any Advances if it is
prohibited by law or regulation from doing so or from obligating itself to do
so. The Administrative Agent at its expense shall, upon request of the Trustee,
deliver to such assuming party all documents and records relating to each
Sub-Administration Agreement and the Underlying Securities then being
administered by it and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Administration Agreements to the assuming party.
Section 3.7. Collection of Certain Underlying Security Payments.
With respect to any Series or Class of Certificates, the Trustee (or the
Administrative Agent if specified in the related Series Supplement) shall make
reasonable efforts to collect all payments required to be made pursuant to the
terms of the Underlying Securities or any related Credit Support Instruments in
a manner consistent with the terms of this Agreement, such Underlying
Securities and any related Credit Support Instruments.
Section 3.8. Collections by Sub-Administrative Agent. Unless
otherwise provided in the applicable Series Supplement, in the event a
Sub-Administrative Agent is administering one or more Underlying Securities
pursuant to a Sub-Administration Agreement, the Sub-Administrative Agent shall
be required to immediately direct the Trustee to deposit into an Eligible
Account established by such Sub-Administrative Agent (a "Sub-Administration
Account") any amounts collected with respect thereto, and not later than the
Business Day after receipt thereof, all such amounts shall be deposited into the
related Certificate Account.
Section 3.9. Certificate Account. (a) For each Series of
Certificates, the Trustee shall establish and maintain one or more
Eligible Accounts (collectively, the "Certificate Account"), held in trust for
the benefit of the Certificateholders of such Series. The Trustee on
behalf of such Certificateholders shall possess all right, title and interest
in all funds on deposit from time to time in each Certificate Account and
in all proceeds thereof. With respect to each Series of Certificates, the
Certificate Account shall be under the sole dominion and control of the
Trustee for the benefit of the related Certificateholders. With respect to each
Series of Certificates, the Trustee shall deposit or the Administrative Agent,
if any, specified in the applicable Series Supplement shall direct the Trustee
to deposit or cause to be deposited in the Certificate Account no later than
the Business Day after receipt thereof all amounts collected with respect to the
Underlying Securities, any Credit Support and all Liquidation Proceeds
related to such Series including:
(i) all payments on account of principal of such Underlying
Securities;
(ii) all payments on account of interest on such Underlying
Securities;
(iii) all payments on account of premium (if any) on such
Underlying Securities;
(iv) any payments in respect of any such Credit Support;
23
(v) any Advances made as required pursuant to Section 4.3; and
(vi) any interest or investment income earned on funds
deposited in the related Accounts.
Unless otherwise specified in the applicable Series
Supplement, it is understood and agreed that payments in the nature of
prepayment or redemption penalties, late payment charges or assumption fees
which may be received by the Trustee or any Administrative Agent shall be
deposited by the Trustee or the Administrative Agent, as applicable, in the
Certificate Account and shall not be retained by the Trustee or the
Administrative Agent for its own account.
If, at any time, the Certificate Account for any Series ceases
to be an Eligible Account, the Trustee shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which the Rating Agency
Condition is met) establish a new Certificate Account meeting the conditions
specified above and transfer any cash and any investments on deposit in the
Certificate Account to such new Certificate Account, and from the date such new
Certificate Account is established, it shall be the Certificate Account for such
Series.
(b) The Trustee shall give notice to the Administrative Agent,
if any, the Depositor and each Rating Agency of the location of each
Eligible Account constituting the Certificate Account and prior to any change
thereof.
(c) The Administrative Agent, if any, shall instruct the
Trustee as to, or otherwise the Trustee shall determine, the appropriate
application of Available Funds with respect to any Distribution Date for which
application is to be made on any such Distribution Date in accordance with the
terms of Section 4.1 and the related Series Supplement.
Section 3.10. Investment of Funds in the Accounts. The Depositor
(or, if so specified in the applicable Series Supplement, the Administrative
Agent), on behalf of the Trust, may direct the Trustee to direct any depository
institution maintaining the Certificate Account or the Reserve Account,
if any, for the applicable Series and any other segregated Eligible Account
the contents of which are held for the benefit of Certificateholders of such
Series (each, an "Account") to invest the funds therein in one or more
Permitted Investments bearing interest or sold at a discount, which shall be
held to maturity unless payable on demand and which funds shall not be
reinvested upon the maturity or demand for payment of such Permitted Investment.
If the Depositor (or the Administrative Agent, if applicable) does not provide
any investment directions to the Trustee, funds held in any Account will be
invested in the Permitted Investments specified in clause (ii) of the definition
thereof. Investments of such funds shall be invested in Permitted Investments
that will mature so that such funds will be available for distribution on the
Distribution Date on which such amounts are to be applied as distributions to
Certificateholders. In the event amounts on deposit in an Account are at
any time invested in a Permitted Investment payable on demand, the
Trustee shall:
24
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand same day payment of all amounts due thereunder upon
a determination by the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in any Account.
It is the intent of the Trustee, any Administrative Agent, and
the Depositor that each Account shall be a securities account of the Trustee and
not an account of the Depositor or the Administrative Agent. Each Permitted
Investment that constitutes investment property shall be held by the Trustee
through a securities intermediary, which securities intermediary shall agree
with the Trustee that (A) such investment property at all times shall be
credited to a securities account of the Trustee, (B) all property credited to
such securities account shall be treated as a financial asset, (C) such
securities intermediary shall treat the Trustee as entitled to exercise the
rights that comprise each financial asset credited to such securities account,
(D) such securities intermediary shall comply with entitlement orders originated
by the Trustee without the further consent of any other person or entity, (E)
such securities intermediary shall not agree with any person or entity other
than the Trustee to comply with entitlement orders originated by any person or
entity other than the Trustee, (F) such securities account and all property
credited thereto shall not be subject to any lien, security interest, right of
set-off, or encumbrance in favor of such securities intermediary or anyone
claiming through such securities intermediary (other than the Trustee), and (G)
such agreement between such securities intermediary and the Trustee shall be
governed by the laws of the State of New York. Each Permitted Investment that
does not constitute investment property shall be held by the Trustee in the
State of New York. Each term used in the preceding two sentences and defined in
the New York Uniform Commercial Code shall have the meaning set forth in the New
York Uniform Commercial Code.
Section 3.11. Maintenance of Credit Support. On the applicable
Closing Date, the Trustee or, if so specified in the applicable Series
Supplement, the Depositor or the Administrative Agent, shall, to the extent
specified in the applicable Series Supplement, establish and maintain, or enter
into, as applicable, in the name of the Trustee, either as a part of the
related Trust or outside it, for the benefit of the Certificateholders of the
related Series, the Credit Support specified in the applicable Series
Supplement. To the extent specified in the applicable Series Supplement,
the Depositor or the Administrative Agent, as the case may be, will make or
cause to be made any initial deposit to the Certificate Account or any
Reserve Account for the related Series as of the Closing Date. Unless the
Series Supplement for a given Series provides otherwise, if a Reserve
Account exists for such Series, collections with respect to the Underlying
Securities for such Series not distributed to the Certificateholders of
such Series shall be deposited in the Reserve Account. The Reserve Account, if
any, will not be a part of or otherwise includible in the Trust but will be held
for the benefit of the Credit Support Provider.
Amounts on deposit in the Reserve Account and amounts
available pursuant to any other Credit Support for such Series shall be applied
by the Trustee to make distributions of principal of and premium (if any) and
interest on the Certificates of such Series as required pursuant to Section 4.1
and the applicable Series Supplement to the extent that funds are not
25
otherwise available for such purpose. If specified in such Series Supplement,
immediately after each Distribution Date, amounts on deposit in the Reserve
Account for such Series in excess of a specified amount shall be paid to
the Person so specified in such Series Supplement.
Section 3.12. Realization Upon Defaulted Underlying Securities.
Unless otherwise provided in the applicable Series Supplement, (a) if:
(i) default is made in the payment of any installment of
interest on any Underlying Security when the same becomes due and
payable, and such default continues unremedied for the period specified
in the indenture or other authorizing document for such Underlying
Security (or, if no such period is specified, three days) after receipt
by the Underlying Securities Issuer of notice thereof from the Trustee
or receipt by the Underlying Securities Issuer and the Trustee of
notice thereof from the Holders of Outstanding Certificates
representing at least 25% of the Voting Rights; or
(ii) default is made in the payment of the principal of or any
installment of the principal of any Underlying Security when the same
becomes due and payable, and such default continues unremedied
for the period specified in the indenture or other authorizing
document for such Underlying Security (or, if no such period is
specified, thirty (30) days) after receipt by the Underlying Securities
Issuer of notice thereof from the Trustee or receipt by the Underlying
Securities Issuer and the Trustee of notice thereof from the Holders
of Outstanding Certificates representing at least 25% of the
Voting Rights;
and the Underlying Securities Issuer shall, upon demand of the Trustee, fail to
pay forthwith to the Trustee, for the benefit of the Holders, the whole amount
then due and payable on such Underlying Securities for principal and interest,
with interest upon the overdue principal, at the rate borne by the Underlying
Securities and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee and its agents
and counsel, to the extent permitted by law (such event, an "Issuer Payment
Default"), then the Trustee, in its own name and as trustee of an express trust,
subject to provision being made for indemnification against costs, expenses and
liabilities in a form satisfactory to the Trustee, shall institute a Proceeding
for the collection of the sums so due and unpaid, and shall prosecute such
Proceeding to judgment or final decree or settlement, and shall enforce the same
against the Underlying Securities Issuer or other obligor upon the Underlying
Securities and collect in the manner provided by law out of the property of the
Underlying Securities Issuer or other obligor upon the Underlying Securities
wherever situated, the moneys adjudged or decreed to be payable, unless
otherwise directed by Holders of the Required Percentage -- Direction of the
Trustee. In connection therewith, the Trustee shall use its best reasonable
efforts in accordance with such normal and customary procedures it shall deem
necessary or advisable, and shall have the power and authority, acting alone, to
do any and all things in connection therewith and the administration of the
Trust as it may deem necessary or advisable.
(b) In the event that the Trustee receives money or other property
in respect of the Underlying Securities (other than a scheduled interest or
principal payment or the payment of any redemption premium on or with respect
to the earlier redemption of the Underlying Securities) as a result of a payment
default on the Underlying Securities or actual notice that such
26
moneys or other property will be paid to the Trustee, the Trustee shall promptly
give notice (as provided in Section 10.5 hereof) to the Depositary or, if the
Certificates are not then held by the Depositary, directly to the Holders of the
Certificates then outstanding and unpaid. Such notice shall state that, not
later than thirty (30) days after the receipt of such moneys or other property,
the Trustee shall allocate and distribute such moneys or other property to the
Holders of the Outstanding Certificates then unpaid, in proportion to the
Stated Amount or Accreted Amount, as applicable, of each class of Outstanding
Certificates, together with accrued interest to the date of distribution,
if applicable, and within each class pro rata by Stated Amount. Property
received, other than cash, shall be liquidated by the Trustee in a commercially
reasonable manner and the proceeds thereof, after deduction of all reasonable
costs of such liquidation, distributed in cash, only to the extent necessary
to avoid distribution of fractional securities.
(c) The Trustee (or, if and under the circumstances specified in
the applicable Series Supplement, the Administrative Agent), on behalf
of the Certificateholders, shall assert claims under each applicable Credit
Support Instrument, and shall take such reasonable steps, in addition to those
described in Section 3.12(a), as are necessary to receive payment or to permit
recovery thereunder with respect to any defaulted Underlying Securities, subject
in all cases to the provisions of Article VI hereof in the case of the
Administrative Agent and Article VIII hereof in the case of the Trustee.
(d) Unless otherwise provided in a Series Supplement, if
the Administrative Agent or the Trustee, as applicable, is unable to obtain
full recovery in respect of a defaulted Underlying Security and any related
Credit Support Instrument pursuant to Section 3.12(c), the Administrative Agent
or the Trustee, as applicable, shall follow or cause to be followed such normal
practices and procedures as it deems necessary or advisable to realize upon
such defaulted Underlying Security and such Credit Support Instrument, subject
in all cases to the provisions of Article VI hereof in the case of the
Administrative Agent and Article VIII hereof in the case of the Trustee.
Section 3.13. Retained Interest. The Retained Interest, if
any, in any Underlying Security shall initially be held by the Person so
specified in the related Series Supplement as and to the extent specified in
Schedule A thereof. With respect to each Underlying Security, the Retained
Interest shall be deducted by the Trustee, at the written direction of the
Administrative Agent, if any, or the Depositor from applicable collections
in respect of such Underlying Security. Unless otherwise provided in the
applicable Series Supplement, collections in respect of Retained Interest shall
not be deposited in the Certificate Account for the applicable Series and shall
not constitute a part of the Trust for such Series, but shall instead be
distributed to the holder of such Retained Interest, provided that the Series
Supplement for any Series with respect to which there is a Retained Interest
may provide that, notwithstanding the terms contained herein, commingled
amounts received in respect of assets inclusive of Underlying Securities and
Retained Interest may initially be deposited in a separate and discrete
Eligible Account established by the Trustee at the direction of the
Administrative Agent, if any, or the Depositor and such Series Supplement may
provide for additional terms relating thereto. Unless otherwise provided in the
applicable Series Supplement, after deduction of all applicable fees as
provided for in this Agreement, on each Distribution Date the Trustee shall
allocate on a pari passu basis any partial recovery on an Underlying Security
between (a) the Retained Interest, if any, and (b) distributions to
Certificateholders of the applicable Series.
27
Section 3.14. Administrative Agent's Compensation and
Reimbursement. (a) As compensation for its activities, the Administrative Agent,
if any, specified in the applicable Series Supplement shall be entitled to the
Administrative Fee, which shall be paid on the dates, in the amounts, under the
circumstances and in the manner specified in the applicable Series Supplement.
(b) If, and only to the extent, provided in a Series
Supplement, the Administrative Agent, if any, shall be required to pay from
its compensation hereunder or otherwise all expenses incurred in connection
with the Trust for the related Series and its administration of the Underlying
Securities for the related Series, including payment of the fees and
disbursements of the Trustee (including the reasonable fees and expenses of
its counsel and independent accountants allocable to such Series), payment
of expenses incurred in connection with distributions and reports to
Certificateholders of such Series, payment of premiums on Credit Support
Instruments related to such Series and other expenses specified in such Series
Supplement; provided, however, that neither the Administrative Agent, if any,
nor the Trustee will be responsible for any Federal, State, local or foreign
income and franchise taxes, if any, and any interest or penalties with respect
thereto, assessed on the Trust for such Series.
Section 3.15. Statement as to Compliance. An Administrative Agent
appointed pursuant to the applicable Series Supplement, if any, will deliver
to the Trustee, the Depositor and each Rating Agency not later than 90 days
following the end of each fiscal year of the Administrative Agent an Officer's
Certificate executed by two of its Executive Officers stating, as to each
signatory thereof, that (i) a review of the activities of the Administrative
Agent during the preceding year and of performance under this Agreement has
been made under such officer's supervision and (ii) to the best of such
officer's knowledge, based on such review, the Administrative Agent has
fulfilled all its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and
status thereof. Copies of such statement received by the Trustee shall be
provided by the Trustee to any Certificateholder upon request at the
Certificateholder's expense.
Section 3.16. [Intentionally Omitted.]
Section 3.17. Access to Certain Documentation. The Trustee
and the Administrative Agent, if any, shall provide to any Federal, State
or local regulatory authority that may exercise authority over any
Certificateholder access to the documentation regarding the Underlying
Securities required by applicable laws and regulations. Such access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the offices of the Trustee and Administrative Agent, if any,
designated by each of them. In addition, access to the documentation regarding
the Underlying Securities related to a given Series (or Class within such
Series) will be provided to any Certificateholder of such Series (or Class) upon
reasonable request during normal business hours at the offices of the Trustee
and Administrative Agent designated by each of them at the expense
of the Certificateholder requesting such access.
Section 3.18. Duties of the Administrative Agent. Notwithstanding
any other provision of this Agreement, with respect to any Series, the
applicable Series Supplement may provide that any Administrative Agent appointed
pursuant to such Series Supplement shall have
28
no rights and no duties, obligations or liabilities except as provided in such
Series Supplement and herein.
Section 3.19. Depositor to Furnish Names and Addresses of Holders
to Trustee. The Depositor shall furnish or cause to be furnished to the
Trustee not more than five days before each Distribution Date, and at such
other times as the Trustee may request in writing, a list, in such form
as the Trustee may reasonably require, to the extent such information is
in the possession or control of the Depositor or any of its paying agents,
of the Holders of Certificates as of the close of business on the applicable
record date of the Underlying Securities; provided, however, that so long as the
Trustee maintains the Certificate Register, no such list shall be required to be
furnished.
Section 3.20. Preservation of Information, Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Certificates
contained in the most recent list furnished to the Trustee as provided
in Section 3.19 and the names and addresses of Holders of Certificates
received by the Trustee in its capacity as Certificate Registrar. The Trustee
may destroy any list furnished to it as provided in such Section 3.19 upon
receipt of a new list so furnished.
(b) Holders shall have the right to communicate pursuant to TIA
Section 312(b) with other Holders with respect to their rights under this
Agreement or under the Certificates.
(c) The Depositor, the Trustee and the Certificate registrar
shall have the protection of TIA Section 312(c).
Section 3.21. Reports by Trustee. If required by TIA Section
313(a), within 60 days after December 31 of each year, the Trustee shall mail to
(i) each Holder as required by TIA Section 313(c) and (ii) the Depositor, a
brief report dated as of such date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b). A copy of any report
delivered pursuant to this Section 3.21 shall, at the time of its mailing to
Holders and the Depositor, be filed by the Trustee with the Commission and each
stock exchange, if any, on which the Certificates are listed. The Depositor
shall notify the Trustee if and when the Certificates are listed on any stock
exchange.
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions. On each Distribution Date for a
given Series of Certificates, the Trustee shall apply funds in the Certificate
Account for such Series in the manner and priority set forth in the Series
Supplement for such Series. Notwithstanding any other provisions in this
Agreement, the right of the Holder of any Certificate to receive
any such distributions in the manner and priority set forth
in the Series Supplement for such Series and to
29
institute suit for the enforcement of any such payment on or after the date such
payment is payable, shall not be impaired without the consent of such Holder.
Section 4.2. Reports to Certificateholders. Unless otherwise
specified in the applicable Series Supplement, on the next Business
Day following each such Distribution Date the Trustee or the
Administrative Agent, if any, as specified in such Series Supplement, shall
forward or cause to be forwarded to the Depositor, each Certificateholder
of such Series and such other Persons as may be specified in such
Series Supplement, a statement setting forth:
(i) the amount of the distribution on such Distribution
Date to Certificateholders of each Class of such Series allocable to
principal of and premium, if any, and interest on the Certificates of
each such Class; and the amount of aggregate unpaid interest accrued
as of such Distribution Date;
(ii) in the case of each Class of Floating Rate Certificates of
such Series, the respective Floating Pass Through Rate applicable to
each such Class on such Distribution Date, as calculated in accordance
with the method specified in such Certificates and the related Series
Supplement;
(iii) the amount of compensation received by any Administrative
Agent and such other customary information as the Trustee or
Administrative Agent, as applicable, deems necessary or desirable, or
that any such Certificateholder reasonably requests, to enable such
Certificateholders to prepare their tax returns;
(iv) if the Series Supplement provides for Advances, the
aggregate amount of Advances, if any, included in such distribution,
and the aggregate amount of unreimbursed Advances, if any, at the
close of business on such Distribution Date;
(v) the aggregate stated principal amount and, if
applicable, notional amount of the Underlying Securities related to
such Series, the current rating assigned by each Rating Agency thereon
and the current interest rate or rates thereon at the close
of business on such Distribution Date;
(vi) the aggregate Stated Amount (or Notional Amount,
if applicable) of each Class of such Series at the close of business
on such Distribution Date; and
(vii) as to any Series (or any Class within such Series) for
which Credit Support has been obtained, the amount or notional amount
of coverage of each element of Credit Support (and rating, if any,
thereof) included therein as of the close of business on such
Distribution Date.
In the case of information furnished pursuant to subclauses (i) and (iii) above,
the amounts shall be expressed as a Dollar amount (or the equivalent thereof in
any other Specified Currency) per minimum denomination of Certificates or for
such other specified portion thereof. Within a reasonable period of time after
the end of each calendar year, the Trustee shall furnish to each person who at
any time during each such calendar year was a Certificateholder a statement
containing the information set forth in subclauses (i) and (iii) above,
aggregated for such calendar year or the applicable
portion thereof during which such person was a Certificateholder. Such
30
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as are from time to time in effect.
Section 4.3. Advances. (a) Unless otherwise specified in the
applicable Series Supplement, an Administrative Agent appointed pursuant to the
Series Supplement shall have no obligation to make Advances (as defined below)
with respect to the Underlying Securities or in favor of the Holders of any
Series (or Class within such Series) of Certificates. However, as and to the
extent provided in the Series Supplement for a given Series, and subject to the
terms of paragraphs (b) and (c) of this Section 4.3, on or prior to each
Distribution Date, such Administrative Agent shall advance or cause to be
advanced in immediately available funds to the Trustee for deposit in the
Certificate Account for such Series an advance (each, an "Advance") in
an amount equal, unless otherwise specified in the related Series Supplement,
to the aggregate of distributions of principal, premium (if any) and interest
due on the Underlying Securities for such Series (or Class) during the related
Collection Period, to the extent remaining unpaid at the time of such Advance.
In satisfaction of its obligation to make such Advances, the Administrative
Agent shall make such Advances from either (i) its own funds or (ii) funds with
respect to the Underlying Securities for such Series or Class on deposit in the
Certificate Account for such Series, if any, that do not constitute Available
Funds with respect to such Distribution Date; provided, however, that, to the
extent the Administrative Agent shall have made Advances from funds on deposit
in the applicable Certificate Account, the Administrative Agent shall
immediately deposit funds equal to the aggregate amount of such Advances
into such Certificate Account on any subsequent Distribution Date to the
extent that amounts on deposit in such Certificate Account on such
Distribution Date are less than the amount of distributions required to be
made on such Distribution Date pursuant to Section 4.1 and the related Series
Supplement. The Administrative Agent may recover Advances from late
collections received by the Trustee on the applicable Underlying
Securities, proceeds from any applicable Credit Support, if any, and Liquidation
Proceeds with respect to the Underlying Securities for such Series or Class, as
specified in the related Series Supplement, as to which any such unreimbursed
Advance was made.
(b) Notwithstanding any provision herein to the contrary, no
Advance shall be required to be made hereunder if the Administrative Agent
reasonably believes that it will be unable to recover such Advance from
related late collections, Credit Support proceeds, if any, or Liquidation
Proceeds with respect to the applicable Underlying Securities. It is further
understood and agreed that the Administrative Agent shall not be obligated to
make any Advances in respect of reductions in the amount of collections on the
Underlying Securities due to bankruptcy proceedings with respect to the
Underlying Securities or the obligors thereof.
(c) Notwithstanding any provision herein to the contrary, unless
otherwise provided in the Series Supplement for a given Series, any Advances
made in respect of any Underlying Securities related to such Series (or Class
within such Series) that are subsequently deemed by the Administrative Agent
to be nonrecoverable from related late collections, Credit Support proceeds,
if any, or Liquidation Proceeds may be reimbursed to the Administrative Agent
through the application of amounts on deposit in the Certificate Account for
such Series allocable to any of such Underlying Securities prior to the
distributions of interest, premium (if any) and principal with respect to the
Certificates of such Series or Class.
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Section 4.4. Compliance with Withholding Requirements. If any
withholding tax is imposed on the payment (or allocations of income) to any
Certificateholder, such tax shall reduce the amount otherwise distributable to
such Holder. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to any Holder sufficient funds for the payment
of any tax that is legally owed by the Trust (but such authorization shall
not prevent the Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings), or that the Trustee may otherwise determine it
is obligated to withhold under applicable law or regulation. The amount of any
withholding tax imposed with respect to any Holder shall be treated as cash
distributed to such Holder at the time it is withheld by the Trustee and
remitted to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution, the Trustee may
in its sole discretion withhold such amounts in accordance with this Section
4.4. If any Holder wishes to apply for a refund of any such withholding tax,
the Trustee shall reasonably cooperate with such Holder in making such claim
so long as such Holder agrees to reimburse the Trustee for any out-of-pocket
expenses incurred. The Trustee shall use reasonable efforts to give notice
to each Holder of any such withholding requirement at least 10 days prior to
the date of the payment from which amounts are required to be withheld.
Section 4.5. Optional Exchange. (a) The terms and conditions,
if any, upon which Certificates of any Series (or Class within such Series) may
be exchanged for a pro rata portion of the Underlying Securities of
the related Trust will be specified in the related Series Supplement; provided
that any right of exchange shall be exercisable only to the extent that the
Depositor provides upon the Trustee's request an Opinion of Counsel that (i)
such exchange would not be inconsistent with the Depositor's and the Trust's
continued satisfaction of the applicable requirements for exemption under Rule
3a-7 (or other applicable rule or exemption) under the Investment Company Act
of 1940, as amended, and all applicable rules, regulations and
interpretations thereunder and (ii) such exchange would not cause the Trust to
fail to qualify as a grantor trust for federal income tax purposes.
Such terms may relate to, but are not limited to, the following:
(1) a requirement that the exchanging Holder tender to the
Trustee Certificates of each Class within such Series;
(2) a minimum Stated Amount or Notional Amount, as applicable,
with respect to Certificates being tendered for exchange by a single
Holder;
(3) a requirement that the Stated Amount or Notional Amount,
as applicable, of each Certificate tendered for exchange be an integral
multiple of an amount specified in such Series Supplement;
(4) specified dates during which a Holder may effect such an
exchange (each, an "Optional Exchange Date");
(5) limitations on the right of an exchanging Holder to
receive any benefit upon exchange from any Credit Support or Underlying
Securities which are not debt securities; and
32
(6) adjustments to the value of the proceeds of any exchange
based upon required prepayment of future expense allocations and if
provided for in the applicable Series Supplement the establishment of
a reserve for any anticipated Extraordinary Trust Expenses.
(b) Unless otherwise provided in the applicable Series
Supplement, no Certificate may be exchanged pursuant to the preceding paragraph
unless the Trustee has received at least 30 days but not more than 45 days
prior to an Optional Exchange Date in accordance with delivery instructions
specified in the applicable Series Supplement (i) such Certificate with the
form entitled "Option to Elect Exchange" on the reverse thereof duly completed,
or (ii) a telegram, telex, facsimile transmission or letter from a member of
a national securities exchange or the National Association of Securities
Dealers, Inc., the Depositary (in accordance with its normal procedures) or a
commercial bank or trust company in the United States setting forth the name
of the Holder of such Certificate, the Stated Amount or Notional Amount of
such Certificate to be exchanged and the Certificate number or a description of
the tenor and the terms of such Certificate, a statement that the option to
elect exchange is being exercised thereby and an assurance that the
Certificate to be exchanged with the form entitled "Option to Elect
Exchange" on the reverse of the Certificate duly completed will be received
by such Trustee not later than five Business Days after the date of such
telegram, telex, facsimile transmission or letter, and such Certificate and
form duly completed must be received by such Trustee by such fifth Business
Day. Any tender of a Certificate by the Holder thereof for exchange shall be
irrevocable. Unless otherwise provided in the applicable Series Supplement,
the exchange option may be exercised pursuant to this Section by the Holder of
a Certificate for less than the Stated Amount or Notional Amount of such
Certificate as long as the Stated Amount or Notional Amount remaining
Outstanding after such exchange is an authorized denomination and all
other exchange requirements set forth in the related Series Supplement are
satisfied. Upon such partial exchange, such Certificate shall be cancelled
and a new Certificate or Certificates for the remaining Stated Amount or
Notional Amount thereof shall be issued (which, in the case of any Certificate,
shall be in the name of the Holder of such exchanged Certificate).
(c) Upon the completion of any such Optional Exchange, the
Trustee shall give prompt written notice thereof to each Rating Agency.
ARTICLE V
The Certificates
Section 5.1. The Certificates. The Certificates of any Series
(or Class within such Series) will be issued in fully registered form as
Certificates and shall be substantially in the form of the exhibits with
respect thereto attached to the applicable Series Supplement. The aggregate
Stated Amount or Notional Amount of Certificates which may be authenticated and
delivered under this Agreement is unlimited.
The Certificates may be issued in one or more Series, each of which
Series may be issued in one or more Classes, with such further particular
designations added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Board
33
of Directors may determine. Each Certificate shall bear upon its face the
designation so selected for the Series and Class to which it belongs. All
Certificates of the same Series and Class shall be identical in all respects
except for the denominations thereof. All Certificates of all Classes within
any one Series at any time Outstanding shall be identical except for differences
among the Certificates of the different Classes within such Series specified in
the applicable Series Supplement. Except as otherwise provided in a Series
Supplement, all Certificates of a particular Series (and all Classes within
such Series) issued under this Agreement shall be in all respects equally and
ratably entitled to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement.
Each Series (and all Classes within such Series) of
Certificates shall be created by a Series Supplement authorized by the Board of
Directors and establishing the terms and provisions of such Series. The several
Series may differ as between Series and any Class may vary as between the other
Classes within any given Series in respect of any of the following matters:
(1) designation of such Series and Class;
(2) the dates on which or periods during which the Certificates of
such Series and Class may be issued;
(3) the number of Classes, the maximum Stated Amount or Notional
Amount of Certificates of each Class that may be issued and any
priorities or subordination among Classes of a Series with respect to
distributions from the Trust;
(4) or each Class of Certificates, the Pass Through Rate and, in
the case of each Class of Floating Rate Certificates, the method for
calculating such Pass Through Rate;
(5) the terms of the Letter of Credit, if any, or of the Surety
Bond, if any, or of any other Credit Support for the benefit
of the Certificateholders of such Series or Class or group of Classes;
(6) the places, if any, in addition to or instead of the Corporate
Trust Office of the Trustee (in the case of Certificates), where
the principal of (and premium, if any) and interest on Certificates of
such Series and Class shall be distributable;
(7) the authorized denominations (if other than $100,000 and
integral multiples of $1,000 in excess thereof) with respect to such
Series or Class;
(8) the Collection Periods, the Distribution Dates and the
Scheduled Final Distribution Dates for such Series and Class;
(9) the types of Underlying Securities that will be included in
the Trust for such Series and the manner and priorities of
allocating distributions with respect to collections of principal (and
premium, if any) and interest payments allocable to such Underlying
Securities among Holders of Certificates of different Classes
(including whether the Certificates of any such Class are to be
entitled to receive principal distributions with
34
disproportionate, nominal or no interest distributions,or interest distributions
with disproportionate, nominal or no principal distributions, and, in each case,
the applicable terms thereof);
(10) the amount, if any, to be deposited on the Closing Date in
the Certificate Account for such Series;
(11) the manner in which the Reserve Account, if any, is to be
funded, the amount, if any, to be deposited therein on the Closing Date and
the Requisite Reserve Amount, if any, for such Series or Class;
(12) the terms of any Guaranteed Investment Contract sold as
part of the related Trust;
(13) the provisions, if any, for the optional exchange of the
Certificates of such Series by the Certificateholders of such Series and the
periods within which or the dates on which, and the terms and conditions on
which, such Certificates may be exchanged in whole or in part for a pro rata
portion of the Underlying Securities related to such Series;
(14) whether the Certificates of such Series or Class are to
be issued as Discount Certificates and the amount of discount with which
such Certificates may be issued;
(15) whether the Certificates of such Series or Class are to
be issued in whole or in part in the form of one or more Global Securities and,
in such case, the Depositary for such Global Security or Securities and the
terms and conditions, if any, upon which interests in such Global Security or
Securities may be exchanged in whole or in part for the individual Certificates
represented thereby;
(16) if other than Dollars, the Currency in which Certificates
of such Series or Class shall be denominated or in which distributions of the
principal of (and premium, if any) and nterest on such Certificates may be
made and any other terms concerning such payment;
(17) if the principal of (and premium, if any) or interest on
Certificates of such Series or Class are to be distributable, at the election of
the Depositor or a Holder thereof, in a Currency other than that in which such
Certificates are denominated or distributable without such election, the
periods within which and the terms and conditions upon which such election
may be made and the time and the manner of determining the exchange rate
between the Currency in which such Certificates are denominated or distributable
without such election and the Currency in which such Certificates are to be
distributed if such election is made;
(18) any additional Administrative Agent Termination
Events or representations, warranties or covenants provided for with respect
to Certificates of such Series;
(19) provisions with respect to the terms for which the
definitions set forth in Article I permit or require further specification
in the related Series Supplement, including:
35
(a) "Accounting Date";
(b) "Accreted Amount";
(c) "Administrative Agent";
(d) "Administrative Fee";
(e) "Available Funds";
(f) "Basic Documents";
(g) "Calculation Agent";
(h) "Call Premium Percentage";
(i) "Closing Date";
(j) "Collection Period";
(k) "Corporate Trust Office";
(l) "Credit Support";
(m) "Credit Support Instrument";
(n) "Credit Support Provider";
(o) "Cut-off Date";
(p) "Depositary";
(q) "Depository Agreement";
(r) "Discount Certificates";
(s) "Distribution Date";
(t) "Event of Default";
(u) "Extraordinary Trust Expense";
(v) "Final Scheduled Distribution Date";
(w) "Fixed Pass Through Rate";
(x) "Floating Pass Through Rate";
(y) "Floating Rate Certificate";
(z) "Global Securities";
(aa) "Guaranteed Investment Contract";
(bb) "Letter of Credit";
(cc) "Limited Guarantor";
(dd) "Limited Guaranty";
(ee) "Notional Amount";
(ff) "Optional Exchange Date";
(gg) "Pass Through Rate";
(hh) "Permitted Investments";
(ii) "Place of Distribution";
(jj) "Purchase Price";
(kk) "Qualified Substitute Underlying Security";
(ll) "Rating Agency";
(mm) "Rating Agency Condition";
(nn) "Record Date";
(oo) "Required Interest";
(pp) "Required Premium";
(qq) "Required Principal";
(rr) "Required Percentage";
(ss) "Required Rating";
(tt) "Requisite Reserve Amount";
36
(uu) "Retained Interest";
(vv) "Scheduled Final Distribution Date";
(ww) "Specified Currency";
(xx) "Surety Bond";
(yy) "Underlying Security Provider";
(zz) "Underlying Security Purchase Agreement";
(aaa) "Underlying Securities";
(bbb) "Underlying Securities Issuer";
(ccc) "Underlying Securities Schedule";
(ddd) "Trust";
(eee) "Trustee";
(fff) "Trust Termination Event";
(ggg) "Voting Rights";
(20) rights and remedies provided to any Credit Support
Provider with respect to all or a portion of the Trust for such Series or
Class;
(21) any restrictions on the sale and transfer of the
Certificates, including restrictions arising out of the Employee Retirement
Income Security Act of 1974, as amended, or the Code; and
(22) any other provisions expressing or referring to the
terms and conditions upon which the Certificates of such Series or Class are
to be issued under this Agreement that do not prevent such Certificates from
receiving the Required Rating.
In the absence of any specification pursuant to this Section
5.1 with respect to Certificates of any Series, the Certificates of such Series
shall be issuable only as Certificates in denominations of $25 and in integral
multiples thereof and shall be payable only in Dollars.
A different Trustee and an Administrative Agent may be
appointed by the Depositor for each Series of Certificates prior to the issuance
of such Series provided that the Rating Agency Condition is met. If the initial
Trustee is to be other than U.S. Bank National Association, or there is to be an
Administrative Agent, then such Series Supplement shall provide for the
appointment of such Trustee or such Administrative Agent or both, as applicable,
of such Series and shall add or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder and of the Underlying Securities; it being understood that
nothing contained herein or in such Series Supplement shall constitute the
Trustees for different Series as co-trustees for the same Series or the
administrative agents for different Series as co-administrative agents for the
same Series, and that each Trustee shall be a trustee of a trust or trusts
separate and apart from any trust or trusts hereunder of any other Trustee, and
that each Administrative Agent shall be an administrative agent of a Trust
separate and apart from any other Trust. Upon final appointment of any new
Trustee or Administrative Agent, the Trustee shall provide a notice of such
appointment to each Rating Agency not later than 15 days following such
appointment.
Section 5.2. Execution, Authentication and Delivery. (a) The
Certificates shall be executed by an authorized signatory of the Trustee. The
signature of any of these signatories
37
may be manual or facsimile. Certificates bearing the manual or facsimile
signature of individuals who were at any time the authorized signatories
of the Trustee shall be binding, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication
and delivery of such Certificates or did not hold such offices at the date of
such Certificates.
(b) Each Certificate shall be dated as of the later of the date
specified in the related Series Supplement and the date of its authentication.
(c) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication executed by the Trustee by the
manual signature of one of its authorized signatories, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Agreement.
Section 5.3. Temporary Certificates. Pending the preparation of
Definitive Certificates of any Series (or Class within such Series), upon
receipt of a Depositor Order, the Trustee shall execute, authenticate and
deliver temporary Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as may be authorized by such Depositor Order.
Any such temporary Certificate may be in global form, representing all
or a portion of the Outstanding Certificates of such Series or Class.
Every such temporary Certificate shall be executed, authenticated and delivered
by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the Definitive Certificate or Definitive
Certificates in lieu of which it is issued.
If temporary Certificates of any Series (or Class within such
Series) are issued, the Depositor will cause Definitive Certificates of such
Series or Class to be prepared without unreasonable delay and (a) after the
preparation of Definitive Certificates of such Series or Class, the temporary
Certificates of such Series or Class shall be exchangeable for Definitive
Certificates of such Series or Class upon surrender of the temporary
Certificates of such Series or Class at the office of the Trustee in a Place of
Distribution for such Series or Class, without charge to the Holder, except as
provided in Section 5.4 in connection with a transfer and (b) upon surrender for
cancellation of any one or more temporary Certificates of any Series or Class
within such Series the Trustee shall execute, authenticate and deliver in
exchange therefor Definitive Certificates with a like Stated Amount or Notional
Amount, as applicable, of the same Series (or Class within such Series) of
authorized denominations and of like tenor. Until so exchanged, temporary
Certificates of any Series (or Class within such Series) shall in all respects
be entitled to the same benefits under this Agreement as Definitive Certificates
of such Series or Class, except as otherwise specified in the applicable Series
Supplement with respect to the payment of interest on Global Securities in
temporary form.
Upon any exchange of a portion of a temporary Global Security
for a definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.3 or Section 5.4, the temporary
Global Security shall be endorsed by the Trustee to
38
reflect the reduction of the aggregate Stated Amount or Notional Amount,
as applicable, evidenced thereby, whereupon the aggregate Stated Amount or
Notional Amount, as applicable, of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
Section 5.4. Registration; Registration of Transfer and
Exchange. The Trustee shall cause to be kept a register for each Series of
Certificates (the registers maintained in such office and in any other office
or agency of the Trustee in a Place of Distribution being herein sometimes
collectively referred to as the "Certificate Register") in which a transfer
agent and registrar ( which may be the Trustee) (the "Certificate Registrar")
shall provide for the registration of Certificates and the registration of
transfers and exchanges of Certificates. The Trustee is hereby initially
appointed Certificate Registrar for the purpose of registering Certificates
and transfers and exchanges of Certificates as herein provided; provided,
however, that the Trustee may appoint one or more co-Certificate Registrars.
Upon any resignation of any Certificate Registrar, the Depositor shall
promptly appoint a successor or, in the absence of such appointment, assume
the duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the
Depositor as Certificate Registrar, the Depositor will give the Trustee prompt
written notice of the appointment of a Certificate Registrar and of the
location, and any change in the location, of the Certificate Register, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Certificate Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Certificates and the principal amounts and
numbers of such Certificates.
Upon surrender for registration of transfer of any Certificate
of any Series (or Class within such Series) at the office or agency of the
Trustee, if the requirements of Section 8-401(a) of the Uniform Commercial Code
are met to the Depositor's satisfaction, the Trustee shall execute, authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Certificates of any authorized denominations, of a like Series, Class
and aggregate Stated Amount or Notional Amount, as applicable.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for the individual Certificates
represented thereby, a Global Security representing all or a portion of the
Certificates of a Series (or Class within such Series) may not be transferred
except as a whole by the Depositary for such Series or Class to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such Series or Class or a nominee of such successor
Depositary.
At the option of the Holder, Certificates of any Series (or
Class within such Series) (other than a Global Security, except as set forth
below) may be exchanged for other Certificates of the same Series or Class of
any authorized denomination or denominations of like tenor and aggregate Stated
Amount or Notional Amount, as applicable, upon surrender of the Certificates to
be exchanged at the office or agency of the Trustee maintained for such purpose.
39
Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, authenticate and deliver the Certificates that the Holder
making the exchange is entitled to receive.
If at any time the Depositary for the Certificates of a Series
(or Class within such Series) notifies the Depositor that it is unwilling or
unable to continue as Depositary for the Certificates of such Series or Class or
if at any time the Depositary for the Certificates of such Series or Class shall
no longer be eligible under Section 5.9(b), the Depositor shall appoint a
successor Depositary with respect to the Certificates of such Series or Class.
If a successor Depositary for the Certificates of such Series or Class is not
appointed by the Depositor within 90 days after the Depositor receives such
notice or becomes aware of such ineligibility, the Depositor's election pursuant
to Section 5.1 shall no longer be effective with respect to the Certificates of
such Series or Class and the Trustee, upon receipt of a Depositor Order for the
authentication and delivery of individual Certificates of such Series or Class,
will execute, authenticate and deliver individual Certificates of such Series or
Class in an aggregate Stated Amount or Notional Amount, as applicable, equal to
the aggregate Stated Amount or Notional Amount, as applicable, of the Global
Security or Securities representing Certificates of such Series or Class in
exchange for such Global Security or Securities.
The Depositor may at any time and in its sole discretion
determine that individual Certificates of any Series (or Class within such
Series) issued in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Trustee,
upon receipt of a Depositor Order for the authentication and delivery of
individual Certificates of such Series or Class, shall execute, authenticate and
deliver, individual Certificates of such Series or Class in an aggregate Stated
Amount or Notional Amount, as applicable, equal to the aggregate Stated Amount
or Notional Amount, as applicable, of the Global Security or Securities
representing Certificates of such Series or Class in exchange for such Global
Security or Securities.
If specified by the Depositor pursuant to Section 5.1 with
respect to a Series (or Class within such Series) of Certificates, the
Depositary for such Series may surrender a Global Security for such Series or
Class in exchange in whole or in part for individual Certificates of such Series
or Class on such terms as are acceptable to the Depositor and such Depositary.
Thereupon, the Trustee, upon receipt of a Depositor Order, shall execute,
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
individual Certificate or Certificates of the same Series or Class,
of any authorized denomination as requested by such Person in an
aggregate Stated Amount or Notional Amount, as applicable, equal to and
in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the aggregate Stated Amount
or Notional Amount, as applicable, of the surrendered Global Security
and the aggregate Stated Amount or Notional Amount, as applicable, of
individual Certificates delivered to Holders thereof.
40
In any exchange provided for in any of the preceding three
paragraphs, the Trustee, upon receipt of a Depositor Order, will execute,
authenticate and deliver individual Certificates in registered form in
authorized denominations.
Upon the exchange of a Global Security for individual
Certificates, such Global Security shall be cancelled by the Trustee. Individual
Certificates issued in exchange for a Global Security pursuant to this Section
5.4 shall be registered in such names and in such authorized denominations as
the Depositary for such Global Security, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificates to the Persons in whose
names such Certificates are so registered.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall constitute complete and indefeasible evidence of
ownership in the Trust related to such Certificates and be entitled to the same
benefits under this Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Depositor, the Trustee or the
Certificate Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor, the Trustee and
the Certificate Registrar, duly executed, by the Holder thereof or his attorney
duly authorized in writing, with such signature guaranteed by a brokerage firm
or financial institution that is a member of a Securities Approved Medallion
Program such as Securities Transfer Agents Medallion Program (STAMP), Stock
Exchange Medallion Program (SEMP) or New York Stock Exchange Inc. Medallion
Signature Program (MSP).
No service charge shall be made to a Holder for any
registration of transfer or exchange of Certificates, but the Depositor may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than exchanges pursuant to Section 5.3 not
involving any transfer.
Section 5.5. Mutilated, Destroyed, Lost and Stolen
Certificates. If (i) any mutilated Certificate is surrendered to the Trustee
at its Corporate Trust Office (in the case of Certificates) or (ii) the
Depositor and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate, and there is delivered to the
Depositor and the Trustee such security or indemnity as they may require to
hold each of them and any Paying Agent harmless, and neither the Depositor nor
the Trustee receives notice that such Certificate has been acquired by a bona
fide purchaser, then the Trustee, upon receipt of a Depositor Order, shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate a new Certificate of the
same Series and Class of like tenor, form, terms and principal amount, bearing
a number not contemporaneously Outstanding.
Upon the issuance of any new Certificate under this Section,
the Depositor may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
41
Every new Certificate of any Series or Class issued pursuant
to this Section shall constitute complete and indefeasible evidence of ownership
in the Trust related to such Series, whether or not the destroyed, lost or
stolen Certificate shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Agreement equally and proportionately with
any and all other Certificates of that Series or Class duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.6. Distribution of Interest; Interest Rights
Preserved. (a) Interest on any Certificate that is payable and is punctually
paid or duly provided for on any Distribution Date shall be distributed to the
Person in whose name such Certificate (or one or more Predecessor Certificates)
is registered at the close of business on the related Record Date
notwithstanding the cancellation of such Certificate upon any transfer or
exchange subsequent to such related Record Date. The distribution of
interest on Certificates shall be made at the Corporate Trust Office (except
as otherwise specified pursuant to Section 5.1) or, at the option of the
Trustee, by check mailed to the address of the Person entitled thereto as such
address shall appear in the Certificate Register or, if provided pursuant to
Section 5.1 and in accordance with arrangements satisfactory to the Trustee,
at the option of the Holder by wire transfer to an account designated by the
Holder.
(b) Subject to the foregoing provisions of this Section 5.6, each
Certificate delivered under this Agreement upon transfer of or in exchange for
or in lieu of any other Certificate shall carry the rights to interest
accrued and undistributed, and to accrue, that were carried by such other
Certificate.
(c) All computations of interest due with respect to any
Certificate of any Series or Class within such Series shall be made as
specified in the Series Supplement applicable to that particular Series or Class
of Certificates.
(d) With respect to any computations or calculations to be
made under this Agreement, the applicable Series Supplement and the
Certificates, except as otherwise provided, (i) all percentages resulting
from any calculation of accrued interest will be rounded, if necessary,
to the nearest 1/100,000 of 1% (.0000001), with five one-millionths of a
percentage point rounded upward, and (ii) all currency amounts will be rounded
to the nearest one-hundredth of a unit (with .005 of a unit being rounded
upward).
(e) Notwithstanding any other provisions in this Agreement, the
right of the Holder of any Certificate to receive any of the payments described
above in this Section 5.6, and to institute suit for the enforcement of any such
payment on or after the date such payment is payable, shall not be impaired
without the consent of such Holder.
Section 5.7. Persons Deemed Owners. The Depositor, the
Trustee and the Administrative Agent, if any, and any agent of the Depositor,
the Trustee or the Administrative Agent, if any, may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions of principal of (and premium, if any)
42
and (subject to Section 5.6) interest, if any, on such Certificate and for all
other purposes whatsoever, whether or not such Certificate be overdue, and
neither the Depositor, the Trustee, the Administrative Agent, if any, nor any
agent of the Depositor, the Trustee nor the Administrative Agent, if any, shall
be affected by notice to the contrary. All distributions made to any Holder,
or upon his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys distributable upon
such Certificate.
None of the Depositor, the Trustee, the Administrative Agent,
if any, or any of their agents will have any responsibility or liability for any
aspect of the records relating to or distributions made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
In connection with any notice or other communication to be
provided to Holders pursuant to this Agreement by the Trustee with respect to
any consent or other action to be taken by Holders, the Trustee shall establish
a record date for such consent or other action and in the case of Global
Certificates, give the Depositary notice of such record date not less than 15
calendar days in advance of such record date to the extent possible. Such record
date shall be the later of thirty (30) days prior to the first solicitation of
such consent or other action or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 3.19 hereof.
Section 5.8. Cancellation. Unless otherwise specified pursuant
to Section 5.1 for Certificates of any Series, all Certificates surrendered
for payment, redemption, transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. No Certificates shall be authenticated in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except
as expressly permitted by this Agreement.
Section 5.9. Global Securities. (a) If the Series Supplement
pursuant to Section 5.1 provides that a Series (or Class within such Series) of
Certificates shall be represented by one or more Global Securities, then the
Trustee shall execute, authenticate and deliver one or more Global Securities
that (i) shall represent an aggregate initial Stated Amount or Notional Amount,
as applicable, equalto the aggregate initial Stated Amount or Notional Amount,
as applicable, of the Certificates of such Series or Class to be represented
by such one or more Global Securities, (ii) shall be registered, in the name of
the Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged
in whole or in part for the individual Certificates represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
No Holder of a Certificate of such Series or Class will
receive a Definitive Certificate representing such Holder's interest in such
Certificate or Certificates, except as provided in Section 5.11. Unless and
until definitive, fully registered Certificates (the "Definitive Certificates")
have been issued to Holders of such Series or Class pursuant to Section 5.11:
43
(i) the provisions of this Section 5.9 shall be in full force
and effect;
(ii) the Certificate Registrar and the Trustee shall be
entitled to deal with the Depositary for all purposes of this
Agreement (including the distribution of principal of and premium, if
any, and interest on the Certificates and the giving of instructions or
directions hereunder) as the sole Holder of the Certificates of
such Series or Class, and shall have no obligation to the owners of
beneficial interests in such Series or Class (collectively, the
"Certificate Owners");
(iii) to the extent that the provisions of this Section 5.9
conflict with any other provisions of this Agreement, the provisions of
this Section 5.9 shall control;
(iv) the rights of Certificate Owners of such Series or
Class shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such
Certificate Owners and the Depositary or its Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
of such Series or Class evidencing a specified percentage of the
aggregate Voting Rights of such Series or Class, the Depositary shall
be deemed to represent such percentage only to the extent that it has
received instructions to such effect from Certificate Owners of such
Series or Class or Participants in such Depositary's system owning
or representing, respectively, such required percentage of the
beneficial interest in the Certificates of such Series or Class and
has delivered such instructions to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as such Depositary, be a clearing agency registered
under the Exchange Act and any other applicable statute or regulation.
Section 5.10. Notices to Depositary. Whenever a notice or other
communication to the Holders of a Series or Class within such Series represented
by one or more Global Securities is required under this Agreement, unless and
until Definitive Certificates for such Series or Class shall have been issued to
such Certificate Owners pursuant to Section 5.11, the Trustee shall give all
such notices and communications specified herein to be given to Holders of the
Certificates of such Series to the Depositary, and shall have no obligation to
the Certificate Owners.
Section 5.11. Definitive Certificates. If in respect of a Series
(or Class within such Series) represented by one or more Global Securities
(i) the Depositor advises the Trustee in writing that the Depositary is no
longer willing or able to properly discharge its responsibilities with respect
to the Certificates of such Series or Class and the Depositor is unable to
locate a qualified successor, (ii) the Depositor at its option advises the
Trustee in writing that it elects to terminate the book-entry system for such
Series or Class through the Depositary or (iii) after the occurrence of an
Administrative Agent Termination Event, Certificate Owners representing
beneficial interests aggregating at least a majority (or such other
44
Required Percentage--Definitive Certificates that may be specified in a Series
Supplement) of the Voting Rights of the Certificates of such Series or Class
advise the Depositary in writing that the continuation of a book-entry
system for such Series or Class through the Depositary is no longer in the best
interests of the Certificate Owners of such Series or Class, then the Depositary
shall notify all Certificate Owners or Participants in the Depositary's system
with respect to such Series or Class and the Trustee of the occurrence of
any such event and of the availability of Definitive Certificates for such
Series or Class to Certificate Owners of such Series or Class requesting the
same. Upon surrender to the Trustee of the Global Securities of such Series or
Class by the Depositary, accompanied by registration instructions, the
Trustee shall execute and authenticate the Definitive Certificates of such
Series or Class in accordance with the instructions of the Depositary. None
of the Depositor, the Certificate Registrar or the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates of such Series or Class, the Trustee shall recognize the
holders of the Definitive Certificates of such Series or Class as Holders.
Section 5.12. Currency of Distributions in Respect of Certificates.
(a) Except as otherwise specified pursuant to Section 5.1 for
Certificates of any Series (or Class within such Series), distributions of the
principal of (and premium, if any) and interest on Certificates of such Series
or Class will be made in Dollars.
(b) For purposes of any provision of the Agreement where the
Holders of Outstanding Certificates may perform an act that requires that
a specified percentage of the aggregate Voting Rights of the Certificates
of all Series perform such act and for purposes of any decision or
determination by the Trustee of amounts due and not distributed for the
principal of (and premium, if any) and interest on the Certificates of all
Series in respect of which moneys are to be disbursed ratably, the principal of
(and premium, if any) or notional amount of, as applicable, and interest
on the Outstanding Certificates denominated in a Foreign Currency will be
the amount in Dollars based upon exchange rates, determined as specified
pursuant to Section 5.1 for Certificates of such Series, as of the date for
determining whether the Holders entitled to perform such act have performed
it or as of the date of such decision or determination by the Trustee, as the
case may be.
(c) With respect to Certificates of any Series (or Class within
such Series), any decision or determination to be made regarding exchange rates
shall be made by an Exchange Rate Agent appointed by the Depositor; provided
that such Exchange Rate Agent shall accept such appointment in writing and the
terms of such appointment shall be acceptable to the Trustee and shall, in the
opinion of the Depositor at the time of such appointment, require such Exchange
Rate Agent to make such determination by a method consistent with the method
provided in the applicable Series Supplement for the making of such
decision or determination. All decisions and determinations of such Exchange
Rate Agent regarding exchange rates shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Depositor, the Trustee and all Holders of the Certificates of
such Series or Class.
45
(d) If distributions in respect of a Certificate are required to
be made in a Specified Currency other than Dollars and such currency is
unavailable due to the imposition of exchange controls or other circumstance
beyond the control of the Trustee, the Administrative Agent, if any, and the
Depositor or is no longer used by the government of the country issuing such
Specified Currency or is no longer commonly used for the settlement of
transactions by public institutions of or within the international banking
community, then all distributions in respect of such Certificate shall be made
in Dollars until such Specified Currency is again so used in the manner
specified in the related Series Supplement.
Section 5.13. Conditions of Authentication and Delivery of
New Series. Certificates of a new Series may be issued at any time and from
time to time after the execution and delivery of this Agreement. The Trustee
shall execute, authenticate and deliver such Certificates upon a Depositor
Order and upon delivery by the Depositor to the Trustee of the following:
(1) Board Resolution. A Board Resolution (or action by a
Person authorized by Board Resolution) authorizing
the execution, authentication and delivery of the
Certificates and specifying the Series, the Classes
within such Series and their respective Final
Scheduled Distribution Dates, priorities as to
distributions of principal, premium (if any) and interest,
aggregate initial Stated Amounts and Notional Amounts,
if any, and Pass Through Rates of, if any, each Class
of such Series of Certificates to be authenticated
and delivered and the method of calculation thereof.
(2) Series Supplement. A Series Supplement consistent with
the applicable provisions of this Agreement, accompanied
by a Board Resolution (or action by a Person authorized
by Board Resolution) authorizing such Series Supplement
(and, in the case of the first Series to be authenticated
and delivered hereunder, authorizing this Agreement).
(3) Certificates of the Depositor.
(a) An Officer's Certificate of the Depositor, dated
as of the Closing Date, to the effect that the
Depositor is not in breach of this Agreement and
that the issuance of the Certificates applied
for will not result in any breach of any of the
terms, conditions, or provisions of, or constitute
a default under, the Depositor's Certificate of
Incorporation or bylaws, or any indenture,
mortgage, deed of transfer or other agreement or
instrument to which the Depositor is a party or by
which it or its property is bound or any order
of any court or administrative agency entered
in any Proceeding to which the Depositor is a
party or by which it or its property may be bound
or to which it or its property may be subject.
(b) An Officer's Certificate of the Depositor, dated
as of the Closing Date, to the effect that
attached thereto are true and correct copies of
letters signed by each Rating Agency (or other
evidence satisfactory
46
to the Trustee) and confirming that the related
Certificates have received the Required Rating.
(4) Requirements of Series Supplement. Such other funds,
accounts, documents, certificates, agreements, instruments
or opinions as may be required by the terms of the Series
Supplement creating such Series.
If all the Certificates of a Series are not to be originally
issued at the same time, then the documents required to be delivered pursuant to
this Section 5.13 must be delivered only once, prior to the execution,
authentication and delivery of the first Certificate of such Series; provided,
however, that any subsequent Depositor Order to the Trustee to execute and
authenticate Certificates of such Series upon original issuance shall constitute
a representation and warranty by the Depositor that, as of the date of such
request, the statements made in the Officer's Certificates delivered pursuant to
this Section 5.13 shall be true and correct as if made on such date.
Section 5.14. Appointment of Paying Agent. The Trustee may appoint
one or more paying agents (each, a "Paying Agent") with respect to the
Certificates of any Series. Any such Paying Agent shall be authorized to make
distributions to Certificateholders of such Series from the Certificate Account
for such Series pursuant to the provisions of the applicable Series Supplement
and shall report the amounts of such distributions to the Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from such Certificate
Account for the purpose of making the distributions referred to above. The
Trustee may revoke such power and remove the Paying Agent if the Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The
Paying Agent shall initially be the Trustee and any co-paying agent chosen by
the Depositor and acceptable to the Trustee, including, if and so long as any
Series or Class within such Series is listed on the Luxembourg Stock Exchange
and such exchange so requires, a co-paying agent in Luxembourg or another
European city. Any Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' notice to the Trustee. In the event that the Trustee shall no
longer be the Paying Agent, the Trustee shall appoint a successor or
additional Paying Agent. The Trustee shall cause each successor to act as
Paying Agent to execute and deliver to the Trustee an instrument in which such
successor or additional Paying Agent shall agree with the Trustee that (i) it
will hold all sums, if any, held by it for distribution to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be distributed to such Certificateholders and (ii)
it will give the Trustee notice of any default by any obligor on the applicable
Series of Certificates or on the Underlying Securities. The Paying Agent shall
return all unclaimed funds to the Trustee and upon removal shall also
return all funds in its possession to the Trustee. The provisions of
Sections 8.1, 8.2, 8.3, 8.5 and 8.9 shall apply to the Trustee also in its role
as Paying Agent, for so long as the Trustee shall act as Paying Agent. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise. Notwithstanding anything contained
herein to the contrary, the appointment of a Paying Agent pursuant to this
Section 5.14 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement other than with
respect to funds paid to such Paying Agent.
47
Section 5.15. Authenticating Agent. (a) The Trustee may appoint
one or more Authenticating Agents (each, an "Authenticating Agent") with respect
to the Certificates of any Series which shall be authorized to act on behalf
of the Trustee in authenticating such Certificates in connection with the
issuance, delivery and registration of transfer or exchange of such
Certificates. Whenever reference is made in this Agreement to the authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
must be acceptable to the Depositor and the Administrative Agent, if any.
Notwithstanding anything contained herein to the contrary, the appointment of
an Authenticating Agent pursuant to this Section 5.15 shall not release the
Trustee from the duties, obligations, responsibilities or liabilities arising
under this Agreement.
(b) Any institution succeeding to the corporate agency business
of any Authenticating Agent shall continue to be an Authenticating Agent without
the execution or filing of any power or any further act on the part of the
Trustee or such Authenticating Agent. An Authenticating Agent may at any time
resign by giving notice of resignation to the Trustee and to the Depositor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving notice of termination to such Authenticating Agent and to the Depositor.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time an Authenticating Agent shall cease to be acceptable to the
Trustee or the Depositor, the Trustee promptly may appoint a successor
Authenticating Agent. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless acceptable to the Administrative Agent, if any, and the Depositor. The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section. The provisions of Section 8.1,
8.2 and 8.3 shall be applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in substantially
the following form:
This is one of the Certificates described in the Trust Agreement
and the related Series Supplement.
----------------------------
----------------------------
as Authenticating Agent
for the Trustee,
By:
-------------------------
Authorized Signatory
48
Section 5.16. Events of Default. If any Event of Default shall
occur and be continuing with respect to any class of Certificates, then, and
in each and every case, the Trustee shall exercise any rights in respect of
the related Underlying Securities as provided in the applicable Series
Supplement.
Section 5.17. Control by Holders. The Holders of Outstanding
Certificates representing the Required Percentage -- Direction of Trustee shall,
subject to provision being made for indemnification against costs, expenses and
liabilities in a form satisfactory to the Trustee, have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Trustee as provided in the applicable Series Supplement with respect to
any payment default on the Underlying Securities; provided, however, that:
(i) such direction shall not be in conflict with any rule of
law or with this Agreement; and
(ii) subject to Section 8.1, the Trustee need not take any
action that it determines might cause it to incur any liability or
might materially adversely affect the rights of any Holders not
consenting to such action.
Section 5.18. Waiver of Past Defaults.
The Holders of Outstanding Certificates representing the
Required Percentage -- Direction of Trustee may waive any past default and its
consequences except (i) a payment default on the Underlying Securities or other
default in the payment of principal of or interest on any of the Certificates or
(ii) a default in respect of a covenant or provision hereof, which cannot be
modified or amended without the consent of the Holder of each Certificate. In
the case of any such waiver, the Depositor, the Trustee and the Holders shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereto.
ARTICLE VI
The Depositor and the Administrative Agent
Section 6.1. Preparation and Filing of Exchange Act Reports;
Obligations of the Depositor and the Administrative Agent. The Administrative
Agent, if any, shall be liable in accordance herewith only to the extent
of the obligations specifically imposed by this Agreement and the related Series
Supplement.
(a) The Depositor shall (or shall engage the Trustee to) on behalf
of the Trust, prepare, sign and file with the Commission, within the time
period set forth below, copies of the annual reports and of the information,
documents, certifications and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations rescribe), if any, which the Depositor on behalf of the Trust may
be required to file with the Commission pursuant to Regulation AB and Section 13
or 15(d) of the Exchange Act (collectively, "Exchange Act Reports") with respect
to the Trust. The names and requirements of such Exchange Act Reports and the
dates on which they are required to be filed with the Commission are as follows:
49
(i) Form 8-K, within the time requirement prescribed by
Regulation AB and the Exchange Act if the filing of Form 8-K is
necessary;
(ii) Form 10-D, within the time requirement prescribed by
Regulation AB and the Exchange Act;
(iii) Form 10-K, within the time requirement prescribed by
Regulation AB and the Exchange Act; and
(iv) such other reports as may be required pursuant to Section
13 or 15(d) of the Exchange Act.
Each annual report on Form 10-K will be signed by the Depositor and will include
a certification required by Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, in
the form prescribed by Item 601 of Regulation S-K under the Securities Act.
(b) The Depositor shall deliver to the Trustee, not less often than
annually, an Officer's Certificate signed by an Executive Officer who is the
principal executive officer, principal financial officer or principal accounting
officer of the Depositor, dated on or prior to the date of the annual report
on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year
that:
(i) a review of the activities of the Depositor during such
fiscal year and of performance under the related Trust Agreement has
been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based
on such review, the Depositor and the Trustee have each fulfilled
its obligations under the related Trust Agreement throughout such year,
or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such Executive
Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's knowledge, based
on such review, the reports filed pursuant to Section 6.1(a), taken
as a whole, do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by such
certificate; and
(iv) to the best of such Executive Officer's knowledge, based
on such review and reasonable reliance on information provided by the
Trustee, the distribution and servicing information required to be
provided to the Depositor by the Trustee for inclusion in the reports
filed pursuant to Section 6.1(a)(i) is included in such reports.
The text of the Officer's Certificate shall be revised accordingly in order to
comply with any rules or other applicable laws of the Commission.
A copy of such certificate may be obtained by any Holder by a request in writing
to the Depositor addressed to the Corporate Trust Office of the Trustee.
50
(c) Each of the Trustee and the Administrative Agent (if any)
shall provide, at the Depositor's direction and expense, (i) reports on
assessments of compliance with servicing criteria and (ii) attestation reports
on assessments of compliance with servicing criteria prepared by an independent
public accountant sufficient for the Depositor on behalf of the Trust, both in
order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the
Exchange Act and Items 1122 and 1123 of Regulation AB.
A copy of any such report may be obtained by any Holder by a request in writing
to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee, within 15 days
after the Depositor is required to file the same with the Commission, such
additional information, documents and reports with respect to compliance by the
Depositor with the conditions and covenants of this Agreement, if any, as may be
required to be filed with the Commission from time to time by such rules and
regulations; and
(e) The Depositor shall deliver to the Trustee and transmit by
mail to all Holders described in TIA Section 313(c), in the manner and to
the extent provided therein, such summaries of any information, documents
and reports required to be filed by the Depositor and received pursuant to
clauses (i) and (ii) of this Section 6.1(a), if any, as may be required by rules
and regulations prescribed from time to time by the Commission.
(f) If and only if the Series Supplement provides for the pledge
of the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee), on
the Closing Date, the Depositor shall furnish to the Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Agreement, any
agreements supplemental hereto and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and
security interest of this Agreement and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
make such lien and security interest effective.
(g) If and only if the Series Supplement provides for the pledge
of the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee),
at least annually after the Closing Date, the Depositor shall furnish to the
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Agreement, any agreements supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the lien and security interest created by this Agreement and reciting
the details of such action or stating that in the opinion of such counsel no
such action is necessary to maintain the lien and security interest created by
this Agreement. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Agreement, any agreements supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the
51
opinion of such counsel, be required to maintain the lien and security interest
of this Agreement until such date in the following calendar year.
(h) If and only if the Series Supplement provides for the pledge
of the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released
from the lien of this Agreement, the Depositor shall furnish to the
Trustee an Officer's Certificate of the Depositor certifying or stating
the opinion of each Person signing such certificate as to the fair
value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person
the proposed release will not impair the security under this Agreement
in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the
Trustee an Officer's Certificate of the Depositor certifying or stating
the opinion of any signatory thereof as to the matters described in
clause (i) above, the Depositor shall also furnish to the Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property or securities released
from the lien of this Agreement since the commencement of the then
current calendar year, as set forth in the certificates required by
clause (i) above and this clause (ii), equals 10% or more of the
principal amount of the Outstanding Certificates, but such certificate
need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related
Officer's Certificate of the Depositor is less than $25,000 or less
than one percent of the then principal amount of the Outstanding
Certificates.
(iii) prior to the deposit with the Trustee of any securities
that are to be made the basis for the authentication and delivery of
Certificates, the withdrawal of cash constituting a part of the trust
estate or the release of any property or securities subject to the lien
of this Agreement, the Depositor shall furnish to the Trustee an
Officer's Certificate of the Depositor certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such deposit) to the Depositor of the securities to
be so deposited.
(iv) whenever the Depositor is required to furnish to the
Trustee an Officer's Certificate of the Depositor described in clause
(iii) above, the Depositor shall also deliver to the Trustee an
Independent Certificate as to the same matters, if the fair value to
the Depositor of the securities to be so deposited and of all other
such securities made the basis of any such withdrawal or release since
the commencement of the then current fiscal year of the Depositor,
as set forth in the certificates delivered pursuant to clause (iii)
above and this clause (iv), is 10% or more of the principal amount of
the Outstanding Certificates, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair
value thereof to the Depositor as set forth in the related Officer's
Certificate of the Depositor is less than $25,000 or less than one
percent of the then principal amount of the Outstanding Certificates.
52
(v) subject to the payment of its fees and expenses hereunder,
the Trustee may, and when required by the provisions of this Agreement
shall, execute instruments to release property from the lien of this
Agreement, or convey the Trustee's interest in the same, in a manner
and under circumstances that are consistent with the provisions of this
Agreement. No party relying upon an instrument executed by the Trustee
in connection therewith shall be bound to ascertain the Trustee's
authority, inquire into the satisfaction of any conditions precedent or
see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding
Certificates and all sums due to the Trustee hereunder have been paid,
release any remaining portion of the trust estate that secured the
Certificates from the lien of this Agreement and release to the
Depositor or any other Person entitled thereto any funds then included
in the trust estate.
(i) Upon any application or request by the Depositor to the
Trustee to take any action under the provisions of this Agreement, which action
is subject to the satisfaction of a condition precedent (including any covenants
compliance with which constitutes a condition precedent), the Depositor shall
furnish to the Trustee: (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable requirements
of the TIA, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Agreement, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 6.2. Merger or Consolidation of the Depositor or the
Administrative Agent. (a) Subject to the following paragraph, the Depositor
will keep in full effect its existence, rights and franchises as a corporation
under the laws of the jurisdiction of its incorporation, and the Administrative
Agent, if any, will keep in full effect its existence, rights
53
and franchises under the laws of the jurisdiction of its incorporation or
association. The Depositor and the Administrative Agent, if any, each will
obtain and preserve its qualification to do business as a foreign corporation
or association in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Underlying Securities and to perform its respective
duties under this Agreement.
(b) The Depositor and an Administrative Agent, if any, may
consolidate or merge with or into any other Person, provided that:
(i) the Person (if other than the Depositor or Administrative
Agent, as applicable) formed by or surviving such consolidation or
merger shall expressly assume, by an agreement supplemental hereto
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the performance or observance of every agreement and covenant
of this Agreement on the part of the Depositor or Administrative Agent,
as applicable, to be performed or observed, all as provided herein and
in the applicable Series Supplement or Supplements;
(ii) immediately after giving effect to such transaction, no
Administrative Agent Termination Event or event which with the passage
of time or notice or both would become an Administrative Agent
Termination Event shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction; and
(iv) the Depositor or Administrative Agent, as applicable,
shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation or merger
and such supplemental agreement comply with this Article VI and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 6.3. Limitation on Liability of the Depositor and the
Administrative Agent. (a) Unless otherwise expressly specified in this Agreement
or a Series Supplement, neither the Administrative Agent, if any, nor the
Depositor shall be under any obligation to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties hereunder
or under a Series Supplement or in the exercise of any of its rights or powers
if reasonable grounds exist for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(b) Neither the Depositor, an Administrative Agent, if any, nor
any of the directors, officers, employees or agents of the Depositor or such
Administrative Agent shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Depositor, any such Administrative Agent or any such person against any
breach of warranties, representations or covenants made herein, or against
any specific liability imposed on such Administrative Agent
54
pursuant hereto, or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
Neither the Depositor nor an Administrative Agent, if any,
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and,
in its opinion, does not involve it in any expense or liability; provided,
however, that either of the Depositor or such Administrative Agent may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. The legal expenses and
costs of such action and any liability resulting (except any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder) shall be allocated as specified in the
applicable Series Supplement.
Section 6.4. Limitation on Resignation of the Administrative
Agent. An Administrative Agent appointed pursuant to the applicable Series
Supplement shall not resign from the obligations and duties hereby imposed on it
except (a) upon appointment by the Trustee of a successor Administrative Agent
and receipt by the Trustee of a letter from the Rating Agency that such a
resignation and appointment will satisfy the Rating Agency Condition or (b) upon
a determination that its duties hereunder are no longer permissible under
applicable law. Any such determination pursuant to clause (b) of the preceding
sentence permitting the resignation of the Administrative Agent shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee
and the Depositor. No resignation of an Administrative Agent shall become
effective until the Trustee or a successor Administrative Agent shall have
assumed such Administrative Agent's responsibilities, duties, liabilities
(other than those liabilities arising prior to the appointment of such
successor) and obligations under this Agreement.
Section 6.5. Rights of the Depositor in Respect of the
Administrative Agent. An Administrative Agent appointed pursuant to the
applicable Series Supplement shall afford the Depositor and the Trustee, upon
reasonable notice, during normal business hours, access to all records
maintained by such Administrative Agent in respect of its rights and obligations
hereunder and access to officers of the Administrative Agent responsible for
such obligations. Upon request, the Administrative Agent shall furnish to the
Depositor and the Trustee the Administrative Agent's most recent financial
statements and such other information relating to its capacity to perform its
obligations under this Agreement as the Administrative Agent possesses. To the
extent such information is not otherwise available to the public, the Depositor
and the Trustee shall not disseminate any information obtained pursuant to the
preceding two sentences without the Administrative Agent's written consent,
except as required pursuant to this Agreement to the extent that it is
appropriate to do so (i) in working with legal counsel, auditors, taxing
authorities or other governmental agencies or (ii) pursuant to any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Depositor, the Trustee or
an applicable Trust. The Depositor may, but is not obligated to, enforce the
obligations of the Administrative Agent under this Agreement and may, but is
not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Administrative Agent under this Agreement or
exercise the rights of the Administrative Agent
55
under this Agreement; provided, however, that the Administrative Agent shall
not be relieved of any of its obligations under this Agreement by virtue of
such performance by the Depositor or its designee. The Depositor shall not have
any responsibility or liability for any action or failure to act by the
Administrative Agent and is not obligated to supervise the performance of the
Administrative Agent under this Agreement or otherwise.
Section 6.6. Depositor May Purchase Certificates. The Depositor may
at any time purchase Certificates in the open market or otherwise. Certificates
so purchased by the Depositor may, at the discretion of the Depositor, be held
or resold.
Section 6.7. The Administrative Agent and Other Parties. The
Person serving as an Administrative Agent, if any, appointed pursuant to the
applicable Series Supplement may be the Depositor, the Trustee or an Affiliate
of either thereof, and may have normal business relationships with the
Depositor, the Trustee or any Affiliates thereof.
Section 6.8. Preferential Collection of Claims Against Depositor.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent required by TIA
Section 311(a).
ARTICLE VII
Administrative Agent Termination Events
Section 7.1. Administrative Agent Termination Events. (a)
"Administrative Agent Termination Event," wherever used herein with respect to
any Series of Certificates, means any one of the following events:
(i) a failure by any Administrative Agent specified in the
applicable Series Supplement to remit to the Trustee, pursuant to
the terms of this Agreement, any funds in respect of collections on
Underlying Securities, Credit Support, if any, and Advances, if any,
collected by the Administrative Agent pursuant to the terms of this
Agreement that continues unremedied for a period of five days after
the date upon which written notice of such failure, requiring the same
to be remedied, shall have been given to the Administrative Agent by
the Depositor or the Trustee (in which case notice shall be provided
by telecopy), or to the Administrative Agent, the Depositor and the
Trustee by the Holders of Certificates of such Series representing at
least 25% of the aggregate Voting Rights; or
(ii) a failure on the part of any Administrative Agent
specified in the applicable Series Supplement to observe or perform
in any material respect any other of the covenants or agreements on
the part of the Administrative Agent contained in the Certificates of
such Series or in this Agreement which continues unremedied for a
period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Administrative Agent by the Depositor or the Trustee, or to the
Administrative Agent, the Depositor and the Trustee by the Holders
of Certificates of such Series representing at least 25% of the
aggregate Voting Rights; or
56
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any present
or future Federal or State bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceeding, or for the winding up or liquidation of its
affairs, shall have been entered against the Administrative Agent, if
any, specified in the applicable Series Supplement and such decree
or order shall have remained in force undischarged or unstayed for a
period of 30 days; or
(iv) any Administrative Agent specified in the applicable
Series Supplement shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Administrative Agent or of or relating to all or
substantially all its property; or
(v) any Administrative Agent specified in the applicable
Series Supplement shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make a general
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vi) if so specified in the related Series Supplement, any
failure of the Administrative Agent, if any, specified in the
applicable Series Supplement to make any Advances required to be made
from its own funds pursuant to Section 4.3 which continues unremedied
until twelve o'clock noon New York City time on the Business Day
immediately following the day on which such Advance was required to
have been made; or
(vii) any additional Administrative Agent Termination Event
that may be specified with respect to such Series in the related Series
Supplement.
Each Series Supplement shall specify as to each of the foregoing clauses
requiring a vote of Holders of different Classes the circumstances and manner in
which the aggregate Voting Rights applicable to each such clause shall be
calculated.
(b) Unless otherwise provided in the applicable Series Supplement
and provided an Administrative Agent shall have been appointed pursuant to the
applicable Series Supplement, so long as an Administrative Agent Termination
Event with respect to the related Series of Certificates shall have occurred
and be continuing, the Depositor or the Trustee may, and at the written
direction of the Holders of Certificates evidencing not less than the
"Required Percentage--Administrative Agent Termination" of the aggregate Voting
Rights, the Trustee shall, by notice in writing to such Administrative Agent
(and to the Depositor if given by the Trustee or to the Trustee if given by the
Depositor), terminate all the rights and obligations of the Administrative Agent
specified in the applicable Series Supplement in its capacity as Administrative
Agent with respect to such Series under this Agreement, to the extent permitted
by law, and in and to the Underlying Securities relating to such Series
(other than any Retained Interest of the Administrative Agent, if any)
and the proceeds thereof. On or after the receipt by
57
such Administrative Agent of such written notice, all authority and power of the
Administrative Agent under this Agreement relating to such Series, whether with
respect to the Certificates (other than as a Holder of any Certificate) of such
Series or the Underlying Securities relating to such Series or otherwise, shall
pass to and be vested in the Trustee pursuant to and under this Section 7.1(b),
and without limitation, the Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Administrative Agent, any and all documents and other instruments
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of such Underlying Securities and
related documents, or otherwise. The Administrative Agent, if any, specified in
the applicable Series Supplement agrees promptly (and in any event not later
than ten Business Days subsequent to such notice) to provide the Trustee with
all documents and records requested by it to enable it to assume the functions
of the Administrative Agent under this Agreement relating to such Series, and
to cooperate with the Trustee in effecting the termination of the Administrative
Agent's responsibilities and rights under this Agreement relating to such
Series, including the transfer within one Business Day to the Trustee for
administration by it of all cash amounts and investments which shall at the
time be or should have been credited by the Administrative Agent to the
Certificate Account relating to such Series or thereafter be received with
respect to such Underlying Securities; provided, however, that the
Administrative Agent shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances or otherwise, and shall continue
to be entitled to the benefits of Section 6.3 notwithstanding any such
termination.
Section 7.2. Trustee to Act; Appointment of Successor. On and after
the time an Administrative Agent, if any, specified in the applicable Series
Supplement receives a notice of termination pursuant to Section 7.1, the Trustee
shall be the successor in all respects to the Administrative Agent in its
capacity as Administrative Agent under this Agreement or the applicable Series
Supplement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Administrative Agent (except for any
representations or warranties of the Administrative Agent under this Agreement
and except as otherwise provided herein or in the applicable Series Supplement)
by the terms and provisions hereof, including the Administrative Agent's
obligation, if any, to make Advances pursuant to Section 4.3; provided, however,
that if the Trustee is prohibited by law or regulation from obligating itself to
make Advances, then the Trustee shall not be obligated to make such Advances
pursuant to Section 4.3; and provided further, that any failure to perform
such duties or responsibilities caused by the Administrative Agent's failure
to provide information required by Section 7.1 shall not be considered a default
by the Trustee as successor to the Administrative Agent hereunder. As
compensation therefor, the Trustee shall be entitled to the amounts relating to
the Underlying Securities of a given Series to which such Administrative Agent
would have been entitled if the Administrative Agent had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act or if the Holders of Certificates
of such Series evidencing not less than the Required Percentage--Administrative
Agent Termination of the aggregate Voting Rights, so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, an Administrative Agent acceptable to the Rating Agency (such
acceptance to be evidenced by satisfaction of the Rating
Agency Condition with respect to such appointment) and having a
net worth of not less than $15,000,000, as the
58
successor to such Administrative Agent under this Agreement with respect to such
Series in the assumption of all or any part of the responsibilities, duties
or liabilities of such Administrative Agent under this Agreement with respect to
such Series. The Trustee, the Depositor and any such successor Administrative
Agent may agree upon the compensation to be paid with respect thereto; provided,
however, that in no event shall such compensation be greater than the
compensation payable to the Administrative Agent under this Agreement. No
appointment of a successor Administrative Agent under this Agreement shall
be effective until the assumption by the successor Administrative Agent of all
the responsibilities, duties and liabilities placed on the Administrative Agent
hereunder and under the related Series Supplement. Pending appointment of a
successor Administrative Agent under this Agreement, the Trustee shall act in
such capacity as and to the extent hereinabove provided.
Section 7.3. Notification to Certificateholders. (a) Upon any such
termination pursuant to Section 7.2 or appointment of a successor Administrative
Agent, the Trustee shall give prompt written notice thereof to
Certificateholders of the affected Series in the manner provided in Section
10.5.
(b) Within 60 days after the occurrence of any Administrative
Agent Termination Event or event which but for lack of notice or passage of time
or both would constitute an Administrative Agent Termination Event with respect
to any Series, the Trustee shall transmit by mail to all Certificateholders of
such Series notice of each such Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event which is known to the Trustee,
unless such Administrative Agent Termination Event or event which but for lack
of notice or passage of time or both would constitute an Administrative Agent
Termination Event shall have been cured or waived.
Section 7.4. Waiver of Administrative Agent Termination Events.
Unless otherwise provided in the applicable Series Supplement, the Holders of
Certificates of the related Series evidencing not less than the Required
Percentage--Waiver of the aggregate Voting Rights may, on behalf of all
Certificateholders of such Series, (i) if so provided in the applicable Series
Supplement, waive compliance by the Depositor, the Trustee or the Administrative
Agent, if any, with certain restrictive provisions of this Agreement as set
forth in such Series Supplement prior to the time such compliance is required
and (ii) waive any Administrative Agent Termination Event or event which but for
lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series; provided, however, that an
Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event with respect to such Series regarding the failure to distribute, in
accordance with the terms of this Agreement, amounts received with respect to
any Underlying Security or any such event with respect to such Series in respect
of a covenant or provision of this Agreement the modification or amendment of
which would require the consent of the Holders of all outstanding Certificates
of such Series, may be waived only by all the Certificateholders of such Series.
Upon any such waiver of an Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event with respect to such Series, such
Administrative Agent Termination Event or event which but for lack of notice
or passage of time or both would constitute an
Administrative Agent Termination Event shall cease to exist
59
and shall be deemed to have been remedied for every purpose hereunder. No
such waiver shall extend to any subsequent or other Administrative Agent
Termination Event or event which but for lack of notice or passage of time or
both would constitute an Administrative Agent Termination Event or impair
any right consequent thereon except to the extent expressly so waived.
ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults. (a) The
Trustee, prior to the occurrence of an Administrative Agent Termination Event
or Event of Default with respect to any Series and after the curing of all such
Administrative Agent Termination Events or Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and the related Series Supplement.
During the period an Administrative Agent Termination Event or Event of Default
with respect to any Series shall have occurred and be continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of such person's
own affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to
any provision of this Agreement, shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement, the Trustee shall
take action as it deems appropriate to have the instrument corrected, and if
the instrument is not corrected to the Trustee's satisfaction, the Trustee
will provide notice thereof to the Depositor, Administrative Agent, if any,
and Certificateholders.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of an Administrative Agent
Termination Event or Event of Default with respect to any Series, and
after the curing of all such Administrative Agent Termination Events
or Events of Default which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee and, in the
absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee that conform to the requirements
of this Agreement;
60
(ii) the Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of the
Required Percentage--Direction of Trustee of the aggregate Voting
Rights of a given Series (or Class or group of Classes within such
Series) relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement;
(iv) the Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights
or powers if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any
obligations of an Administrative Agent, if any, appointed pursuant to
the applicable Series Supplement, under this Agreement except during
such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, such an
Administrative Agent in accordance with and only to the extent provided
in this Agreement;
(v) except for actions expressly authorized by this Agreement,
the Trustee shall take no actions reasonably likely to impair the
interests of a Trust in any Underlying Security now existing or
hereafter acquired or to impair the value of any Underlying Security
now existing or hereafter acquired;
(vi) except as expressly provided in this Agreement, the
Trustee shall not engage in any activity other than those required or
authorized by the terms of this Agreement. In particular, after the
Closing Date the Trustee shall not purchase or otherwise acquire any
additional securities, modify or permit the modification of any Trust
Asset or otherwise vary the investment of the Certificateholders or
incur or modify any obligations with respect to any Series, (i) except
as expressly required or permitted by the terms of this Agreement or
(ii) unless the Trustee obtains, at the expense of the
Certificateholders, an Opinion of Counsel to the effect that such
acquisition, incurrence or modification will not cause the applicable
Trust (unless otherwise indicated in a related Series Supplement) to
fail to be classified as a grantor trust for federal income tax
purposes; and
(vii) in the event that the Paying Agent or the Certificate
Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent
or Certificate Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated promptly upon its knowledge thereof to
perform such obligation, duty or agreement in the manner so required.
61
(d) The Trustee shall have the legal power to exercise all of the
rights, powers and privileges of holders of the Underlying Securities in which
the Certificates evidence an interest. However, neither the Trustee (except
as specifically provided herein or in the TIA) nor the Depositor shall be under
any obligation whatsoever to appear in, prosecute or defend any action,
suit or other proceeding in respect of Underlying Securities or Certificates.
(e) Neither the Trustee nor the Depositor shall have any
obligation on or with respect to the Underlying Securities, except as provided
in this Article VIII with respect to the Trustee; and their respective
obligations with respect to Certificates shall be solely as set forth in this
Agreement and the applicable Series Supplement.
(f) If there is an event of default (as defined in the indenture
or other document pursuant to which the Underlying Securities were issued)
with respect to any Underlying Security and such default is known to the
Trustee, the Trustee shall promptly give notice to the Depositary or, if the
Certificates are Definitive Certificates, directly to Holders thereof as
provided in Section 10.5 hereof (and in the manner and to the extent provided in
TIA Section 313(c)) and the Rating Agencies within 30 days after such event of
default occurs. Such notice shall set forth (i) the identity of the Underlying
Securities, (ii) the date and nature of such default, (iii) the face amount of
the obligation to which such default relates, (iv) the identifying numbers of
the Series and Class of Certificates, or any combination, as the case may
be, evidencing the obligations (or portions thereof) described above in clause
(iii), and (v) any other information which the Trustee may deem appropriate.
(g) Holders of Certificates shall have no recourse against the
Depositor or the Trustee for payment defaults on the Underlying Securities.
Section 8.2. Certain Matters Affecting the Trustee. (a) Except
as otherwise provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and any written
advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such written advice
or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; provided, however, that
nothing contained herein shall relieve the Trustee of the
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obligations, upon the occurrence of an Administrative Agent
Termination Event or Event of Default (which has not been cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Administrative Agent
Termination Event hereunder and after the curing of all Administrative
Agent Termination Events which may have occurred, the Trustee shall not
be bound to make any investigation into the facts of matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, approval, bond or other
paper or document believed by it to be genuine, unless requested in
writing to do so by Holders of the Required Percentage--Direction of
Trustee of the aggregate Voting Rights of the affected Series (or
Class or Classes within any such Series), as specified by the
applicable Series Supplement; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and shall not be liable for
such persons' actions if it has selected such persons with reasonable
care; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account
or Reserve Account at the direction of an Administrative Agent or the
Depositor pursuant to Section 3.10.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the Trustee
shall be brought in its name for the benefit of all the Holders of such
Certificates, subject to the provisions of this Agreement.
Section 8.3. Trustee Not Liable for Recitals in Certificates or
Underlying Securities. The Trustee assumes no responsibility for the correctness
of the recitals contained herein and in the Certificates or in any document
issued in connection with the sale of the Certificates (other than the signature
and authentication on the Certificates). Except as set forth in Section 8.12,
the Trustee makes no representations or warranties as to the validity or
sufficiency of this Agreement or of the Certificates of any
Series (other than the signature and
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authentication on the Certificates) or of any Underlying Security or related
document. The Trustee shall not be accountable for the use or application by the
Depositor or the Administrative Agent, if any, of any of the Certificates or of
the proceeds of such Certificates.
Section 8.4. Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 8.5. Trustee's Fees and Expenses; Indemnification;
Undertaking for Costs. (a) The Trustee shall be entitled to receive from the
Depositor or an affiliate of the Depositor as compensation for the Trustee's
services hereunder, trustee's fees pursuant to a separate agreement between
the Trustee and the Depositor, and shall be reimbursed for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
(including the reasonable compensation, disbursements and expenses of its
counsel and other persons not regularly in its employ). The Depositor shall
indemnify and hold harmless the Trustee and its successors, assigns, agents
and servants against any and all loss, liability or reasonable expense
(including attorney's fees) incurred by it in connection with the administration
of this trust and the performance of its duties thereunder. The Trustee shall
notify the Depositor promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Depositor shall not relieve the
Depositor of its obligations hereunder. The Depositor need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith.
The indemnities contained in this Section 8.5(a) shall survive the resignation
or termination of the Trustee or the termination of this Agreement.
(b) Failure by the Depositor to pay, reimburse or indemnify the
Trustee shall not entitle the Trustee to any payment, reimbursement or
indemnification from any Trust, nor shall such failure release the Trustee
from the duties it is required to perform under this Agreement. Any unpaid,
unreimbursed or unindemnified amounts shall not be borne by any Trust and shall
not constitute a claim against such Trust, but shall be borne by the Trustee in
its individual capacity.
(c) All parties to this Agreement agree, and each Holder of any
Certificate by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any Proceeding for the
enforcement of any right or remedy under this Agreement, or in any Proceeding
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such Proceeding of an undertaking to pay
the costs of such Proceeding and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such Proceeding, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section 8.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group of
Holders, in each case holding in the aggregate Outstanding
Certificates representing more than 10% of the Voting Rights; or
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(iii) any Proceeding instituted by any Holder for the
enforcement of the payment of principal, premium or interest on or
after the respective due dates expressed in such Certificate and in
this Agreement (or, in the case of redemption, on or after the
redemption date).
Section 8.6. Eligibility Requirements for Trustee. (a) The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
hereunder shall at all times be a corporation which is not an Affiliate of the
Depositor (but may have normal banking relationships with the Depositor or any
obligor with respect to the Underlying Securities with respect to such Series
of Certificates and their respective Affiliates) organized and doing business
under the laws of any State or the United States, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation or association publishes reports of
conditions at least annually, pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then for the purposes of
this Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of conditions so published. Such corporation or association must
have long term unsecured debt obligations rated in one of the four highest
rating categories by the Rating Agency.
(b) The Trustee shall comply with Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any Series Supplement under which other securities are outstanding
evidencing ownership interest in obligations of the Underlying Securities Issuer
if the requirements for such exclusion set forth in TIA Section 310(b)(1)
are met.
Section 8.7. Resignation or Removal of the Trustee. (a) The Trustee
may, with respect to any Series of Certificates, at any time resign and be
discharged from any trust hereby created by giving written notice thereof to the
Depositor, the Administrative Agent, if any, each Rating Agency and to all
Certificateholders of such Series. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor trustee for such Series by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument
shall be delivered to such Certificateholders and the Administrative Agent, if
any, by the Depositor. If no such successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee for such
Series.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.6 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Depositor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to
the Trustee so removed and to the successor trustee. A copy of such instrument
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shall be delivered to the Certificateholders and the Administrative Agent, if
any, by the Depositor.
(c) The Holders of Certificates of any Series representing the
Required Percentage--Removal of Trustee of the aggregate Voting Rights may at
any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact and duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor trustee so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Administrative
Agent, if any, by the Depositor.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.8.
Section 8.8. Successor Trustee. (a) Any successor trustee appointed
as provided in Section 8.7 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder (either
with respect to a given Series of Certificates or with respect to all
Certificates issued under this Agreement), with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all documents and statements held by it hereunder, and the Depositor and
the predecessor trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers, duties
and obligations. No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.6.
(b) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Depositor shall transmit notice of the
succession of such trustee hereunder to all Holders of Certificates and to the
Rating Agency in the manner provided in Section 10.5.
Section 8.9. Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which
it may be consolidated or any corporation or association resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation or association succeeding to the business of the Trustee,
or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation or association shall be eligible under the
provisions of Section 8.6, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust for a given Series may at the time
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be located, the Depositor and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of such
Trust, and to vest in such Person or Persons, in such capacity, such title to
such Trust, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable. If the Depositor
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Administrative Agent Termination Event
shall have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.6 and no notice to Holders of Certificates of the appointment of co-trustee
or co-trustees or separate trustee or trustees shall be required under Section
8.8. Notwithstanding anything contained herein to the contrary, the appointment
of a co-trustee pursuant to this Section 8.10 shall not release the Trustee from
the duties, obligations, responsibilities or liabilities arising under this
Agreement.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to an Administrative Agent hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to a Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at
the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11. Appointment of Office or Agency. As specified
in a Series Supplement, the Trustee shall appoint an office or agency in the
City of New York where the Certificates may be surrendered
for registration of transfer or exchange, and presented for the
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final distribution with respect thereto, and where notices and demands to or
upon the Trustee in respect of the Certificates of the related Series and this
Agreement may be served.
Section 8.12. Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
association;
(ii) neither the execution nor the delivery by the Trustee
of this Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will violate its charter documents or by-laws;
(iii) the Trustee has full power, authority and right to
execute, deliver and perform its duties and obligations as set forth
herein and in each Series Supplement to which it is a party and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement; and
(iv) this Agreement has been duly executed and delivered
by the Trustee and constitutes the legal, valid and binding obligation
of the Trustee, enforceable in accordance with its terms, except
as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity
or at law).
Section 8.13. Trustee to Act Only in Accordance With This
Agreement or Pursuant to Instructions of Certificateholders. The Trustee shall
only take such action or shall refrain from taking such action under this
Agreement as directed pursuant to a specific provision of this Agreement or, if
required hereunder, by all the Certificateholders, and the Trustee shall not
otherwise act in respect of a Trust; provided, however, that the Trustee shall
not be required to take any such action if it reasonably determines, or
receives, at the expense of the Certificateholders, an Opinion of Counsel (with
copies thereof delivered to the Certificateholders and the Depositor) to the
effect that such action is inconsistent with the purpose of such Trust set
forth in Section 2.7 or contrary to the terms hereof.
Section 8.14. Accounting and Reports to Certificateholders,
Internal Revenue Service and Others. The Trustee shall (a) maintain the books of
each Trust on a calendar year basis on the accrual method of accounting, (b)
after the close of each calendar year, deliver to each Certificateholder, as may
be required by the Code and applicable Treasury Regulations or otherwise, such
information for such year as may be required to enable each Certificateholder
to prepare its federal income tax returns, (c) as specifically directed in
writing by the Depositor, file such tax returns relating to each Trust and make
such elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as
to maintain such Trust's characterization as other than an association taxable
as a corporation for federal income tax purposes, (d) cause such tax returns
to be signed in the manner required by law and (e) collect
or cause to be collected any withholding
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tax as described in and in accordance with Section 4.4 with respect to income or
distributions to Certificateholders.
Section 8.15. Signature on Returns. Except as required by law, the
Trustee shall sign on behalf of the Trust any and all tax returns of such Trust
presented to it by the Depositor in final execution form.
ARTICLE IX
Termination
Section 9.1. Termination upon Purchase or Liquidation of All
Underlying Securities. (a) The respective obligations and responsibilities
under this Agreement of the Depositor, the Administrative Agent, if any, and
the Trustee (other than the obligations of any such Administrative Agent to
provide for and the Trustee to make distributions to Holders of the
Certificates of any given Series as hereafter set forth) shall terminate upon
the distribution to such Holders of all amounts held in all the Accounts
for such Series or by an Administrative Agent, if any, and required to be paid
to such Holders pursuant to this Agreement on the Distribution Date coinciding
with or following the earlier to occur of (i) if and as provided in the Series
Supplement for such Series, the purchase by, and at the sole option of, the
Administrative Agent, if any, as provided in the Series Supplement for such
Series, of all remaining Underlying Securities for such Series in the Trust
for such Series on any Distribution Date, provided that such option may be
exercised only if the aggregate principal amount of such Underlying Securities
at the time of any such purchase is less than 10% (or such other percentage as
may be specified in such Series Supplement) of the aggregate principal amount
of all Underlying Securities deposited in such Trust as of the applicable
Cut-off Date and (ii) the final payment on or other liquidation (which may
include redemption or other purchase thereof by the applicable Underlying
Securities Issuer) (or any Advance with respect thereto) of the last Underlying
Security remaining in the Trust for such Series or the disposition of all
property acquired upon foreclosure or liquidation of any such Underlying
Security; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United
States to the Court of St. ▇▇▇▇▇, living on the date hereof.
(b) The Administrative Agent shall exercise its option to
purchase all the Underlying Securities remaining in the Trust pursuant to
clause (i) of Section 9.1(a) not later than 91 days prior to the anticipated
date of purchase of all such Underlying Securities, at a price as may be
specified in the applicable Series Supplement; provided, however, that such
price shall not be less than the then outstanding aggregate principal amount
of such Underlying Securities as determined on the date of purchase. The
proceeds of such purchase will be deposited into the Certificate Account and
applied in the same manner and priority that collections on Underlying
Securities would be applied as provided in the applicable Series Supplement.
(c) Written notice of any termination shall be provided as set
forth in Section 10.5.
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(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Scheduled Distribution Date, or the Distribution
Date coinciding with or next following the earlier to occur of the occurrences
specified in clauses (i) and (ii) of Section 9.1(a), with respect to the
applicable Series of Certificates, the Trustee shall distribute to each Holder
presenting and surrendering its Certificates (i) the amount otherwise
distributable on such Distribution Date in accordance with Section 4.1 in
respect of the Certificates so presented and surrendered, if not in connection
with the purchase by an Administrative Agent or the Depositor of all the
Underlying Securities or (ii) as specified in the applicable Series Supplement,
if in connection with an Administrative Agent's purchase of all the remaining
Underlying Securities. Any funds not distributed on such Distribution Date shall
be set aside and held in trust for the benefit of Certificateholders not
presenting and surrendering their Certificates in the aforesaid manner, and
shall be disposed of in accordance with this Section 9.1 and Section 4.1 hereof.
Immediately following the deposit of funds in trust hereunder, the Trust for
such Series shall terminate.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment. (a) This Agreement may be amended from
time to time by the Depositor and the Trustee without notice to or the consent
of any of the Certificateholders for any of the following purposes: (i) to cure
any ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; (ii) to add or
supplement any Credit Support for the benefit of any Certificateholders
(provided that if any such addition affects any series or class of
Certificateholders differently than any other series or class of
Certificateholders, then such addition will not, as evidenced by an Opinion of
Counsel, have a material adverse effect on the interests of any affected Series
or Class of Certificateholders); (iii) to add to the covenants, restrictions
or obligations of the Depositor, the Administrative Agent, if any, or the
Trustee for the benefit of the Certificateholders; (iv) to add, change or
eliminate any other provisions with respect to matters or questions arising
under this Agreement; (v) to comply with any requirements imposed by the Code;
(vi) to evidence and provide for the acceptance of appointment hereunder of a
Trustee other than U.S. Bank National Association, as Trustee for a Series of
Certificates, and to add to or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of the
separate Trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 5.1; (vii) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Certificates of one or more
Series or to add or change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder, so long as (x) any such amendment described in (i) through (vii) will
not, as evidenced by an Opinion of Counsel, cause the applicable Trust (unless
otherwise specified in a related Series Supplement) to fail to qualify as a
grantor trust for federal income tax purposes or result in a sale or exchange
of any Certificate for tax purposes and (y) the Trustee has received written
confirmation from each Rating Agency rating such Certificates that such
amendment will not cause such Rating Agency rating such Certificates to reduce
or withdraw the then current rating thereof; or (viii) to provide for the
issuance of a new Series of Certificates pursuant to a Series Supplement issued
hereunder pursuant to Sections 5.1 and 5.13.
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(b) Without limiting the generality of the foregoing, with respect
to any Series this Agreement may also be modified or amended from time to time
by the Depositor and the Trustee with the consent of the Holders of
Certificates representing the Required Percentage--Amendment of the aggregate
Voting Rights of those Certificates to which such modification or amendment
relates for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or alter the timing
of, payments received on Underlying Securities which are required to be
distributed on any Certificate without the unanimous consent of the Holders
of such Certificates, (ii) adversely affect in any material respect the
interests of the Holders of any Series (or Class within such Series) of
Certificates in a manner other than as described in (i), without the consent
of the Holders of Certificates of such Series or Class evidencing not less than
the Required Percentage--Amendment of the aggregate Voting Rights of such
Series or Class or (iii) reduce the percentage of aggregate Voting Rights
required by (ii), as described in (ii), without the consent of the Holders of
all Certificates of such Series or Class then Outstanding; and provided further
that the Depositor shall furnish to the Trustee an Opinion of Counsel (unless
otherwise indicated in a related Series Supplement) stating that, in the opinion
of such counsel, any such amendment would not affect the characterization of the
applicable Trust as a "grantor trust" for federal income tax purposes.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 10.1, Certificates
registered in the name of the Depositor, or any Affiliate thereof, shall be
entitled to Voting Rights with respect to matters affecting such Certificates;
and provided further that in the event the Rating Agency Condition is not
satisfied with respect to such modification or amendment, the Required
Percentage--Amendment shall be increased to require an aggregate percentage of
the aggregate Voting Rights in the amount specified, if any, in the applicable
Series Supplement. Notwithstanding any other provision of this Agreement, this
Section 10.1(b) shall not be amended without the unanimous consent of the
Holders of all such Certificates.
(c) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or
modification to each Certificateholder of the affected Series or Class and to
the Rating Agency. It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Section 10.2. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.3. Limitation on Rights of Certificateholders. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
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(b) No Certificateholder of a given Series shall have any right to
vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of any Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder of a given Series shall have any right by
virtue of any provision of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless (i) such Holder previously shall have given to the Trustee a written
notice of breach and of the continuance thereof and unless also the Holders
of Certificates of such Series evidencing not less than the Required
Percentage--Remedies of the aggregate Voting Rights of such Series shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 15 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and agreed that the Trustee shall not be obligated to make any
investigation of matters arising under this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any Certificateholders unless such Certificateholders have
offered to the Trustee the reasonable indemnity referred to above. It is further
understood and agreed, and expressly covenanted by each Certificateholder of
each Series with every other Certificateholder of such Series and the Trustee,
that no one or more Holders of Certificates of such Series shall have any right
in any manner whatever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates
of such Series, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except in
the manner herein provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 10.4. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely therein without reference to
such State's principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.
Section 10.5. Notices. All directions, demands and notices
hereunder shall be in writing and shall be delivered as set forth in the
applicable Series Supplement. Any notice required to be provided to a Holder of
a Certificate shall be given by first class mail, postage prepaid, at the last
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
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Section 10.6. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 10.7. Notice to Rating Agency. The Trustee shall use its
best efforts promptly to provide notice to each Rating Agency with respect to
each of the following of which it has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Administrative Agent Termination
Event;
(iii) the resignation or termination of an Administrative Agent,
if any, or the Trustee;
(iv) the appointment of a successor Trustee;
(v) the repurchase or substitution of Underlying Securities,
if any, pursuant to Section 2.3;
(vi) the final payment to Holders of the Certificates of any
Class;
(vii) any change in the location of the Certificate Account;
and
(viii) any event that would result in the inability of the
Trustee to make Advances.
In addition, the Trustee shall promptly furnish to each Rating Agency copies of
each report to Certificateholders described in Section 4.2 and the
Administrative Agent, if any, or otherwise the Trustee shall promptly furnish to
each Rating Agency copies of the following:
(i) each annual statement as to compliance described in Section
3.15; and
(ii) each annual independent public accountants' servicing
report described in Section 3.16.
Any such notice pursuant to this Section shall be in writing and shall be deemed
to have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to each Rating Agency at the
address specified in the applicable Series Supplement.
Section 10.8. Grant of Security Interest. It is the express intent
of the parties hereto that each conveyance of any Underlying
Securities by the Depositor to the Trustee be, and be construed
as, a sale of the Underlying Securities by the Depositor and not a
pledge of or grant of a security interest in any Underlying
Securities by the Depositor to secure a debt or other obligation
of the Depositor. However, in the event that, notwithstanding the aforementioned
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intent of the parties, any Underlying Securities are held to be property of the
Depositor, then; (1) it is the express intent of the parties that such
conveyance be a pledge of or grant of a security interest in such Underlying
Securities by the Depositor to the Trustee to secure a debt or other obligation
of the Depositor and (b)(1) this Agreement shall also be a security agreement
within the meaning of Articles 8 and 9 of the Uniform Commercial Code as in
effect from time to time in the State of New York, or such other State as may be
specified in the related Series Supplement; (2) the conveyance provided for in
Section 2.1 shall be a grant by the Depositor to the Trustee of a security
interest in all the Depositor's right, title and interest in and to such
Underlying Securities and all amounts payable to the holders of such Underlying
Securities in accordance with the terms thereof and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including all amounts from time to time held or
invested in the applicable Certificate Account, whether in the form of cash,
instruments, securities or other property; (3) the obligations secured by such
security agreement shall be all the Depositor's obligations under this
Agreement, including the obligation to provide to the Certificateholders the
benefits of this Agreement relating to such Underlying Securities and the
applicable Trust; and (4) notifications to persons holding such property, and
acknowledgements, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgements, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law. The
Depositor shall direct the Trustee, to the extent consistent with this
Agreement, to take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Underlying
Securities, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
for so long as any of the Underlying Securities remain outstanding. Without
limiting the generality of the foregoing, the Trustee, upon receipt of such
direction, shall file, or shall cause to be filed, all filings identified by the
Depositor to be necessary to maintain the effectiveness of any original filings
identified by the Depositor to be necessary under the Uniform Commercial Code as
in effect in any jurisdiction to perfect the Trustee's security interest in or
lien on the Underlying Securities, including (x) continuation statements and (y)
such other statements as may be occasioned by (1) any change of name of the
Depositor or the Trustee, (2) any change of location of the place of business,
the chief executive office, or jurisdiction of organization of the Depositor or
(3) any transfer of any interest of the Depositor in any Underlying Security.
Section 10.9. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of the Trustee (including any co-trustee),
the Administrative Agent, if any, (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) and the Depositor
agrees that it shall not, until the date which is one year and one day after the
earlier of a Trust Termination Event or the Final Scheduled Distribution Date,
acquiesce, petition or otherwise invoke or cause the applicable Trust to invoke
the process of the United States of America, any State or other political
subdivision thereof or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government for the
purpose of commencing or sustaining a case by or against the Trust under a
Federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or all or any part of the property or assets of the Trust or
ordering the winding up or liquidation of the affairs of the Trust.
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Section 10.10. No Recourse. Provided that there exists no default
on the Underlying Securities, neither the Trustee (including any co-trustee),
the Administrative Agent, if any (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) nor the Depositor
shall have any recourse to the Underlying Securities, except as specifically
provided in the related Series Supplement.
Section 10.11. Article and Section References. All article and
section references used in this Agreement, unless otherwise provided, are to
articles and sections in this Agreement.
Section 10.12. Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Agreement by
any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Agreement) are a part of and govern
this Agreement, whether or not physically contained herein.
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IN WITNESS WHEREOF, the Depositor and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
STRUCTURED OBLIGATIONS CORPORATION,
as Depositor
By:
-------------------------------
Authorized Signatory
U.S. BANK NATIONAL ASSOCIATION , as
Trustee
By:
-------------------------------
Authorized Signatory