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EXHIBIT 3
DRAFT
FORM OF SERIES TRUST AGREEMENT
between
CORPORATE ASSET BACKED CORPORATION,
as Depositor,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
for Trust Certificates issued by
CABCO Trust for ▇.▇. ▇▇▇▇▇▇ Debentures
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TRUST CERTIFICATES, CABCO TRUST FOR
▇.▇. PENNEY DEBENTURES
SERIES TRUST AGREEMENT
This Series Trust Agreement (this "Series Trust Agreement"), dated as
of March __, 1999, between Corporate Asset Backed Corporation, as Depositor, and
United States Trust Company of New York, as Trustee, for $50,000,000 Trust
Certificates for ▇.▇. ▇▇▇▇▇▇ Debentures (the "Certificates"), incorporates by
reference the Standard Terms and Provisions of Trust Agreement (the "Standard
Terms") attached as Exhibit B hereto, and is governed by the Standard Terms as
fully as if set forth herein at length. All capitalized terms not defined herein
shall have the same meaning as set forth in the Standard Terms.
W I T N E S S E T H:
Section 1. A Trust is hereby created under the laws of the State of New
York and in the manner specified in Article II of the Standard Terms for the
benefit of Holders of the Certificates. The assets of the Trust shall consist of
the securities (referred to herein and in the Standard Terms as the "Bonds")
described in Exhibit A hereto, all distributions thereon after the date hereof,
all right, title and interest in and to such distributions and all other rights
and privileges of the Holders of the Certificates under this Series Trust
Agreement.
Section 2. The name of the Trust is CABCO Trust for ▇.▇. Penney
Debentures.
Section 3. The Certificates shall be issued as a single class in the
amount set forth in Exhibit A hereto; shall have the standard terms set forth in
the Standard Terms; and shall have the nonstandard terms set forth in Exhibit A
hereto. Certificates shall be issued in substantially the form of the Form of
Certificate set forth in Appendix A to the Standard Terms. The Certificates
shall evidence fractional interests in the assets of the Trust, payable solely
from payments received by the Trustee attributable to the Bonds.
Section 4. The Depositor hereby authorizes the Trustee to execute and
deliver a letter of representations, in the form customarily provided to DTC,
from the Trustee and the Depositor dated the date of delivery of the
Certificates (the "Letter of Representations").
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IN WITNESS WHEREOF, the parties hereto have caused this Series Trust
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
CORPORATE ASSET BACKED CORPORATION,
as Depositor
By________________________________
Authorized Signatory
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By________________________________
Authorized Signatory
Exhibit A -- Description of the Bonds and the Certificates; Description of
Certain Terms Used in the Agreement
Exhibit B -- Standard Terms and Provisions of Trust Agreement
Exhibit C -- Forms of Certificate
Exhibit D -- Officer's Certificate of the Trustee
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EXHIBIT A
TO SERIES TRUST
AGREEMENT
DESCRIPTION OF THE BONDS AND THE CERTIFICATES; DESCRIPTION OF
CERTAIN TERMS USED IN THE AGREEMENT
Part I -- Description of the Bonds
Issuer: ▇. ▇. ▇▇▇▇▇▇ Company, Inc.
Bonds: 7 5/8% Debentures due March 1, 2097
Dated: February 20, 1997
Original Principal
Maturity Date: March 1, 2097
Original Par Value
Amount Issued: $500,000,000
CUSIP Number: 708160 BL 9
Stated Interest Rate: 7 5/8%
Interest Payment Dates: March 1 and September 1
First Call Date: Closing Date
Redemption Date
and Price: The redemption price will be equal to the greater of (i)
100% of the principal amount of the Bonds to be redeemed
and (ii) the sum of the present value of the Remaining
Scheduled Payments (as such term is defined in the
Prospectus Supplement dated February 20, 1997, relating
to the Bonds (the "▇. ▇. ▇▇▇▇▇▇ Prospectus Supplement"))
thereon discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as such term
is defined in the ▇. ▇. Penney Prospectus Supplement)
plus 20 basis points (or, in the case of a redemption in
connection with the occurrence of a Tax Event (as such
term is defined in the ▇.▇. ▇▇▇▇▇▇ Prospectus
Supplement), 40 basis points), together in either case
with accrued interest on the principal amount being
redeemed to the date of redemption.
Fiscal Agent: _________________
Mode of Payment
of Bonds: By credit to the account of the holder at DTC.
Par Value Amount of
Bonds Deposited Under
Trust Agreement: $50,000,000
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The Bonds will be held by the Trustee as Book-Entry Credits at DTC.
Part II -- Description of the Certificates
Classes of Certificates: Pooled Certificates
Aggregate Face Amount
of Pooled Certificates $50,000,000
Item Aggregate Face Minimum Offered
Number Due Date CUSIP Number Amount Offered Denominations
------ -------- ------------ -------------- -------------
1 March 1, 2097 $50,000,000 $25
Part III -- Definitions of Certain Terms Used in the Agreement
Authorized Denominations (Section 1.01) $25
Certificate Principal Amount
(Section 1.01) $25
Closing Date (Section 1.01) March [ ], 1999.
Corporate Trust Office (Section 1.01) United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Depositor Address (Section 9.04) Corporate Asset Backed Corporation
c/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Distribution Dates (Section 1.01) March 1 and September 1 of each year,
commencing September 1, 1999.
Indenture (Section 1.01) Indenture, dated as of April 1, 1997,
between ▇. ▇. Penney Company, Inc., and
First Trust of California, National
Association, Successor Trustee to Bank
of America National Trust and Savings
Association.
Indenture Trustee (Section 1.01) First Trust of California, National
Association
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Trustee Address (Section 9.04) United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Rating Agency (Section 1.01) Each of ▇▇▇▇▇'▇ Investors Service, Inc. and
Standard & Poor's Ratings Group
Rating Agency Address
(Section 9.04) ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Standard & Poor's Rating Group
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Retained Amount (Section 1.01) Interest accrued on the Bonds from, and
including, March 1, 1999 to, but excluding,
the Closing Date.
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EXHIBIT B
TO SERIES TRUST
AGREEMENT
STANDARD TERMS AND PROVISIONS OF SERIES TRUST DEPOSIT AGREEMENT
between
CORPORATE ASSET BACKED CORPORATION,
as Depositor,
and
the Trustee
Relating to Trust Certificates of the Series identified
in the Series Trust Deposit Agreement
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS.................................................... -1-
Section 1.01. Certain Definitions................................... -1-
ARTICLE II - CREATION OF TRUST; DELIVERY AND CUSTODY
OF BONDS; FORM OF CERTIFICATES; EXECUTION AND
DELIVERY, SURRENDER AND REDEMPTION OF CERTIFICATES................... -7-
Section 2.01. Creation of Trust; Delivery and Custody of Bonds;
Execution and Delivery of Certificates in Respect
Thereof............................................... -7-
Section 2.02. Form of Certificates.................................. -8-
Section 2.03. Registration and Registration of Transfer and Exchange
of Certificates ...................................... -8-
Section 2.04. Limitations on Execution and Delivery, Surrender and
Registration of Transfer and Exchange of Certificates. -9-
Section 2.05. Mutilated, Destroyed, Lost or Stolen Certificates..... -9-
Section 2.06. Persons Deemed Owners................................. -10-
Section 2.07. Cancellation and Destruction of Surrendered
Certificates.......................................... -10-
Section 2.08. Book-Entry............................................ -10-
Section 2.09. Action or Consent of Holders.......................... -12-
Section 2.10. Transfer of Certificates Held by DTC to Successor
Depository............................................ -13-
Section 2.11. Temporary Certificates................................ -13-
ARTICLE III - CERTAIN OBLIGATIONS OF HOLDERS OF
CERTIFICATES; DEPOSITOR'S WARRANTIES................................. -14-
Section 3.01. Filing Proofs, Certificates and Other Information..... -14-
Section 3.02. Payment of Taxes or Other Governmental Charges........ -14-
Section 3.03. Depositor's Warranties................................ -14-
ARTICLE IV - PAYMENT OF INTEREST AND PRINCIPAL; CUSTODY
OF PROCEEDS OF INTEREST AND PRINCIPAL PAYMENTS................. -15-
Section 4.01. Payment of Interest; Payment of Principal; Mandatory
Exchange of Callable Principal Certificates and
Callable Stripped Bond Certificates................... -15-
Section 4.02. Segregation of Moneys Received from Issuers in Respect
of Bonds.............................................. -17-
Section 4.03. Paying Agent.......................................... -17-
ARTICLE V - THE TRUSTEE AND THE DEPOSITOR.................................. -18-
Section 5.01. Eligibility of Trustee; Disqualification.............. -18-
Section 5.02. Trustee's Duties on Default; No Liability of the
Trustee or the
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Depositor on the Bonds................................ -18-
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee; Distribution of Amounts Received in
Respect of Defaulted Bonds............................ -19-
Section 5.04. Control by Holders.................................... -20-
Section 5.05. Waiver of Past Defaults............................... -20-
Section 5.06. Maintenance of Offices and Agencies by the Trustee.... -21-
Section 5.07. Prevention of or Delay in Performance by the Trustee
or the Depositor...................................... -21-
Section 5.08. Liability of the Trustee and the Depositor............ -21-
Section 5.09. Obligations of the Depositor.......................... -22-
Section 5.10. Preferential Collection of Claims Against Depositor... -26-
Section 5.11. Resignation and Removal of the Trustee; Appointment of
Successor Trustee..................................... -26-
Section 5.12. Indemnification by the Depositor; Contribution........ -28-
Section 5.13. Undertaking for Costs................................. -28-
Section 5.14. Charges and Expenses.................................. -29-
Section 5.15. Trustee Reports....................................... -29-
ARTICLE VI - HOLDERS' LISTS AND REPORTS.................................... -29-
Section 6.01. Depositor to Furnish Names and Addresses of Holders to
Trustee............................................... -29-
Section 6.02. Preservation of Information, Communications to Holders -30-
Section 6.03. Reports by Trustee.................................... -30-
ARTICLE VII - AMENDMENT AND TERMINATION.................................... -30-
Section 7.01. Amendment............................................. -30-
Section 7.02. Termination........................................... -31-
ARTICLE VIII - REDEMPTION OF CERTIFICATES.................................. -31-
Section 8.01. Redemption............................................ -31-
Section 8.02. Notice of Redemption.................................. -31-
ARTICLE IX - MISCELLANEOUS................................................. -32-
Section 9.01. Exclusive Benefit of Parties and Holders of
Certificates; Effective Date.......................... -32-
Section 9.02. Invalidity of Provisions.............................. -32-
Section 9.03. Conflict with Trust Indenture Act..................... -32-
Section 9.04. Notices............................................... -32-
Section 9.05. Governing Law; Forum.................................. -33-
Section 9.06. Headings.............................................. -33-
Section 9.07. Covenant of Depositor and Trustee Not to Place Trust
in Bankruptcy......................................... -33-
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STANDARD TERMS AND PROVISIONS OF SERIES TRUST DEPOSIT AGREEMENT
This document constitutes Standard Terms and Provisions of Series Trust
Deposit Agreement which are to be incorporated by reference in, and attached as
Exhibit B to, one or more series trust deposit agreements (each, a "Series Trust
Agreement") by and among Corporate Asset Backed Corporation, as Depositor, and
the trustee designated therein, as Trustee.
Each Series Trust Agreement will create a trust under the laws of the
State of New York to hold securities (the "Bonds") and all distributions thereon
and will provide for the creation, execution and delivery of trust certificates
(the "Certificates").
These Standard Terms shall be of no force and effect unless and until
incorporated by reference into a Series Trust Agreement.
The following terms and provisions shall govern the Certificates subject
to contrary or additional terms and provisions expressly set forth in a Series
Trust Agreement, which contrary or additional terms and provisions of the Series
Trust Agreement shall control.
ARTICLE I
DEFINITIONS
Section 1.01. Certain Definitions. All capitalized terms used herein
shall have the meaning set forth in this Section 1.01 unless the context
otherwise requires:
The term "Agreement" shall mean the trust deposit agreement
consisting of the Series Trust Agreement into which is incorporated by reference
the Standard Terms, including all exhibits, schedules, appendices, supplements
and amendments to each.
The term "Authorized Denominations" for each class of Certificates
shall mean the dollar amount, and greater multiples thereof (or of such other
dollar amount specified in the Series Trust Agreement), set forth in the Series
Trust Agreement.
The term "Authorized Officer" shall mean any officer of the
Depositor who is authorized to act for the Depositor in matters relating to the
Depositor.
The term "Available Information Event" shall mean that the Issuer
has suspended its Exchange Act reporting requirements at a time when the
Exchange Act reporting requirements with respect to the Certificates have not
been suspended or terminated.
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The term "Beneficial Owner" shall mean any purchaser of Certificates
which are held through a Direct or Indirect DTC Participant, as such terms are
used in the rules and regulations of DTC.
The term "Bond" shall mean, with respect to the issuance of
Certificates hereunder, the Bonds specified in the Series Trust Agreement
relating to such Certificates in the aggregate principal amount so specified.
The term "Book-Entry Credit" shall mean the evidence of the deposit
by the Trustee of one or more Bonds in a separate account of the Trustee, as
Trustee under this Agreement, identified in the Series Trust Agreement.
The term "Business Day" shall mean a day which is not a day when
banking institutions or trust companies in New York City are authorized or
obligated by law, regulation or executive order to remain closed.
The term "Callable Principal" shall mean the right to receive (i)
the payment, whether upon stated maturity or upon earlier redemption, of the
Principal and redemption premium, if any, of Bonds which are redeemable at the
option of the Issuer thereof prior to stated maturity, and (ii) the Interest
relating to such Bonds with respect to Interest Payment Dates after the First
Call Date for such Bonds, in each case subject to Section 5.03(b) hereof.
The term "Certificate" shall mean a certificate of a class of
certificates to be issued under this Agreement, which classes are specified in
the Series Trust Agreement for the series. Such classes may consist of:
(i) Coupon Certificates, which entitle the Holders thereof, in the
aggregate, to the Interest payable on a single Interest Payment Date on or
before the First Call Date for the Bonds, or the stated maturity date in
the case of Bonds not redeemable (otherwise than in connection with a
default or acceleration) at the option of the Issuer thereof prior to
stated maturity.
(ii) Principal Certificates, which entitle the Holders thereof, in
the aggregate, to Principal, payable at the stated maturity of the Bonds,
of Bonds which are not redeemable (otherwise than in connection with a
default or acceleration) at the option of the Issuer thereof prior to
stated maturity.
(iii) Callable Principal Certificates, which entitle the Holders
thereof, in the aggregate, to the Callable Principal relating to the
Bonds.
(iv) Stripped Coupon Certificates, which entitle the Holders
thereof, in the aggregate, to a specified portion (less than 100%) of the
Interest payable on a single Interest Payment Date on or before the First
Call Date for the Bonds, or the stated maturity date in the
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case of Bonds not redeemable (otherwise than in connection with a default
or acceleration) at the option of the Issuer thereof prior to stated
maturity.
(v) Stripped Bond Certificates, which entitle the Holders thereof,
in the aggregate, to Principal, payable at the stated maturity of the
Bonds, of Bonds which are not redeemable (otherwise than in connection
with a default or acceleration) at the option of the Issuer thereof prior
to stated maturity, and to a specified portion (less than 100%) of
Interest due on the Bonds on each Interest Payment Date on or prior to the
First Call Date.
(vi) Callable Stripped Bond Certificates, which entitle the Holders
thereof, in the aggregate, to the Callable Principal relating to the
Bonds, and to a specified portion (less than 100%) of Interest due on the
Bonds on each Interest Payment Date on or prior to the First Call Date.
(vii) Pooled Certificates, which entitle the Holders thereof to all
the interest payments on the Bonds, all the principal payments on the
Bonds and any related premium payable upon early redemption of the Bonds
less any Retained Amount;
provided, that any designation of classes of Certificates made in the Series
Trust Agreement shall consist of only one of the following options, designated
by letters (a) - (e): (a) Coupon Certificates and Principal Certificates, (b)
Coupon Certificates and Callable Principal Certificates, (c) Stripped Coupon
Certificates and Stripped Bond Certificates, (d) Stripped Coupon Certificates
and Callable Stripped Bond Certificates, or (e) Pooled Certificates.
The term "Certificate Register" shall have the meaning specified in
Section 2.03 hereof.
The term "Closing Date" shall mean the date set forth and designated
as such in the Series Trust Agreement.
The term "Commission" shall mean the Securities and Exchange
Commission.
The term "Corporate Trust Office" shall mean the principal office of
the Trustee as identified in the Series Trust Agreement.
The term "Depositor" shall mean Corporate Asset Backed Corporation,
a Delaware corporation, and any successor as Depositor hereunder.
The term "Designated Office in New York City," when used with
respect to the Trustee, shall mean an office maintained in accordance with
Section 5.06 hereof and designated by the Trustee.
The term "DTC" shall mean The Depository Trust Company, a clearing
agency registered with the Commission, its successor or successors, and its
nominee or nominees.
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The term "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
The term "First Call Date" shall mean, for any Bond, the first date
such Bond can be redeemed at the option of the Issuer thereof, which date shall
be specified in the Series Trust Agreement.
The term "Holder" shall mean a person in whose name a Certificate is
registered in the Certificate Register.
The term "Independent Certificate" shall mean a certificate of a
non-affiliated accountant, engineer, appraiser or other expert, as required by
the TIA.
The term "Indenture Trustee" shall mean the trustee or other
fiduciary for the Bonds.
The term "Interest" shall mean the right to receive the interest
payable on the Bonds on each Interest Payment Date, subject to Section 5.03(b)
hereof.
The term "Interest Payment Dates" shall mean the dates on which
interest payments are due on the Bonds as specified in the Series Trust
Agreement.
The term "Issuer" shall mean the issuer of the Bonds described in
Exhibit A to the Series Trust Agreement.
The term "Issuer Payment Default" shall have the meaning specified
in Section 5.03 hereof.
The term "Letter of Representations" shall mean the letter of
representations from the Depositor and the Trustee to DTC with respect to the
Certificates held at DTC.
The term "Officer's Certificate of the Depositor" shall mean a
certificate signed by any Authorized Officer of the Depositor and delivered to
the Trustee. Unless otherwise specified, any reference in this Agreement to an
Officer's Certificate of the Depositor shall be to an Officer's Certificate of
any Authorized Officer of the Depositor.
The term "Officer's Certificate of the Trustee" shall mean the
certificate of the Trustee in the form attached as Exhibit D to the Series Trust
Agreement.
The term "Opinion of Counsel" shall mean one or more written
opinions of counsel who may, except as otherwise expressly provided in this
Agreement, be employees of or counsel to the Depositor and who shall be
satisfactory to the Trustee, and which opinion or opinions shall be addressed to
the Trustee as Trustee, shall comply with any applicable requirements of this
Agreement, and shall be in form and substance satisfactory to the Trustee.
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The term "Outstanding Certificates" shall mean, as of the date of
determination, all Certificates theretofore authenticated and delivered under
this Agreement except:
(i) Certificates theretofore canceled by the Certificate registrar
or delivered to the Certificate registrar for cancellation;
(ii) Certificates or portions thereof for which money in the
necessary amount for payment thereof has been theretofore deposited with
the Trustee or any Paying Agent in trust for the Holders of such
Certificates (provided, however, that if such Certificates are to be
redeemed, notice of such redemption has been duly given pursuant to this
Agreement or provision therefor, satisfactory to the Trustee, has been
made); and
(iii) Certificates in exchange for which 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;
provided that in determining whether the Holders have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Depositor, the Trustee or any Affiliate of any of the foregoing
Persons shall be disregarded and for purposes of determining the requisite
amount of Outstanding Certificates shall be deemed not to be Outstanding
Certificates, 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 that the Trustee knows to be so owned shall
be so disregarded.
The term "Participant" means an entity maintaining a custodial
account in its own name with DTC.
The term "Paying Agent" shall mean the Trustee or any other Person
that meets the eligibility standards for the Trustee specified in Section 5.01
and is authorized to make payments of Principal or Interest on behalf of the
Trustee.
The term "Person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
The term "Petition Date" shall mean (i) the date on which a
bankruptcy petition is filed by or against the Issuer of the Bonds or (ii) the
date of commencement of any other similar proceeding, as applicable.
The term "Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
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The term "Principal" shall mean the right to receive the principal
due on the Bonds, subject to Section 5.03(b) hereof.
The term "Proceeding" shall mean any suit in equity, action at law
or other judicial or administrative proceeding.
The term "Rating Agency" shall mean each rating agency which is
identified in Exhibit A to the Series Trust Agreement.
The term "Redemption Date" shall mean, with respect to any Bonds to
be redeemed, the date fixed by the Issuer thereof for such redemption.
The term "Responsible Officer" shall mean, with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee, including
any Senior Vice President, Vice President, Assistant Vice President, Secretary,
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.
The term "Retained Amount" shall mean the amount, if any, described
in Exhibit A to the Series Trust Agreement, which amount shall be held by the
Trustee in trust for the benefit of the Depositor and shall be paid by the
Trustee to the Depositor in accordance with Section 4.01 hereof.
The term "Series" shall mean any series of Certificates identified
in a Series Trust Agreement.
The term "Series Trust Agreement" shall mean the particular series
trust deposit agreement between the Depositor and the Trustee into which these
Standard Terms have been incorporated.
The term "Standard Terms" shall mean this Standard Terms and
Provisions of Series Trust Deposit Agreement between Corporate Asset Backed
Corporation, as Depositor, and the Trustee.
The term "TIA" shall mean the Trust Indenture Act of 1939, as
amended.
The term "Trust" shall mean the trust established by this Agreement
for the benefit of the Holders of the Certificates under the laws of the State
of New York.
The term "Trustee" shall mean the institution acting as trustee with
whom the Depositor has entered into the Series Trust Agreement.
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The term "Voting Rights" shall mean voting rights on the
Certificates apportioned as required by Section 2.09 hereof.
ARTICLE II
CREATION OF TRUST; DELIVERY AND CUSTODY
OF BONDS; FORM OF CERTIFICATES; EXECUTION AND
DELIVERY, SURRENDER AND REDEMPTION OF CERTIFICATES
Section 2.01. Creation of Trust; Delivery and Custody of Bonds;
Execution and Delivery of Certificates in Respect Thereof. The Trust shall be
established by the Depositor by execution and delivery of the Series Trust
Agreement and the deposit of the Bonds pursuant thereto. The sole asset of the
Trust shall be the Bonds deposited by the Depositor and any other related
property specified in the Series Trust Agreement. The Certificates shall
evidence fractional interests in designated portions of the assets of the Trust.
The income received by, and the assets of, the Trust shall be distributed solely
in accordance with this Agreement. The Depositor shall, by book-entry credit or
otherwise, irrevocably deliver the Bonds to the Trustee and, concurrently
therewith, the Trustee shall, in accordance with the provisions of this
Agreement, execute and deliver to the Depositor, or such person or persons as
the Depositor may designate by written instruction, the classes of Certificates
identified in the Series Trust Agreement, evidencing the aggregate amount, in
Authorized Denominations, of the Bonds so delivered to the Trustee. The
Depositor shall also, in connection with the Series Trust Agreement, enter into
a separate agreement with the Trustee, satisfactory to the Trustee, providing
for the payment of the charges and expenses of the Trustee in respect of such
Certificates.
The Trustee shall accept the Bonds so delivered as trustee for the
Holders of the Certificates, which shall be delivered hereunder to evidence the
interests of the Holders in the Bonds, and shall hold the Bonds as provided
hereunder. The Bonds shall be deposited by Book-Entry Credit in an account
maintained on behalf of the Trustee at DTC, unless the Series Trust Agreement
specifies that the Trustee shall hold the Bonds (i) in a special trust account
created by separate recordation on its books, separate from all other assets of
the Trustee, or (ii) in some other manner. Separate subaccounts of any such
special trust account shall be established for each series of Certificates.
The Trustee shall hold all the Bonds delivered to it pursuant to
this Agreement in trust for the Holders, identified and held separate and apart
from the general assets of the Trustee. The account of the Trustee in which the
Bonds are held shall not contain any property of the Trustee in its individual
capacity and shall contain only property held by the Trustee as fiduciary. The
Trustee agrees that it does not have the authority to assign, transfer,
encumber, pledge, sell, set-off or otherwise dispose of any of the Bonds or any
interests therein except as provided hereunder or as required by law.
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The Trustee acknowledges that it is not the beneficial owner of the
Bonds and that it holds the Bonds solely as trustee for the Holders pursuant to
this Agreement. Interest and principal payments on the Bonds held in the trust
account will not be subject to any right, charge, security interest, lien or
claim of any kind in favor of the Trustee, the Depositor or any person claiming
through either of them.
The representations and covenants contained in the Officer's
Certificate of the Trustee delivered in connection with the issuance of the
Certificates shall be deemed to be incorporated by reference herein, as fully as
if set forth in full herein.
A reasonable time prior to the delivery of Bonds to the Trustee, the
Depositor shall furnish the Trustee with written instructions as to the name in
which the Certificates evidencing interests in such Bonds shall initially be
registered, the denominations in which such Certificates shall initially be
delivered, the persons and addresses to whom such Certificates are to be
delivered and such other information as may be requested by the Trustee in
connection with the execution and delivery of such Certificates. Each class of
Certificates shall evidence the ownership by the Holders thereof of Interest,
Principal, or Callable Principal (or portions thereof), as the case may be, on
the Bonds, less any Retained Amount, to the extent required by the terms of such
class of Certificates.
Bonds underlying Certificates which are not held by book-entry
credit at an account maintained on behalf of the Trustee at DTC shall be held by
the Trustee at its Designated Office in New York City or at such other place or
places as the Trustee shall determine.
Section 2.02. Form of Certificates. Certificates shall be issued in
registered form only and shall be typewritten or printed on safety paper. The
classes of Certificates to be issued hereunder shall be identified in the Series
Trust Agreement and shall be substantially in the forms set forth in Exhibit C
thereto, in each case with appropriate insertions, modifications and omissions,
as therein and herein so provided. Certificates shall be executed by the Trustee
by the manual signature of a duly authorized signatory of the Trustee. No
Certificate shall be entitled to any benefits under this Agreement or be valid
or obligatory for any purpose, unless it shall have been executed manually by
the Trustee by the signature of a duly authorized signatory. The Trustee shall
record in the Certificate Register each Certificate so signed and delivered as
herein provided.
The Authorized Denominations for each class of Certificates shall be
the dollar amount, and greater multiples thereof (or of such other dollar amount
specified in the Series Trust Agreement), set forth in the Series Trust
Agreement.
Certificates may be endorsed with or have incorporated in the text
thereof such legends or recitals not inconsistent with the provisions of this
Agreement as may be required by the Trustee or required to comply with any
applicable law or any regulation thereunder.
Section 2.03. Registration and Registration of Transfer and Exchange
of Certificates. The Trustee shall keep at its Designated Office in New York
City a register (the register maintained
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in such office being herein sometimes referred to as the "Certificate Register")
in which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and for the
registration of transfers or exchanges of Certificates.
Upon surrender for registration of transfer of any Certificate at
the Trustee's Designated Office in New York City, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
Certificates of the same class and series, of any Authorized Denominations and
of a like aggregate amount.
At the option of the Holder, Certificates may be exchanged for other
Certificates of the same class and series, of any Authorized Denominations and
of a like aggregate amount, upon surrender of the Certificates to be exchanged
at the Trustee's Designated Office in New York City. Whenever any Certificates
are so surrendered for exchange, the Trustee shall execute and deliver the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall evidence, to the extent indicated thereby,
Interest, Principal and/or Callable Principal (or portions thereof), as the case
may be, of Bonds held by the Trustee hereunder and shall be entitled to the same
benefits under this Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
Every Certificate presented for registration of transfer or for
exchange shall (if so required by the Trustee) be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing.
Section 2.04. Limitations on Execution and Delivery, Surrender and
Registration of Transfer and Exchange of Certificates. As a condition precedent
to the execution and delivery, surrender or registration of transfer or exchange
of any Certificate, the Trustee may require payment, by the Holder requesting
such action, of the then applicable service charge of the Trustee and of a sum
sufficient for reimbursement of any tax or other governmental charge with
respect thereto, may require the production of proof reasonably satisfactory to
it as to the Holder's residence and identity and genuineness of any signature,
may require the Holder to execute certificates and to make such representations
and assurances as the Trustee may reasonably deem necessary or proper, and may
also require compliance with such regulations, if any, as the Trustee may
reasonably establish consistent with the provisions of this Agreement.
The surrender or registration of transfer or exchange of
Certificates may be suspended if any such suspension is deemed necessary or
advisable by the Trustee at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Agreement, or for any other reason which makes such
surrender or registration of transfer or exchange impracticable.
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Section 2.05. Mutilated, Destroyed, Lost or Stolen Certificates. In
case any Certificate shall be mutilated, the Trustee in its discretion may
execute and deliver a Certificate of the same series, of like form and tenor,
and in the same denomination and bearing a number not contemporaneously
outstanding, in exchange and substitution for such mutilated Certificate. In
case any Certificate shall be destroyed, lost or stolen, the Trustee may execute
and deliver a Certificate of the same series, of like form and tenor, and in the
same denomination and bearing a number not contemporaneously outstanding, in
lieu of and in substitution for such destroyed, lost or stolen Certificate, only
upon (i) the filing by the Holder thereof with the Trustee of evidence
satisfactory to the Trustee of the destruction, loss or theft of such
Certificate and of the authenticity of such Holder's ownership thereof, and (ii)
the furnishing to the Trustee of reasonable indemnification satisfactory to it.
All expenses and charges associated with such indemnity and with the
preparation, execution and delivery of a new Certificate shall be borne by the
Holder of the Certificate mutilated, destroyed, lost or stolen.
Section 2.06. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee and any agent of the
Trustee may treat the person in whose name such Certificate is registered as the
owner of such Certificate for the purpose of receiving payment of such
Certificate and for all other purposes whatsoever, whether or not such
Certificate be overdue, and neither the Trustee nor any agent of the Trustee
shall be affected by notice to the contrary.
Section 2.07. Cancellation and Destruction of Surrendered
Certificates. All Certificates surrendered to the Trustee shall be cancelled by
the Trustee. The Trustee is authorized to destroy such Certificates so
cancelled.
Section 2.08. Book-Entry. (i) At the election of the Depositor, the
Series Trust Agreement may provide that (1) all Certificates of a series are to
be held in DTC's book-entry only system, (2) all Certificates of a series are to
be issued in definitive physical form, or (3) the Certificates (or any part
thereof) are to be issued or held in such other form as is specified in the
Series Trust Agreement.
(ii) Notwithstanding Section 4.01 hereof, when the registered Holder
of any or all of the Certificates is DTC, such Certificates shall be registered
in the name of Cede & Co., as nominee for DTC, and payment in respect of any
Interest, Principal or Callable Principal represented by any Certificate shall
be made on or after the corresponding Interest Payment Dates, in the case of the
payment of Interest, and on or after the corresponding stated maturity date, in
the case of the payment of Principal, in each case after the Trustee shall have
received the amounts due from the Issuer of the Bonds, by credit of same day
funds to the account indicated for Cede & Co. in the Certificate Register.
Payments received by the Trustee on or prior to 2:00 p.m., New York City time,
shall be credited to DTC that same day and payments received after such time
shall be credited the following Business Day. 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 2.08 (ii) , 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.
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(iii) Certificates of which Cede & Co. shall be the Holder shall be
initially issued in the form of one or more separate single Certificates for
each separate class of Certificates identified in the Series Trust Agreement to
be issued hereunder, aggregating in each case to the amount of each separate
stated maturity of the Certificates, or in such other manner as is required by
DTC. Upon initial issuance, the ownership of each such Certificate shall be
registered in the Certificate Register in the name of Cede & Co., as nominee for
DTC. The Depositor and the Trustee may treat DTC (or its nominee) as the sole
and exclusive owner of each Certificate registered in its name for the purposes
of payment of Interest, Principal and/or Callable Principal represented thereby,
giving any notice permitted or required to be given to Holders under this
Agreement, registering the transfer of such Certificate, obtaining any consent
or other action to be taken by Holders and for all other purposes whatsoever,
and neither the Depositor nor the Trustee shall be affected by any notice to the
contrary. Neither the Depositor nor the Trustee shall have any responsibility or
obligation to any Participant, any person claiming a beneficial ownership
interest in such Certificate under or through DTC or any Participant or any
other person that is not shown on the Certificate Register as being a Holder of
such Certificate, with respect to the accuracy of any records maintained by DTC
or any Participant; the payment by DTC or any Participant of any amount in
respect of Principal, Interest and/or Callable Principal represented by such
Certificate; any notice (or the timeliness thereof) that is permitted or
required to be given to Holders of such Certificate under this Agreement; or any
consent given or other action taken by DTC as the Holder of such Certificate.
Upon delivery by DTC to the Trustee of written notice to the effect that DTC has
determined to substitute a new nominee in place of Cede & Co., and subject to
the provisions of section 2.03 hereof limiting the obligations of the Trustee to
register transfers of or to exchange Certificates, the words "Cede & Co." in
this Agreement shall refer to such new nominee of DTC.
(iv) DTC may determine to discontinue providing its services with
respect to Certificates at any time by giving 90 days prior written notice to
the Depositor and the Trustee and discharging its responsibilities with respect
thereto under applicable law. Following receipt of such notice from DTC, the
Trustee shall promptly notify the Rating Agency. In connection therewith, the
Trustee and the Depositor will cooperate with DTC in taking appropriate action
after reasonable notice (a) to make available one or more separate physical
certificates evidencing the Certificates to any Participant having Certificates
credited to its DTC account or (b) to arrange for another securities depository
to maintain custody of physical certificates evidencing such Certificates. Upon
(1) the resignation of DTC from its functions as depository in accordance
herewith, provided that the Depositor is unable to arrange for another
securities depository to act as successor to DTC, (2) the election by the
Depositor to terminate book-entry registration of the Certificates (which
election shall only be made if the Depositor determines that such election will
not adversely affect the Holders), (3) the delivery of written notice to the
Trustee through DTC, from Holders of Outstanding Certificates representing at
least a majority of the Voting Rights, that such Holders elect to terminate
book-entry registration of the Certificates, (4) a default in payment of any
Interest, Principal or Callable Principal due on the Bonds, which default
remains uncured for 10 days, and the election by the Trustee to terminate
book-entry registration of the Certificates, or (5) the occurrence of an
Available Information Event (provided that the financial statements and other
information about the Issuer of the Bonds referred to in Section 5.15 hereof are
not thereafter available to the Trust), the Depositor shall
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notify DTC and, except in the case of item (4) above, the Trustee of such event,
whereupon DTC is required under the Letter of Representations to notify the
Participants of the availability through DTC of physical certificates evidencing
the Certificates. In such event, DTC is required under the Letter of
Representations to promptly deliver to the Trustee the physical certificates
evidencing such Certificates, whereupon the Trustee at the expense of the
Depositor shall deliver physical certificates evidencing the Certificates to any
Participant having Certificates credited to its DTC Account and the provisions
of this Agreement shall then apply irrespective of this Section 2.08.
(v) 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 give DTC 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 6.01
hereof.
(vi) In the event that Bonds are redeemed and Certificates are
correspondingly redeemed and the Certificates are registered in the name of Cede
& Co., as nominee for DTC, the Certificates shall be redeemed and terminated
without action by the Holder thereof, all as provided in the Letter of
Representations.
Section 2.09. Action or Consent of Holders. The Voting Rights on the
Certificates will be apportioned by the Trustee among the Holders, as of the
applicable record date of the underlying Bonds, of the Outstanding Certificates
pro rata by face amount. In the event of any action or consent requiring the
vote of the owners of any Bonds at any time when the Certificates are held in
the DTC book-entry form, the Trustee, upon receipt of the Bond proxy, will
notify DTC (in its capacity as the Holder of the Certificates) of such action.
Under current procedures it is expected that DTC will notify the Participants
who will notify the Beneficial Owners of the Certificates of such event.
Thereafter, the Trustee shall vote solely in accordance with such proxies and
shall apportion its voting powers on the basis of the votes cast by the Holders,
based upon the direction the Holders have received from the Beneficial Owners.
If the Certificates are not then held by DTC or any other depository, the
Trustee, upon receipt of the Bond proxy, will notify the Holders directly of
such action and shall vote in the same manner as noted above. The Trustee shall
cast its vote in connection with the foregoing vote on the Bonds in proportion
to the Voting Rights on the Certificates held by the Holders or groups of
Holders directing it, notwithstanding that such Holder or groups of Holders may
give contrary instructions or that such instructions may conflict.
The Trustee shall at no time vote for or consent to any action (i)
to the extent that such vote or consent could reasonably be expected to alter
the status of the Trust as a grantor trust for federal income tax purposes, (ii)
prior to the filing of a bankruptcy petition by or against the Issuer of the
Bonds or the commencement of any other similar proceeding, if such action would
alter the timing or amount of any payment on such Bonds or (iii) prior to the
filing of a bankruptcy petition by or against the Issuer of Bonds, or the
commencement of any other similar proceeding, if such action
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would result in the exchange or substitution of any of such outstanding Bonds
pursuant to a plan for the refunding or refinancing of such Bonds. In connection
with any vote, the Trustee may request, as a condition precedent to casting any
vote, that it be provided with an opinion of Counsel that the consent or action
will not alter the status of the Trust as a grantor trust for federal income tax
purposes, which Opinion of Counsel shall be an expense of the Holders voting in
favor of the proposed action. The Trustee in requesting such opinion shall
inform the Holders of the potential expense of the Opinion of Counsel.
In no event shall the Depositor be allowed or entitled (other than
in its capacity as a Participant for a Beneficial Owner) to vote, directly or
indirectly, any Certificates.
The Trustee shall also transmit to DTC or, if the Certificates are
not then held by DTC or any other depository, the Holders as provided in Section
9.04 hereof, any communications from the Issuer or from a third party (other
than the Issuer) to the Trustee as bondholder, upon receipt from such Issuer or
third party, respectively, of assurances that the Trustee's reasonable expenses
will be reimbursed by such Issuer or third party. If the Trustee does not
receive such assurances, then the Trustee, at the sole discretion of the
Depositor and at the expense of the Trust, will transmit or cause to be
transmitted any such communications to DTC or, if the Certificates are not then
held by DTC or any other depository, the Holders as provided in Section 9.04
hereof.
Section 2.10. Transfer of Certificates Held by DTC to Successor
Depository. (a) If the Depositor elects to direct that the Trustee deliver
Certificates with respect to a particular Series Trust Agreement in the name of
and to DTC, as the depository hereunder, or its nominee, said Certificates may
not thereafter be transferred except:
(i) to any successor of DTC or its nominee;
(ii) to any substitute depository not objected to by the Trustee,
upon (1) the resignation of DTC or its successor (or any substitute
depository or its successor) from its functions as depository or (2) a
determination by the Depositor that it is in the best interest of the
Depositor (and will not adversely affect the Holders) or the Holders to
remove DTC or its successor (or any substitute depository or its
successor); or
(iii) as provided in Section 2.08(iv) hereof;
provided, that any successor of DTC or substitute depository referred to above
shall be a clearing agency registered with the Commission and shall otherwise be
qualified under any applicable laws to provide the services proposed to be
provided by it.
Section 2.11. Temporary Certificates. The Certificates may be
initially delivered in temporary form exchangeable for definitive Certificates
when ready for delivery, which temporary Certificates shall be printed,
lithographed or typewritten, shall be of such denominations as may be determined
by the Trustee, shall be in fully registered form and shall contain such
reference to any of
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the provisions hereof as may be appropriate. Every temporary Certificate shall
be executed and delivered by the Trustee upon the same conditions and terms and
in substantially the same manner as definitive certificates. If temporary
Certificates are issued, the Trustee will execute and deliver definitive
Certificates without delay, and in that case upon demand of the Holder of any
temporary Certificates such temporary Certificates shall be exchanged without
cost to such Holder for definitive Certificates at the office of the Trustee
upon surrender of such temporary Certificates, and until so exchanged such
temporary Certificates shall be entitled to the same benefit, protection and
security hereunder as the definitive Certificates executed and delivered
hereunder. All temporary Certificates surrendered pursuant to the provisions of
this Section 2.11 shall be canceled by the Trustee, shall not be redelivered and
shall be disposed of pursuant to Section 2.07.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF
CERTIFICATES; DEPOSITOR'S WARRANTIES
Section 3.01. Filing Proofs, Certificates and Other Information. Any
Holder presenting Certificates for surrender or registration of transfer or
exchange may be required to file such proof of residence, or other matters or
information, to execute such certificates and to make such representations and
warranties as the Trustee may reasonably deem necessary or proper. The Trustee
may withhold the delivery or delay the surrender of or registration of transfer
or exchange of any Certificate until such proof or other information is filed,
such certificates are executed or such representations and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Trustee, including any tax or charge required to be withheld from any payment
made to or by the Trustee under the provisions of any applicable law, with
respect to any Certificate or with respect to the Interest, Principal or
Callable Principal (or portions thereof) evidenced by any Certificate, such tax
or governmental charge shall be payable by the Holder of such Certificate and
may be so withheld by the Trustee. The surrender of or registration of transfer
or exchange of any Certificate may be refused until such payment is made.
Section 3.03. Depositor's Warranties. In the case of each delivery
of Bonds to the Trustee, the Depositor shall be deemed thereby to represent and
warrant to the Trustee that the Depositor is duly authorized to so deliver such
Bonds and that immediately prior to the delivery thereof the Depositor owned
such Bonds free and clear of any lien, pledge, encumbrance or other security
interest. The Depositor shall further be deemed by such delivery to represent
and warrant to the Trustee that the prospectus and prospectus supplement
prepared by the Depositor with respect to the Certificates makes such disclosure
with respect to the Bonds as is required by applicable federal and state
securities laws. Such representations and warranties shall survive the delivery
of such Bonds and the Certificates in respect thereof.
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ARTICLE IV
PAYMENT OF INTEREST AND PRINCIPAL; CUSTODY
OF PROCEEDS OF INTEREST AND PRINCIPAL PAYMENTS
Section 4.01. Payment of Interest; Payment of Principal; Mandatory
Exchange of Callable Principal Certificates and Callable Stripped Bond
Certificates. In the case of Bonds held by the Trustee in certificate form, the
Trustee shall present the Bonds to the Issuer, Indenture Trustee or paying agent
therefor, as applicable, for payment of Interest on the Interest Payment Dates
related thereto and all Principal at stated maturity or upon the Redemption Date
therefor, to the extent required under the terms of such Bonds to obtain payment
thereon.
With respect to any Coupon Certificate, on or after the Interest
Payment Date of the Interest evidenced thereby, if the Issuer shall have paid in
full and the Trustee shall have received the interest due on such Interest
Payment Date on the underlying Bonds, the Trustee shall pay to the Holder
thereof as of the applicable record date of the underlying Bonds, in lawful
money of the United States of America, by check sent no later than one business
day after receipt of funds by the Trustee by first-class mail to the address of
the Holder set forth in the certificate Register, the entire amount of such
Interest evidenced thereby, less any taxes or governmental charges required to
be withheld from such payment by the Trustee.
With respect to any Principal Certificate, on or after the stated
maturity date of the Principal evidenced thereby, if the Issuer shall have paid
in full and the Trustee shall have received the amount of such Principal upon
maturity of the underlying Bond or Bonds, the Trustee shall pay to the Holder
thereof as of the applicable record date of the underlying Bonds, in lawful
money of the United States of America, by check sent no later than one business
day after receipt of funds by the Trustee by first-class mail to the address of
the Holder set forth in the Certificate Register, the entire amount of such
Principal evidenced thereby, less any taxes or governmental charges required to
be withheld from such payment by the Trustee.
With respect to any Callable Principal Certificate, on or after the
stated maturity date, the redemption date or the Interest Payment Date, as
applicable, of the Callable Principal evidenced thereby, if the Issuer shall
have paid and the Trustee shall have received all or any part of the Callable
Principal due upon maturity or earlier redemption of the underlying Bonds or on
any Interest Payment Date, the Trustee shall pay to the Holder thereof as of the
applicable record date of the underlying Bonds, in lawful money of the United
States of America, by check sent no later than one business day after receipt of
funds by the Trustee by first-class mail to the address of the Holder set forth
in the Certificate Register, the entire amount of such Callable Principal so
paid and received or, in the case of a Callable Principal Certificate redeemed
in part, the amount of such Principal so redeemed; in each case less any taxes
or governmental charges required to be withheld from such payment by the
Trustee.
Any Callable Principal Certificate which is not redeemed on the
First Call Date shall be terminated and deemed involuntarily surrendered by the
Holder thereof in exchange for a principal
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amount of the Bonds underlying such Callable Principal Certificate equal to the
face amount of such Callable Principal Certificate, whether or not such Holder
has requested such exchange. No action by such Holder will be required to effect
such termination, which will be carried out by the Trustee pursuant to the terms
of this Agreement.
With respect to any Stripped Coupon Certificate, on or after the
Interest Payment Date of the Interest evidenced thereby, if the Issuer shall
have paid in full and the Trustee shall have received the interest due on such
Interest Payment Date on the underlying Bonds, the Trustee shall pay to the
Holder thereof as of the applicable record date of the underlying Bonds, in
lawful money of the United States of America, by check sent no later than one
Business Day after receipt of funds by the Trustee by first-class mail to the
address of the Holder set forth in the Certificate Register, the entire amount
of such Interest evidenced thereby, less any taxes or governmental charges
required to be withheld from such payment by the Trustee.
With respect to any Stripped Bond Certificate, on or after the
Interest Payment Date or stated maturity date, as applicable, of the Interest or
Principal evidenced thereby, if the Issuer shall have paid and the Trustee shall
have received the Interest evidenced thereby or all or any part of the principal
amount of the Principal evidenced thereby due upon maturity of the underlying
Bonds, the Trustee shall pay to the Holder thereof as of the applicable record
date of the underlying Bonds, in lawful money of the United States of America,
by check sent no later than one Business Day after receipt of funds by the
Trustee by first-class mail to the address of the Holder set forth in the
Certificate Register, the entire amount of such Interest and/or Principal; in
each case less any taxes or governmental charges required to be withheld from
such payment by the Trustee.
With respect to any Callable Stripped Bond Certificate, on or after
the stated maturity date, the redemption date or the Interest Payment Date, as
applicable, of the Callable Principal evidenced thereby, if the Issuer shall
have paid and the Trustee shall have received the Interest or all or any part of
the Callable Principal evidenced thereby due upon maturity or earlier redemption
of the underlying Bonds or on any Interest Payment Date, the Trustee shall pay
to the Holder thereof as of the applicable record date of the underlying Bonds,
in lawful money of the United States of America, by check sent no later than one
Business Day after receipt of funds by the Trustee by first-class mail to the
address of the Holder set forth in the Certificate Register, the entire amount
of such Holder's allocable portion of the Callable Principal so received or, in
the case of a Callable Stripped Bond Certificate redeemed in part, the amount so
redeemed; in each case less any taxes or governmental charges required to be
withheld from such payment by the Trustee.
Any Callable Stripped Bond Certificate which is not redeemed on the
First Call Date shall be terminated and deemed involuntarily surrendered by the
Holder thereof in exchange for a principal amount of the Bonds underlying such
Callable Stripped Bond Certificate equal to the face amount of such Callable
Stripped Bond Certificate, whether or not such Holder has requested such
exchange. No action by such Holder will be required to effect such termination,
which will be carried out by the Trustee pursuant to the terms of this
Agreement.
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With respect to any Pooled Certificate, on or after the stated
maturity date, the redemption date or the Interest Payment Date, as applicable,
of the Interest, Principal or Callable Principal evidenced thereby, if the
Issuer shall have paid and the Trustee shall have received Interest on any of
the Bonds in the Trust evidenced thereby or all or any part of the Principal or
Callable Principal on any of the Bonds in the Trust evidenced thereby due upon
maturity or earlier redemption of such Bonds or on any Interest Payment Date,
the Trustee shall pay to the Holder thereof as of the applicable record date of
the underlying Bonds, in lawful money of the United States of America, by check
sent no later than one Business Day after receipt of funds by the Trustee by
first-class mail to the address of the Holder set forth in the Certificate
Register, the entire amount of such Interest, Principal or Callable Principal so
paid and received, less any Retained Amount, or, in the case of a Certificate
redeemed in part, the amount of such Callable Principal so redeemed; in each
case less any taxes or governmental charges required to be withheld from such
payment by the Trustee.
With respect to any payment of Interest, Principal or Callable
Principal, as applicable, that constitutes a Retained Amount, the Trustee shall
remit such Retained Amount to the Depositor, in immediately available funds,
within one Business Day of receipt by the Trustee from the Issuer.
When making any payment to a Holder of a Certificate or, with respect
to any Retained Amount to the Depositor, under this Agreement, the Trustee shall
round down such payment to the nearest whole cent.
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 4.01, 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 4.02. Segregation of Moneys Received from Issuers in Respect
of Bonds. All moneys received from the Issuers of Bonds or otherwise by the
Trustee in respect of Bonds evidenced by Certificates issued hereunder shall be
held by it without interest in a segregated trust account (which account shall
contain two subaccounts, one for interest payments on the Bonds and the second
for principal and redemption premium payments on the Bonds) for each issue of
Bonds held in trust until required to be disbursed in accordance with the
provisions of this Agreement or as otherwise required by law and such moneys
will be segregated by separate recordation on the books and records of the
Trustee. Payments whose character as principal, redemption premium or interest
on the Bonds cannot be determined shall be deposited in the subaccount for
principal until distributed pursuant to Section 5.03(b) hereof.
Section 4.03. Paying Agent. Each Paying Agent other than the Trustee
shall execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee (and if the Trustee acts as Paying Agent, it
hereby so agrees), that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Bonds in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to
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such Persons or otherwise disposed of as herein provided and pay such sums
to such Persons as herein provided;
(ii) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Bonds) of which it has actual knowledge in the
making of any payment required to be made with respect to the Certificates.
ARTICLE V
THE TRUSTEE AND THE DEPOSITOR
Section 5.01. Eligibility of Trustee; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and it shall have a long
term unsecured debt rating of [A-2] or better by ▇▇▇▇▇'▇ Investors Service, Inc.
and [A] by Standard & Poor's Ratings Group or the equivalent rating thereof by
the Rating Agency (if other than ▇▇▇▇▇'▇ Investors Service, Inc., or Standard &
Poor's Ratings Group). The Trustee shall comply with TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any series trust deposit agreements under which other
securities are outstanding evidencing ownership interests in bonds of the Issuer
of the Bonds if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 5.02. Trustee's Duties on Default; No Liability of the Trustee
or the Depositor on the Bonds. If an event of default on the Bonds has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Agreement and use the same degree of care and skill in their exercise as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a holder of the Bonds in which the Certificates
evidence an interest. However, neither the Trustee (except as specifically
provided in Section 5.03 or elsewhere 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 Bonds or Certificates.
The sole obligor with respect to any Bond is the Issuer thereof or any
other entity obligated to make payments to or behalf of the Issuer thereof (or
its trustee or other applicable fiduciary) with respect to such Bond. Neither
the Trustee nor the Depositor shall have any obligation on or with respect to
the Bonds except as provided in this Article V with respect to the Trustee; and
their respective obligations with respect to Certificates shall be solely as set
forth in this Agreement.
If there is an event of default (as defined in the indenture or other
document pursuant to which the Bonds were issued) with respect to any Bond and
such default is known to the Trustee, the Trustee shall promptly give notice to
DTC or, if the Certificates are not then held by DTC or any
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other depository, directly to Holders thereof as provided in Section 9.04 hereof
(and in the manner and to the extent provided in TIA Section 313(c)) within 90
days after such event of default occurs. Such notice shall set forth (a) the
identity of the issue of Bonds, (b) the date and nature of such default, (c) the
f ace amount of the Interest, Principal or Callable Principal to which such
default relates, (d) the identifying numbers of the class of Certificates, or
any combination, as the case may be, evidencing the Interest, Principal or
Callable Principal (or portions thereof) described above in clause (c), and (e)
any other information which the Trustee may deem appropriate. Except in the case
of a default in payment of Principal or Interest (including payments pursuant to
a redemption of any Certificate) , the Trustee may withhold the notice to
Holders if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
Holders of Certificates shall have no recourse against the Depositor
or the Trustee for payment defaults on the Bonds.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee; Distribution of Amounts Received in Respect of Defaulted Bonds.
(a) If:
(i) default is made in the payment of any installment of interest on
any Bond when the same becomes due and payable, and such default continues
unremedied for the period specified in the indenture (or, if no such period
is specified, five days) after receipt by the Issuer of notice thereof from
the Trustee or receipt by the 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 Bond when the same becomes due and
payable, and such default continues unremedied for the period specified in
the indenture (or, if no such period is specified, thirty (30) days) after
receipt by the Issuer of notice thereof from the Trustee or receipt by the
Issuer and the Trustee of notice thereof from the Holders of Outstanding
Certificates representing at least 25% of the Voting Rights;
and the 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 Bonds for principal and interest, with interest upon the overdue
principal, at the rate borne by the Bonds 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 Issuer or other obligor upon the Bonds
and
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collect in the manner provided by law out of the property of the Issuer or other
obligor upon the Bonds, wherever situated, the moneys adjudged or decreed to be
payable, unless otherwise directed by Holders of Outstanding Certificates
representing not less than a majority of the voting Rights. 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 Bonds (other than a scheduled interest payment with respect to an
Interest Payment Date, the scheduled payment of principal on or with respect to
the stated maturity date of the Bonds, or the payment of principal and any
redemption premium on or with respect to the earlier redemption of the Bonds) as
a result of a payment default on the Bonds, or actual notice that such moneys or
other property will be paid to the Trustee, the Trustee shall promptly give
notice (as provided in Section 9.04 hereof) to DTC or, if the Certificates are
not then held by DTC or any other depository, 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, pro rata by face 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.
Section 5.04. Control by Holders. The Holders of Outstanding
Certificates representing a majority of the Voting Rights 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
with respect to any Issuer Payment Default; provided, however, that:
(i) such direction shall not be in conflict with any rule of law or
with this Agreement;
(ii) subject to Sections 2.09 and 5.11, 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 5.05. Waiver of Past Defaults.
The Holders of Outstanding Certificates representing not less than a
majority of the Voting Rights may waive any past default and its consequences
except (i) an Issuer Payment Default 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
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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.
Section 5.06. Maintenance of Offices and Agencies by the Trustee.
Until termination of this Agreement in accordance with its terms, the Trustee
shall maintain (a) facilities in the City of New York for the execution and
delivery, payment, surrender and registration of transfer and exchange of
Certificates, all in accordance with the provisions of this Agreement, and (b)
such other agents, if any, as the Trustee and the Depositor may agree from time
to time.
Section 5.07. Prevention of or Delay in Performance by the Trustee or
the Depositor. Neither the Trustee nor the Depositor shall incur any liability
to any Holder of any Certificate, if by reason of any provision of any present
or future law, or regulation thereunder, of any governmental authority, or by
any reason of any act of God or war or other circumstance beyond the control of
the relevant party, the Trustee or the Depositor shall be prevented or forbidden
from doing or performing any act or thing which the terms of this Agreement
provide shall be done or performed; and neither the Trustee nor the Depositor
shall incur any liability to any Holder of a Certificate by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Agreement.
Section 5.08. Liability of the Trustee and the Depositor. Neither the
Trustee nor the Depositor assumes any obligation or shall be subject to any
liability under this Agreement to Holders of Certificates, other than liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, in the performance of such duties as are specifically set
forth in this Agreement or the TIA; further provided, that:
(i) the Trustee shall not be liable except for the performance of such
duties as are specifically set out in this Agreement;
(ii) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in the
absence of bad faith on the part of the Trustee, upon certificates or
opinions conforming to the requirements of this Agreement (but the Trustee
shall examine the evidence furnished to it pursuant to TIA Section 314 to
determine whether or not such evidence conforms to the requirements of this
Agreement);
(iii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iv) to the extent that the Holders of Outstanding Certificates
representing not less than a majority of the Voting Rights direct the
Trustee with respect to the time, method and place of conducting any
Proceeding for any remedy available to the Trustee with respect to an
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Issuer Payment Default, the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with such
direction.
Neither DTC nor any registrar with which Bonds are maintained as
book-entry credits shall be deemed agents of the Trustee. The Trustee may own
and deal (i) in bonds of the same issue and maturity as the Bonds and (ii) in
Certificates.
The Trustee shall be under no liability to any party hereto, or to any
Holder, by reason of any failure on the part of the Depositor or any maker,
guarantor, endorser or other signatory of any document or instrument, including
any Bond, or any other person to perform such person's obligations under any
such document or instrument.
The Trustee shall not be responsible for the sufficiency or accuracy,
the form or the execution, validity, value or genuineness of any document or
property received or held by it hereunder, including without limitation any
Bonds, or the authority of the Depositor in executing this Agreement.
ANY ACTION OR PROCEEDING ALLEGING ANY BREACH BY THE TRUSTEE OF ITS
DUTIES UNDER THIS AGREEMENT SHALL BE PROSECUTED ONLY IN A STATE OR FEDERAL COURT
LOCATED IN THE STATE OF NEW YORK, COUNTY OF NEW YORK. THE TRUSTEE SHALL HAVE THE
RIGHT AT ANY TIME TO SEEK INSTRUCTIONS FROM ANY COURT OF COMPETENT JURISDICTION.
The Trustee shall be deemed to have exercised reasonable care in the
custody and preservation of the Bonds in its possession if the Bonds are held in
the manner specified in the Officer's Certificate of the Trustee and are
accorded treatment substantially equal to that which a prudent person accords
its own property.
The Trustee shall at all times maintain a fidelity bond in reasonable
form and amount to protect against loss due to dishonest or fraudulent action by
its employees in connection with its obligations hereunder.
Section 5.09. Obligation of the Depositor. (a) The Depositor shall:
(i) on behalf of the Trust, prepare and file with the Commission,
following the execution thereof by the Trustee if so requested by the
Depositor, and file with the Trustee, within 15 days after the Depositor on
behalf of the Trust is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) , if
any, which the Depositor on behalf of the Trust may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
(collectively, "reports") with respect to the Trust. A copy of each such
report shall be provided to the Trustee at least 10 business days prior to
the date required for filing. The names of such
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reports and the dates on which they are required to be filed with the
Commission shall be specified to the Trustee by the Depositor within 180
days after the Closing Date;
(ii) file with 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;
(iii) supply to the Trustee (and the Trustee shall 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 pursuant to clauses (i) and
(ii) of this Section 5.09(a), if any, as may be required by rules and
regulations prescribed from time to time by the Commission; and
(iv) after an Available Information Event, on behalf of the Trust,
prepare and file with the Commission, following the execution thereof by
the Trustee if so requested by the Depositor, and file with the Trustee,
within 15 days after the Depositor on behalf of the Trust is required to
file the same with the Commission, reports of the kind referred to in
clause (i) of this Section 5.09(a) with respect to the Issuer of the Bonds,
to the extent such reports are then available to the Depositor, for as long
as the Depositor on behalf of the Trust is required to file such reports
under the Exchange Act. Such reports shall include quarterly and annual
financial statements and other information of the type required to be filed
on Form 8-K under the Exchange Act with respect to the Issuer of the Bonds.
A copy of each such report shall be provided to the Trustee at least 10
business days prior to the date required for filing. If such reports and
information are not available to the Depositor at a time when such reports
and information are required to be filed with the Commission by the
Depositor on behalf of the Trust, the Depositor shall cause the removal of
the Certificates from the DTC book-entry system as set forth in Section
2.08(iv)(5) of this Agreement and shall notify the Issuer that the Holders
of Certificates constitute record holders of the Bonds for purposes of the
Exchange Act.
(a) The Depositor shall deliver to the Trustee, not less often than
annually, an Officer's Certificate signed by an Authorized Officer who is the
principal executive officer, principal financial officer or principal accounting
officer of the Depositor, dated as of the date set forth in the Series Trust
Agreement for such year, stating that:
(i) a review of the activities of the Depositor during such fiscal
year and of performance under this Agreement has been made under such
Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on such
review, the Depositor has fulfilled all of its obligations under this
Agreement throughout such year, or, if
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there has been a default in the fulfillment of any such obligation,
specifying each such default known to such Authorized Officer and the
nature and status thereof. 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.
(b) If and only if the Series Trust Agreement provides for the pledge
of the Bonds 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.
(c) If and only if the Series Trust Agreement provides for the pledge
of the Bonds 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 opinion of such counsel, be required
to maintain the lien and security interest of this Agreement until such date in
the following calendar year.
(d) If and only if the Series Trust Agreement provides for the pledge
of the Bonds 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
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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 is
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 principal amount of the Outstanding Certificates.
(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.
(e) 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
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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 investigations 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 5.10. 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).
Section 5.11. Resignation and Removal of the Trustee; Appointment of
Successor Trustee. The Trustee may at any time resign as Trustee hereunder by
written notice of its election so to do, delivered to the Depositor and the
Rating Agency as provided in Section 9.04 hereof, and such resignation shall
take effect upon the appointment of a successor Trustee and its acceptance of
such appointment as hereinafter provided. The Depositor may at any time
(including such time as the Trustee fails to comply with Section 5.01) remove
the Trustee as Trustee hereunder by written notice of its election to do so,
delivered to the Trustee and the Rating Agency as provided in Section 9.04
hereof, and such removal shall take effect upon the appointment of a successor
Trustee and its acceptance of such appointment as provided in the third
succeeding paragraph; provided, however, that in the event of such removal, the
Depositor shall negotiate in good faith with the Trustee in order to agree
regarding payment of the termination costs of the Trustee resulting from such
removal. Upon the designation of a successor Trustee following either
resignation by or removal of the Trustee, the Trustee shall deliver to the
successor Trustee all records relating to the Certificates in the form and
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manner then maintained by the Trustee, which shall include a hard copy thereof
upon request of the successor Trustee.
If at any time the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or the Trustee shall fail to comply with Section 5.
01, then any Holder of a Certificate with respect to a particular issue of Bonds
which has been such a Holder for at least six (6) months or the Holders of
Outstanding Certificates representing ten percent (10%) of the Voting Rights for
the Outstanding Certificates of a series which is outstanding at such time may,
on behalf of himself, herself or themselves and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to the Bonds evidenced by such Certificates and the appointment of a
successor Trustee.
In the event the Trustee resigns or is removed, the Trustee shall
reimburse the Depositor for any fees or charges previously paid to the Trustee
in respect of duties not yet performed under this Agreement which remain to be
performed by a successor Trustee and the Trustee shall promptly notify the
Rating Agency of its resignation or removal and any successor Trustee shall
promptly notify the Rating Agency of its appointment as provided in Section 9.04
hereof.
In case at any time the Trustee acting hereunder notifies the
Depositor that it elects to resign or the Depositor notifies the Trustee that it
elects to remove the Trustee as Trustee, the Depositor shall, within ninety (90)
days after the delivery of the notice of resignation or removal, appoint a
successor Trustee, which shall be a bank with trust powers or a trust company
having its principal office in the United States of America and having a
combined capital and surplus of at least $50,000,000 and which is rated at least
investment grade by the Rating Agency. If no successor Trustee has been
appointed as successor Trustee within ninety (90) days after the Trustee has
given written notice of its election to resign or the Depositor has given
written notice to the Trustee of its election to remove the Trustee, as the case
may be, the Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee. Every successor Trustee shall execute and
deliver to its predecessor and to the Depositor an instrument in writing
accepting its appointment hereunder, and thereupon such successor Trustee,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Trustee under this Agreement, and such predecessor, upon payment of all sums
due it and on the written request of the Depositor, shall execute and deliver an
instrument transferring to such successor all rights, obligations and powers of
such predecessor hereunder, and shall duly assign, transfer and deliver all
right, title and interest in the Bonds and parts thereof to such successor. Any
successor Trustee shall promptly give notice of its appointment to the Holders
of Certificates for which it is successor Trustee as provided in Section 9.04
hereof.
Any corporation into or with which the Trustee may be merged,
consolidated or converted shall be the successor of such Trustee without the
execution or filing of any document or any further act.
▇-▇▇
▇▇
▇▇▇▇▇▇▇ 5.12. Indemnification by the Depositor. The Depositor agrees
to indemnify the Trustee and any of its agents, officers, directors or employees
for, and to hold them harmless against, any loss, liability or expense arising,
directly or indirectly, out of, relating to, or in connection with the
acceptance, administration or performance of their duties, or the duties of the
Trustee, as well as the costs and expenses of defending themselves against any
action, suit, or other proceeding involving any claim or liability arising,
directly or indirectly, out of, relating to or in connection with, this
Agreement or the exercise or performance of any of their powers or duties
hereunder, other than any loss, liability or expense arising out of (i)
negligence, willful misconduct or bad faith on the part of the Trustee or any of
its agents, officers, directors or employees, or (ii) any charges, fees or
reimbursements that are expressly required by this Agreement to be paid by the
Holders or for which the Holders are required or may elect to provide security
or indemnity to the Trustee. Failure of the Depositor to fulfill its obligations
hereunder shall not relieve the Trustee from fulfilling its duties under this
Agreement.
Any person that proposes to assert the right to be indemnified under
this Section 5.12 (any such person, an "Indemnified Party") shall, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim is to be made against the Depositor under this Section
5.12, notify the Depositor of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify the Depositor will not
relieve the Depositor from any liability that it may have to such Indemnified
Party under the foregoing provisions of this Section 5.12 unless, and only to
the extent that, such omission results in the forfeiture of rights or defenses
by the Depositor. If any such action is brought against an Indemnified Party and
it notifies the Depositor of its commencement, the Depositor will be entitled to
participate in and, to the extent that it elects by delivering written notice to
the Indemnified Party promptly after receiving notice of the commencement of the
action from the Indemnified Party, to assume the defense of the action, with
counsel satisfactory to the Indemnified Party, and after notice from the
Depositor to the Indemnified Party of its election to assume the defense, the
Depositor will not be liable to the Indemnified Party for any legal or other
expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the Indemnified Party in connection with
the defense. The Indemnified Party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of the Indemnified Party unless (1) the employment of
counsel by the Indemnified Party has been authorized in writing by the
Depositor, (2) the Indemnified Party has reasonably concluded (based on advice
of counsel) that there may be legal defenses available to it or other
Indemnified Parties that are different from or in addition to those available to
the Depositor, (3) a conflict or potential conflict exists (based on advice of
counsel to the Indemnified Party) between the Indemnified Party and the
Depositor (in which case the Depositor will not have the right to direct the
defense of such action on behalf of the Indemnified Party), or (4) the Depositor
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the Depositor. It is understood that the
Depositor shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time for all persons entitled to indemnification
hereunder. All
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such fees, disbursements and other charges will be reimbursed by the Depositor
promptly as they are incurred. The Depositor will not be liable for any
settlement of any action or claim effected without its written consent (which
consent will not be unreasonably withheld). The Depositor shall not, without the
prior written consent of each Indemnified Party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 5.12 (whether or
not any Indemnified Party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each Indemnified
Party from all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 5.12, if at any
time an Indemnified Party shall have requested the Depositor to reimburse the
Indemnified Party for fees and expenses of counsel, the Depositor agrees that it
shall be liable for any settlement effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by the Depositor
of the aforesaid request, (ii) the Depositor shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being entered
into, and (iii) the Depositor shall not have reimbursed the Indemnified Party in
accordance with such request prior to the date of such settlement.
The term "liability," as used in this Section 5.12, shall include any
losses, claims, damages, expenses (including without limitation the Trustee's
costs and expenses in defending itself against any losses, claims or
investigations of any nature whatsoever to the extent the Trustee is not
reimbursed as contemplated in this Section 5.12) or other liabilities, joint or
several, arising for any reason (including without limitation violation of
applicable laws or trademarks or service marks).
The obligations of the Depositor under this Section 5.12 (i) shall be
in addition to any liability which the Depositor may otherwise have, (ii) shall
extend, upon the same terms and conditions, to each officer and director of the
Trustee and to each Person, if any, who controls the Trustee within the meaning
of the Securities Exchange Act of 1934, as amended and (iii) shall survive the
termination of this Agreement and the resignation or removal of the Trustee.
Section 5.13. Undertaking for Costs. 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 5.13 shall not apply to:
(a) any Proceeding instituted by the Trustee;
(b) 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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(c) any Proceeding instituted by any Holder for the enforcement of the
payment of Principal 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 5.14. Charges and Expenses. Except as otherwise provided in
this Agreement, (i) no current or future charges, fees and expenses of the
Trustee shall be payable by or withheld from any person other than the
Depositor, except for any taxes and other governmental charges, and (ii) in full
payment and satisfaction of all other charges and expenses of the Trustee
(including, in each case, fees and expenses of counsel) incidental to the
performance of its obligations hereunder, the Depositor shall pay the Trustee an
amount determined in accordance with a separate agreement between it and the
Trustee. The Trustee shall not be released from any of its duties hereunder as a
result of the failure of the Depositor to pay such amount.
Section 5.15. Trustee Reports. So long as the Certificates are held in
DTC's book-entry only system, annual unaudited reports setting forth the amounts
of payments received on the Bonds and whether such amounts are principal or
interest will be prepared by the Trustee and sent to DTC. To the extent the
Depositor fails to provide the Trustee with a copy of any report referred to in
Section 5.09(a) (i) or (iv) herein prior to the 10th business day preceding the
applicable filing date therefor as required by such provisions, the Trustee
shall request the Depositor to prepare and file such report and, if the
Depositor fails to do so, shall cause such report to be prepared and filed and
the Depositor shall reimburse the Trustee for its reasonable expenses incurred
in connection therewith. Any such expenses not reimbursed by the Depositor shall
be borne by the Holders.
ARTICLE VI
HOLDERS' LISTS AND REPORTS
Section 6.01. 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 Interest Payment Date or Redemption 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 Bonds; provided, however, that so long as the Trustee
maintains the Certificate Register, no such list shall be required to be
furnished.
Section 6.02. 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 6.01 and
the names and addresses of Holders of Certificates received
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by the Trustee in its capacity as Certificate registrar. The Trustee may destroy
any list furnished to it as provided in such Section 6.01 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 6.03. 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 6.03 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 VII
AMENDMENT AND TERMINATION
Section 7.01. Amendment. The form of the Certificates and any
provisions of this Agreement may at any time and from time to time be amended by
agreement between the Depositor and the Trustee in any respect which they may
deem necessary or desirable, provided that in no event shall any amendment defer
or alter the maturity of a Certificate, or in other manner adversely affect the
rights to payment of a Holder of a Certificate or otherwise materially prejudice
any substantial existing right of the Holders of the Certificates; and provided
further that at the time of any amendment the Trustee shall be provided evidence
that the rating on the Certificates by the Rating Agency will not be lowered or
withdrawn as a result of the amendment. Every Holder of a Certificate at the
time any such amendment so becomes effective shall be deemed to be continuing to
hold such Certificate, to consent and agree to such amendment and to be bound by
this Agreement as amended thereby. Prior to entering into any amendment to the
form of the Certificates or this Agreement, the Trustee shall be entitled to
receive an Opinion of Counsel to the effect that such amendments are authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendments have been satisfied. The costs of
providing such Opinion of Counsel shall be borne by the Holders requesting that
the Trustee execute and deliver such amendment. The Trustee shall notify the
Holders of the estimated expense of any such Opinion of Counsel.
Section 7.02. Termination. This Agreement shall terminate one year
following the payment upon maturity (or any earlier redemption) by the
respective Issuers of the entire principal amount (and any redemption premium)
of the Bonds or, in the event of a default on the Bonds, one
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year following receipt by the Holders of all amounts to which the Holders are
entitled pursuant to Section 5.03(b) hereof. If any Certificates shall remain
outstanding after the date of termination of this Agreement, the Trustee shall
not perform any further acts under this Agreement, except that the Trustee shall
hold the proceeds of any payment, without liability for interest, for the pro
rata benefit of the Holders of Certificates which have not theretofore been
surrendered for payment unless otherwise required by applicable law. Upon the
termination of this Agreement, the Depositor shall be discharged from all
obligations under this Agreement except for its obligations to the Trustee under
Sections 5.14 and 5.12 hereof.
ARTICLE VIII
REDEMPTION OF CERTIFICATES
Section 8.01. Redemption. If the Bonds are redeemed in whole or in
part on or after the First Call Date, upon actual receipt by the Trustee of
notice of such redemption, the Trustee shall, in accordance with the provisions
of this Article VIII, redeem a principal amount of Certificates equal to the
principal amount of the Bonds of such issue held in trust hereunder so redeemed,
and if the Bonds are redeemed in part, then the Trustee shall select the
Certificates to be redeemed by lot in such manner as the Trustee deems fair and
appropriate. In the absence of the actual notice described in this Section 8.01,
the Trustee shall be under no obligation to effect the redemption required by
this Section 8.01. Upon redemption of any Certificate, the Holder will have no
right to receive payments on any Interest maturing after the Redemption Date.
Section 8.02. Notice of Redemption. Notice of redemption shall be
given by the Trustee to each Holder of any Certificate to be redeemed as
provided in Section 9.03 hereof within thirty (30) days after notice of
redemption of the underlying Bonds has been given by the Issuer, trustee or
paying agent of or for the Bonds, as the case may be (but not less than fifteen
days prior to the redemption date); provided, however, that the Trustee shall
not be required to give any notice of redemption less than five (5) business
days after the date it receives notice of such redemption. All notices of
redemption shall be mailed to each Holder at such Holder's last address on the
Certificate Register and shall state the Redemption Date, the date the
Certificates are to be redeemed, the amount payable on such date, the place at
which Certificates are to be surrendered for payment and that interest on
amounts redeemed will cease to accrue on and after the Redemption Date.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Exclusive Benefit of Parties and Holders of
Certificates; Effective Date. This Agreement is for the exclusive benefit of the
parties hereto, their respective successors hereunder, and Holders of
Certificates, and shall not be deemed to give any legal or equitable right,
remedy or
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claim to any other person whatsoever. The Holders from time to time shall be
beneficiaries of this Agreement and shall be bound by all the terms and
conditions hereof and of the Certificates by acceptance of delivery thereof.
This Agreement shall become effective as to the Trustee and the Depositor for
each series of Certificates upon the execution of the Series Trust Agreement for
such series by the Trustee and Depositor and the receipt by the Trustee of the
Bonds deposited therewith.
Section 9.02. Invalidity of Provisions. In case any one or more of the
provisions contained in this Agreement or contained in the Certificates should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
Section 9.03. 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.
Section 9.04. Notices. Any and all notices to be given to the
Depositor shall be deemed to have been duly given if personally delivered or
sent by mail, first class, post prepaid, or telegram or telex or facsimile
confirmed by letter addressed to the Depositor at the Depositor Address set
forth in the Series Trust Agreement relating to Certificates evidencing Bonds
deposited by the Depositor, or at any other place as the Depositor shall notify
the Trustee in writing from time to time.
Any and all notices to be given to the Trustee shall be deemed to have
been duly given if personally delivered or sent by mail, first class, post
prepaid, or facsimile confirmed by letter addressed to the Trustee at the
Trustee Address set forth for notice to the Trustee in the Series Trust
Agreement, or to such other place which the Trustee may have designated in
writing to the Depositor.
Any and all notices to be given to the Rating Agency shall be deemed
to have been duly given if personally delivered or sent by mail, first class,
post prepaid, or facsimile confirmed by letter addressed to the Rating Agency at
the Rating Agency Address set forth in the Series Trust Agreement, or to such
other place which the Rating Agency may have designated in writing to the
Depositor and the Trustee.
All other notices to be given to any Holder shall be deemed to have
been duly given if given by mail, first-class postage prepaid, to each Holder at
such Holder's address as it appears in the Certificate Register. Neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
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All notices specified to be given "promptly" hereunder shall be given
no later than the second business day after the event which results in the
requirement that the notice be delivered.
Section 9.05. Governing Law; Forum. This Agreement and the
Certificates shall be governed by, and construed in accordance with, the laws of
the State of New York. Any action or proceeding alleging a breach of an
obligation under this Agreement shall be prosecuted only in a state or federal
court located in the State of New York, County of New York.
Section 9.06. Headings. The headings of articles and sections in this
Agreement have been inserted for convenience only and are not to be regarded as
a part of this Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Certificates.
Section 9.07. Covenant of Depositor and Trustee Not to Place Trust in
Bankruptcy. Each party hereto covenants that it shall not, until at least one
year and one day after the termination of this Agreement, take any action to
file an involuntary bankruptcy petition against the Trust or cause the Trust to
file a voluntary bankruptcy petition.
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