EXHIBIT 1
================================================================================
BASE TRUST AGREEMENT
between
STRUCTURED PRODUCTS CORP.
Depositor
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
Trustee
Dated as of September 15, 1997
================================================================================
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND AGREEMENT PROVISIONS*
Trust Indenture
Act Section Agreement Section
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310(a)(1) .................... 8.6(a)
(a)(2) .................... 8.6(a)
(a)(3) .................... 8.10
(a)(4) .................... 8.1(d)
(a)(5) .................... 8.6(a)
(b) .................... 8.6(b), 8.7
(c) .................... Not Applicable
311(a) .................... 6.8
(b) .................... 6.8
312(a) .................... 3.19, 3.20(a)
(b) .................... 3.20(b)
(c) .................... 3.20(c)
313(a) .................... 3.21
(b) .................... 3.21
(c) .................... 3.21
(d) .................... 3.21
314(a) .................... 6.1(a), 6.1(b)
(b) .................... 6.1(c), 6.1(d)
(c)(1) .................... 6.1(f)
(c)(2) .................... 6.1(f)
(c)(3) .................... 6.1(f)
(d)(1) .................... 6.1(e)
(d)(2) .................... 6.1(e)
(d)(3) .................... Not Applicable
(e) .................... 6.1(f)
315(a) .................... 8.1(c)
(b) .................... 8.1(f)
(c) .................... 8.1(a)
(d) .................... 8.1(c)
(d)(1) .................... 8.1(c)
(d)(2) .................... 8.1(c)
(d)(3) .................... 8.1(c)
(e) .................... 8.5(c)
316(a)(1)(A) .................... 5.17
316(a)(1)(B) .................... 5.18
316(a)(2) .................... Not Applicable
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* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within agreement.
316(b) .................... 5.6(f), 4.1
316(c) .................... 5.7
317(a) .................... 3.12
317(b) .................... 5.14
318(a) .................... 10.12
TABLE OF CONTENTS
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ARTICLE I
Definitions and Assumptions
Section 1.1. Definitions................................................................................. 1
Section 1.2. Rules of Construction....................................................................... 15
ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts; Assignment of Term Assets............................... 16
Section 2.2. Acceptance by Trustee....................................................................... 16
Section 2.3. Repurchase or Substitution of Certain Term Assets by the Term Asset
Provider............................................................................................. 17
Section 2.4. Representations and Warranties of the Depositor and Representations,
Warranties and Covenants of the Administrative Agent................................................. 18
Section 2.5. Breach of Representation, Warranty or Covenant.............................................. 20
Section 2.6. Agreement to Authenticate and Deliver Certificates.......................................... 20
Section 2.7. Statement of Intent......................................................................... 20
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust................................................................ 20
Section 3.2. Sub-Administration Agreements Between Administrative Agent or
Trustee and Sub-Administrative Agents................................................................ 21
Section 3.3. Successor Sub-Administrative Agents......................................................... 22
Section 3.4. Liability of the Administrative Agent....................................................... 22
Section 3.5. No Contractual Relationship Between Certain Sub-Administrative
Agents and Trustee or Certificateholders............................................................. 23
Section 3.6. Assumption or Termination of Sub-Administration Agreements by
Trustee.............................................................................................. 23
Section 3.7. Collection of Certain Term Asset Payments................................................... 24
Section 3.8. Collections by Sub-Administrative Agent..................................................... 24
Section 3.9. Certificate Account......................................................................... 24
Section 3.10. Investment of Funds in the Accounts........................................................ 25
Section 3.11. Maintenance of Credit Support.............................................................. 26
Section 3.12. Realization Upon Defaulted Term Assets..................................................... 26
Section 3.13. Retained Interest.......................................................................... 28
Section 3.14. Administrative Agent's Compensation and Reimbursement................................. 28
Section 3.15. Statement as to Compliance................................................................. 28
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Section 3.16. Independent Public Accountants' Administration Report...................................... 29
Section 3.17. Access to Certain Documentation............................................................ 29
Section 3.18. Duties of the Administrative Agent......................................................... 30
Section 3.19. Depositor to Furnish Names and Addresses of Holders to Trustee............................. 30
Section 3.20. Preservation of Information, Communications to Holders..................................... 30
Section 3.21. Reports by Trustee......................................................................... 30
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions............................................................................... 31
Section 4.2. Reports to Certificateholders............................................................... 31
Section 4.3. Advances.................................................................................... 32
Section 4.4. Compliance with Withholding Requirements.................................................... 33
Section 4.5. Optional Exchange........................................................................... 33
ARTICLE V
The Certificates
Section 5.1. The Certificates............................................................................ 35
Section 5.2. Execution, Authentication and Delivery...................................................... 39
Section 5.3. Temporary Certificates...................................................................... 39
Section 5.4. Registration; Registration of Transfer and Exchange......................................... 40
Section 5.5. Mutilated, Destroyed, Lost and Stolen Certificates.......................................... 43
Section 5.6. Distribution of Interest; Interest Rights Preserved......................................... 43
Section 5.7. Persons Deemed Owners....................................................................... 44
Section 5.8. Cancellation................................................................................ 45
Section 5.9. Global Securities........................................................................... 45
Section 5.10. Notices to Depositary................................................................. 46
Section 5.11. Definitive Certificates.................................................................... 46
Section 5.12. Currency of Distributions in Respect of Certificates....................................... 47
Section 5.13. Conditions of Authentication and Delivery of New Series.................................... 48
Section 5.14. Appointment of Paying Agent................................................................ 49
Section 5.15. Authenticating Agent....................................................................... 49
Section 5.16. Events of Default.......................................................................... 51
Section 5.17. Control by Holders......................................................................... 51
Section 5.18. Waiver of Past Defaults.................................................................... 51
ARTICLE VI
The Depositor and the Administrative Agent
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Section 6.1. Preparation and Filing of Exchange Act Reports; Obligations of the
Depositor and the Administrative Agent............................................................... 52
Section 6.2. Merger or Consolidation of the Depositor or the Administrative Agent........................ 55
Section 6.3. Limitation on Liability of the Depositor and the Administrative Agent....................... 56
Section 6.4. Limitation on Resignation of the Administrative Agent....................................... 57
Section 6.5. Rights of the Depositor in Respect of the Administrative Agent.............................. 57
Section 6.6. Depositor May Purchase Certificates......................................................... 58
Section 6.7. The Administrative Agent and Other Parties.................................................. 58
Section 6.8. Preferential Collection of Claims Against Depositor......................................... 58
ARTICLE VII
Administrative Agent Termination Events
Section 7.1. Administrative Agent Termination Events..................................................... 58
Section 7.2. Trustee to Act; Appointment of Successor.................................................... 60
Section 7.3. Notification to Certificateholders.......................................................... 61
Section 7.4. Waiver of Administrative Agent Termination Events........................................... 61
ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults....................................................... 62
Section 8.2. Certain Matters Affecting the Trustee....................................................... 64
Section 8.3. Trustee Not Liable for Recitals in Certificates or Term Assets.............................. 66
Section 8.4. Trustee May Own Certificates................................................................ 66
Section 8.5. Trustee's Fees and Expenses; Indemnification................................................ 66
Section 8.6. Eligibility Requirements for Trustee........................................................ 67
Section 8.7. Resignation or Removal of the Trustee....................................................... 67
Section 8.8. Successor Trustee........................................................................... 68
Section 8.9. Merger or Consolidation of Trustee.......................................................... 68
Section 8.10. Appointment of Co-Trustee or Separate Trustee.............................................. 69
Section 8.11. Appointment of Office or Agency............................................................ 70
Section 8.12. Representations and Warranties of Trustee.................................................. 70
Section 8.13. Trustee to Act Only in Accordance With This Agreement or Pursuant
to Instructions of Certificateholders................................................................ 70
Section 8.14. Accounting and Reports to Certificateholders, Internal Revenue
Service and Others................................................................................... 71
Section 8.15. Signature on Returns....................................................................... 71
ARTICLE IX
Termination
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Section 9.1. Termination upon Purchase or Liquidation of All Term Assets................................. 71
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment.................................................................................. 72
Section 10.2. Counterparts............................................................................... 74
Section 10.3. Limitation on Rights of Certificateholders................................................. 74
Section 10.4. Governing Law.............................................................................. 75
Section 10.5. Notices.................................................................................... 75
Section 10.6. Severability of Provisions................................................................. 75
Section 10.7. Notice to Rating Agency.................................................................... 75
Section 10.8. Grant of Security Interest................................................................. 76
Section 10.9. Nonpetition Covenant....................................................................... 77
Section 10.10. No Recourse............................................................................... 77
Section 10.11. Article and Section References............................................................ 77
Section 10.12. Conflict with Trust Indenture Act......................................................... 77
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TRUST AGREEMENT dated as of September 15, 1997, between
STRUCTURED PRODUCTS CORP., a Delaware corporation, as
Depositor, and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
a national banking association, as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the execution and
delivery of this Trust Agreement to provide for one or more Series (and one or
more Classes within each such Series) of Trust Certificates, issuable from time
to time as provided in this Agreement. Each such Series (or each Class within
such Series) of Certificates will be issued only under a separate Series
Supplement to this Agreement duly executed and delivered by the Depositor, the
Administrative Agent, if any, specified in the applicable Series Supplement, and
the Trustee. All representations, covenants and agreements made herein by each
of the Depositor, the Administrative Agent, if any, and the Trustee are for the
benefit and security of the Certificateholders and, to the extent provided in
the applicable Series Supplement, for the benefit and security of any Credit
Support Provider. The Depositor is entering into this Agreement, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
ARTICLE I
Definitions and Assumptions
Section 1.1. Definitions. Except as otherwise specified herein or in the
applicable Series Supplement or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement.
"Account": As defined in Section 3.10.
"Accounting Date": With respect to any Series, if applicable, as defined in
the related Series Supplement.
"Administrative Agent": With respect to any Series of Certificates, the
Person, if any, specified in the applicable Series Supplement for such Series
(which Person shall have agreed pursuant to such Series Supplement to assume all
the duties, obligations, responsibilities and liabilities of the Administrative
Agent as set forth in this Agreement and such Series Supplement with respect to
such Series), until a successor Person shall have become the Administrative
Agent pursuant to the applicable provisions of this Agreement and such Series
Supplement, and thereafter "Administrative Agent" shall mean such successor
Person.
"Accreted Amount": With respect to each Series, if applicable, as defined
in the related Series Supplement.
"Administrative Agent": With respect to each Series, if applicable, as
defined in the related Series Supplement.
"Administrative Agent Termination Event": As defined in Section 7.1.
"Administrative Fee": With respect to each Series, if applicable, as
defined in the related Series Supplement.
"Advance": As defined in Section 4.3.
"Affiliate": With respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement": With respect to any Series of Certificates, this Trust
Agreement and all amendments hereof and, unless the context otherwise requires,
the related Series Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official language of the country
of publication customarily published at least once a day, and customarily
published for at least five days in each calendar week, and of general
circulation in such city or cities specified pursuant to Section 5.1 with
respect to the Certificates of any Series. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the applicable Series
Supplement, for any Distribution Date in respect of a given Series or Class, the
sum of (i) all amounts actually received on or with respect to the Term Assets
(including Liquidation Proceeds and investment income on amounts in the
Accounts) with respect to such Series during the related Collection Period, (ii)
all amounts received pursuant to any Credit Support Instruments with respect to
such Series for such Distribution Date and (iii) all other amounts, if any,
specified by the applicable Series Supplement.
"Basic Documents": With respect to any Series, if applicable, as defined in
the related Series Supplement.
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"Board of Directors": Either the Board of Directors of the Depositor or any
executive or committee of such Board duly authorized under applicable law to act
on behalf of such Board.
"Board Resolution": A copy of a resolution certified by the Secretary or an
Assistant Secretary of the Depositor to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivery to the Trustee.
"Business Day": With respect to any Place of Distribution specified
pursuant to Section 5.1, any day that is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in such Place
of Distribution are authorized or obligated by law, regulation or executive
order to close or any day which is not a business day with respect to the Term
Assets, except as otherwise specified pursuant to Section 5.1.
"Calculation Agent": With respect to each Series, as defined in the related
Series Supplement.
"Call Premium Percentage": With respect to any Series (or Class within such
Series), if applicable, as defined in the related Series Supplement.
"Certificate Account": As defined in Section 3.9.
"Certificate Owners": As defined in Section 5.9.
"Certificate Principal Balance": With respect to an Outstanding
Certificate, as determined at any time, the maximum amount that the Holder
thereof is entitled to receive as distributions allocable to principal payments
on the Term Assets. The Certificate Principal Balance, if any, of any Class
within a given Series (other than those Classes, if any, specified in the
related Series Supplement), as of any date of determination, shall be equal to
the aggregate initial Certificate Principal Balance thereof less the sum of (i)
all amounts allocable to prior distributions made to such Class in respect of
principal of the Term Assets and (ii) any reductions attributable to
Certificates surrendered in exchange for Term Assets, as and to the extent
provided in the applicable Series Supplement.
"Certificate Register" and "Certificate Registrar": As respectively defined
in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": Any Trust Certificates authorized by, and authenticated and
delivered under, this Agreement.
"Class": With respect to any Series, any one of the classes of Certificates
of such Series, each consisting of Certificates having identical terms.
3
"Closing Date": With respect to any Series, the day on which Certificates
of such Series are first executed, authenticated and delivered.
"Code": The Internal Revenue Code of 1986 and Treasury Regulations
promulgated thereunder.
"Collection Period": With respect to any Distribution Date for a Series (or
Class within such Series), the period specified in the related Series
Supplement.
"Commission": The Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time after the
execution and delivery of this Agreement such Commission is not existing and
performing the duties now assigned to it, then the body then performing such
duties.
"Corporate Trust Office": The principal corporate trust office of the
Trustee located at the address set forth in the related Series Supplement or
such other addresses as the Trustee may designate from time to time by notice to
the Holders, the Administrative Agent, if any, and the Depositor, or the
principal corporate trust office of any successor Trustee (or such other
addresses as a successor Trustee may designate from time to time by notice to
the Holders, the Administrative Agent, if any, and the Depositor).
"Credit Support": With respect to any Series (or any Class within such
Series), a letter of credit, surety bond, swap agreement, put or call option or
other asset intended to support or ensure the timely or ultimate distributions
of amounts due in respect of all or certain of the Term Assets for such Series
or Class, which in each case is specified as such in the related Series
Supplement.
"Credit Support Instrument": The instrument or document pursuant to which
the Credit Support for a given Series (or any Class within such Series) is
provided, as specified in the applicable Series Supplement.
"Credit Support Provider": With respect to any Series (or any Class within
such Series), the Person, if any, that will provide any Credit Support with
respect to all or a portion of the Term Assets for such Series or Class as
specified in the applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date specified as such in
the related Series Supplement. For purposes of this Agreement, any Term Asset
acquired by the Depositor after the applicable Cut-off Date but prior to the
applicable Closing Date and included in the related Trust as of such Closing
Date shall be deemed to have been Outstanding as of such Cut-off Date and
references to the principal balance of such Term Asset as of such Cut-off Date
shall be deemed to be to the principal balance of such Term Asset as of the date
on which it was acquired by the Depositor.
"Definitive Certificates": As defined in Section 5.9.
4
"Deleted Term Asset": A Term Asset replaced or to be replaced by a
Qualified Substitute Term Asset.
"Depositary": With respect to the Certificates of any Series (or Class
within such Series) issuable in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary by the Depositor pursuant
to Section 5.1 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Agreement, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Certificates of any such Series or Class shall mean the Depositary with
respect to the Certificates of that Series or Class.
"Depositor": Structured Products Corp., a Delaware corporation, and, if a
successor Person shall have become the Depositor pursuant to any applicable
provisions of this Agreement, "Depositor" shall mean such successor Person.
"Depositor Order" or "Depositor Request": A written order or request,
respectively, signed in the name of the Depositor by any of its Chief Executive
Officer, Chief Financial Officer, Chief Operating Officer, President, a Vice
President, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee.
"Depository Agreement": If applicable, the agreement pursuant to which the
Depositary will agree to act as Depositary with respect to any Series (or Class
within such Series) of Certificates in accordance with Section 5.9.
"Discount Certificate": Any Certificate that is issued with "original issue
discount" within the meaning of Section 1273(a) of the Code and any other
Certificate designated by the Depositor as issued with original issue discount
for United States Federal income tax purposes.
"Distribution Date": With respect to any Series (or Class within such
Series) of Certificates, each date specified as a "Distribution Date" for such
Series (or Class) in the related Series Supplement.
"Dollar" or "$" or "USD": Such currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"Eligible Account": Either (i) an account or accounts maintained with a
Federal or State chartered depository institution or trust company the long term
unsecured debt obligations of which are rated by the Rating Agency the higher of
(x) at least the then current long-term rating of the Term Assets or (y) in one
of its two highest long-term rating categories (unless otherwise specified in
the Series Supplement) at the time any amounts are held in deposit therein or
(ii) a trust account or accounts maintained as a segregated account or as
segregated accounts and held by a Federal or State chartered depository
institution or trust company in trust for the benefit of the Certificateholders
provided, however, that such depositary institution or trust company has a
long-term rating in one of the four highest categories by the Rating Agency.
5
"Event of Default": With respect to any Series (or Class within such
Series) of Certificates, as specified in the related Series Supplement.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent": With respect to any Series (or Class within such
Series) of Certificates, if applicable, the Depositor or its agent so specified
in the related Series Supplement.
"Executive Officer": With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, any Vice
President, the Secretary or the Treasurer of such corporation; with respect to
any partnership, any general partner thereof.
"Extraordinary Trust Expense": With respect to any Series, as specified in
the related Series Supplement.
"Final Scheduled Distribution Date": With respect to each Series, as
defined in the Series Supplement.
"Fixed Pass Through Rate": With respect to any Fixed Rate Certificate, as
defined in the related Series Supplement.
"Fixed Rate Certificate": A Certificate that provides for a payment of
interest at a Fixed Pass Through Rate.
"Floating Pass Through Rate": With respect to any Floating Rate
Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate": A Certificate that provides for the payment of
interest at a Floating Pass Through Rate determined periodically by reference to
a formula specified pursuant to Section 5.1 and the related Series Supplement.
"Foreign Currency": A currency issued by the government of any country
other than the United States or a composite currency the value of which is
determined by reference to the values of the currencies of any group of
countries.
"Global Security": A Certificate evidencing all or part of a Series (or
Class within such Series) of Certificates, issued to the Depositary for such
Series or Class in accordance with Section 5.9 and bearing the legend prescribed
therein.
"Grant": To sell, convey, assign, transfer, create, ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a
security interest in and right of set-off against, deposit, set over and confirm
to the Trustee pursuant to this Agreement and a related Series Supplement; and
the terms "Granted" and "Granting" have the meanings correlative to the
foregoing. A Grant of any Term Assets or of any other instrument shall include
all rights, powers and options (but none of the obligations)
6
of the Granting party thereunder, including the immediate and continuing right
to claim for, collect, receive and give receipt for principal, premium, if any,
and interest payments in respect of such Term Assets and all other moneys
payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise, and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Guaranteed Investment Contract": With respect to any Series (or Class
within such Series), a guaranteed investment contract or surety bond provided
for in the related Series Supplement, Granted as part of the Trust or to the
Trustee for the benefit of the Certificateholders for such Series, providing for
the investment of funds in a related Account or related Accounts and insuring a
minimum or a fixed rate of return on the investment of such funds, which
contract or surety bond shall be an obligation of an insurance company or other
entity whose rating at the time of purchase of such guaranteed investment
contract or surety bond is no lower than the rating on the Term Assets and shall
satisfy any other requirements specified in such Series Supplement.
"Holder": The holder of a Certificate.
"Independent": When used with respect to any specified Person means that
the Person specifies he or she (1) is in fact independent of the Depositor and
the Administrative Agent, if any, and of any Affiliate of any of the foregoing
Persons, (2) does not have any direct or indirect financial interest in the
Depositor or the Administrative Agent, if any, or in any Affiliate of either of
the foregoing Persons which is material with respect to such Person and (3) is
not connected with the Depositor or the Administrative Agent, if any, as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate of an Independent Person, as
required by the TIA.
"Letter of Credit": With respect to any Series or Class within such Series,
the letter of credit, if any, providing for the payment of all or a portion of
amounts due in respect of such Series or Class, issued to the Trustee for the
benefit of the Holders of such Series or Class, issued by the related Credit
Support Provider, all as specified in the related Series Supplement.
"Limited Guarantor": With respect to the Term Assets relating to any Series
(or Class within such Series), a Person specified in the related Series
Supplement as providing a guarantee or insurance policy or other credit
enhancement supporting the distributions in respect of such Series (or Class) as
and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or Class within such Series,
any guarantee of or insurance policy or other comparable form of credit
enhancement with respect to amounts required to be distributed in respect of
such Series or Class or payments under all
7
or certain of the Term Assets relating to such Series or Class, executed and
delivered by a Limited Guarantor in favor of the Trustee, for the benefit of the
Certificateholders, as specified in the related Series Supplement.
"Liquidation Proceeds": The amounts received by the Administrative Agent,
if any, or the Trustee in connection with (i) the liquidation of a defaulted
Term Asset or collateral, if any, related thereto or (ii) the repurchase,
substitution or sale of a Term Asset.
"Notional Amount": With respect to any Class of Certificates, if
applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"Officer's Certificate": A certificate signed by any one (or, if specified
in this Agreement or any Series Supplement, more than one) Executive Officer of
the Depositor or Administrative Agent, as applicable, or, in the case of the
Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel, who may, except as
otherwise expressly provided in this Agreement, be counsel for the Depositor or
the Administrative Agent, if any, acceptable to the Trustee, except that any
opinion of counsel relating to the qualification of any account required to be
maintained pursuant to this Agreement as an Eligible Account must state that it
is an opinion of counsel who is in fact Independent of the Depositor and the
Administrative Agent, if any.
"Optional Exchange Date": With respect to any Series (or Class with such
Series), as defined, if applicable, in the related Series Supplement.
"Outstanding": With respect to Certificates of a specified Series (or Class
within such Series), as of any date of determination, all such Certificates
theretofore authenticated and delivered under this Agreement and the related
Series Supplement except:
(i) Certificates theretofore cancelled by the Certificate Registrar or
delivered to the Certificate Registrar for cancellation; and
(ii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented that any
such Certificates are held by a bona fide purchaser in whose hands such
Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Depositor, or any Affiliate thereof,
shall be disregarded and deemed not to be Outstanding, and the Voting Rights to
which its Holder would otherwise be entitled shall not be taken into account in
determining whether the requisite percentage of aggregate Voting Rights
necessary to effect any such consent or take any such action has been obtained
except that, in determining whether the
8
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates with
respect to which the Depositor has provided the Trustee an Officer's Certificate
stating that such Certificates are so owned shall be so disregarded.
Certificates so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee by
certifying to such effect in an Officer's Certificate the pledgee's right so to
act with respect to such Certificates and that the pledgee is not, to the actual
knowledge of the Trustee without any duty of investigation, the Depositor, the
Administrative Agent, if any, or any Affiliate of any thereof so owned. The
principal amount or notional amount, as applicable, of a Discount Certificate
that shall be deemed to be Outstanding for the determination referred to in the
foregoing proviso shall be the Certificate Principal Balance or Certificate
Notional Amount, as applicable, with respect thereto as of the date of such
determination, and the principal amount or notional amount, as applicable, of a
Certificate denominated in a Foreign Currency that shall be deemed to be
Outstanding for purposes of the determination referred to in the foregoing
provision shall be the amount calculated pursuant to Section 5.12(c).
"Participant": A broker, dealer, bank, other financial institution or other
Person for whom from time to time a Depositary effects book-entry transfers and
pledges of securities deposited with the Depositary.
"Pass Through Rate": With respect to any Series (or Class within such
Series) of Certificates (except certain Discount Certificates and Certificates
entitled to nominal or no interest distributions) the annual rate at which
interest accrues on the Certificates of such Series (or Class), which may be a
fixed rate or a floating rate of interest, determined upon the basis and in the
manner specified in the related Series Supplement.
"Paying Agent": As defined in Section 5.14.
"Percentage Interest": With respect to a Certificate of any Series or Class
within a Series, the portion of such Series or Class evidenced by such
Certificate, expressed as a percentage, equal to the product of (x) a fraction,
the numerator of which is the initial Certificate Principal Balance or Notional
Amount, as applicable, represented by such Certificate and the denominator of
which is the aggregate initial Certificate Principal Balance or Notional Amount,
as applicable, of all the Certificates of such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series, unless otherwise
specified in the related Series Supplement, any one or more of the following
obligations or securities, provided that the total return specified by the terms
of each such obligation or security is at least equal to the purchase price
thereof:
(i) direct obligations of, and obligations fully guaranteed by, the
United States, the Federal Home Loan Mortgage Corporation, the Federal
National Mortgage Association, the Federal Farm Credit System or any agency
or instrumentality of the United States the obligations of which are backed
by the full faith and credit of the United States of America; provided that
obligations of, or guaranteed by, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association or the
9
Federal Farm Credit System shall be Permitted Investments only if, at the
time of investment, it has the rating specified in such Series Supplement
for Permitted Investments;
(ii) demand and time deposits in, certificates of deposit of, or
banker's acceptances issued by any depository institution or trust company
(including the Trustee or any agent of the Trustee acting in their
respective commercial capacities) incorporated under the laws of the United
States or any State and subject to supervision and examination by Federal
and/or State banking authorities so long as the commercial paper and/or the
short-term debt obligations of such depository institution or trust company
(or, in the case of a depository institution which is the principal
subsidiary of a holding company, the commercial paper or other short-term
debt obligations of such holding company) at the time of such investment or
contractual commitment providing for such investment have the rating
specified in such Series Supplement for Permitted Investments; provided,
however, that such rating shall be no lower than the rating on the Term
Assets at the time of purchase of the investments;
(iii) repurchase agreements with respect to (a) any security described
in clause (i) above or (b) any other security issued or guaranteed by an
agency or instrumentality of the United States, with an entity having the
credit rating specified in such Series Supplement for Permitted
Investments;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any State
that have the rating specified in such Series Supplement for Permitted
Investments at the time of such investment or contractual commitment
providing for such investment; provided, however, that such rating shall be
no lower than the rating on the Term Assets; provided, further, that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such corporation and
held as part of the Trust for such Series to exceed 10% of the aggregate
outstanding principal balances and amounts of all the Term Assets and
Permitted Investments held as part of the Trust for such Series;
(v) commercial paper having at the time of such investment the rating
specified in the Series Supplement for Permitted Investments; and
(vi) a Guaranteed Investment Contract if and only if specified in the
related Series Supplement, provided that the Rating Agency Condition is
met.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Distribution": With respect to any Series (or Class within such
Series) of Certificates, the place or places where the principal of (and
premium, if any) and interest on the Certificates of such Series (or Class) are
distributable as specified pursuant to Section 5.1.
10
"Predecessor Certificate": With respect to any particular Certificate,
every previous Certificate evidencing all or a portion of the same interest as
that evidenced by such particular Certificate; and, for the purpose of this
definition, any Certificate authenticated and delivered under Section 5.5 in
lieu of a lost, destroyed or stolen Certificate shall be deemed to evidence the
same interest as the lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Price": With respect to any Term Asset required to be repurchased
by the Term Asset Provider pursuant to Section 2.3 and as confirmed by an
Officer's Certificate from the Administrative Agent, if any, or the Depositor,
as the case may be, to the Trustee, an amount equal to the sum of (i) the
greater of (x) 100% of the principal balance thereof as of the date of such
purchase or (y) if the Term Asset was purchased at a premium above face value
the price paid therefor, (ii) accrued and unpaid interest thereon from the
immediately preceding interest allocation date, or if no interest has been paid
to the Trust with respect thereto, from the Cut-Off Date, in each case at a rate
equal to the Fixed Pass Through Rate or the then applicable Floating Pass
Through Rate, as the case may be, as specified in the applicable Series
Supplement, on the principal balance of such Term Asset as of the close of
business on the Business Day immediately preceding the date of purchase or such
other day as may be specified in the applicable Series Supplement on which such
purchase is to occur, (iii) any unreimbursed Advances and any unpaid
Administrative Fees allocable to such Term Asset, (iv) expenses reasonably
incurred or to be incurred by the Administrative Agent, if any, or the Trustee
in respect of the breach or defect giving rise to the purchase obligation,
including any expenses arising out of the enforcement of the purchase obligation
and (v) any realized losses previously incurred with respect to such Term Asset
and allocated to Certificateholders on or before the date of purchase.
"Qualified Substitute Term Asset": With respect to any Series, as defined,
if applicable, in the related Series Supplement.
"Rating Agency": With respect to any Series (or Class within such Series),
as defined in the related Series Supplement.
"Rating Agency Condition": With respect to any action or occurrence, unless
otherwise specified in the applicable Series Supplement, that each Rating Agency
shall have been given 10 days (or such shorter period acceptable to each Rating
Agency) prior notice thereof and that each Rating Agency shall have notified the
Depositor, the Trustee and the Administrative Agent, if any, in writing that
such action or occurrence will not result in a reduction or withdrawal of the
then current rating of any Certificate of the applicable Series.
"Record Date": With respect to any Distribution Date for any Series (or
Class within such Series) of Certificates, the date specified in the related
Series Supplement.
"Required Interest": Unless otherwise specified in the related Series
Supplement, with respect to the Outstanding Certificates of any Series or any
Class thereof, the accrued and
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undistributed interest on the Certificate Principal Balance or Notional Amount
of such Outstanding Certificates computed at the applicable Pass Through Rate.
"Required Percentage--Amendment": Unless otherwise specified in the related
Series Supplement, 66-2/3% of the aggregate Voting Rights of Certificates of
such Series (or of a designated Class or group of Classes within such Series)
(either voting as separate Classes or as a single Class) applicable to such
matter, all as specified in the applicable Series Supplement.
"Required Percentage--Definitive Certificates": Unless otherwise specified
in the related Series Supplement, greater than 50% of the aggregate Voting
Rights of Certificates of such Series.
"Required Percentage--Direction of Trustee": Unless otherwise specified in
the related Series Supplement, greater than 50% of the aggregate Voting Rights
of Certificates of such Series.
"Required Percentage--Remedies": Unless otherwise specified in the related
Series Supplement, 66-2/3% of the aggregate Voting Rights of Certificates of
such Series.
"Required Percentage--Removal of Trustee": Unless otherwise specified in
the related Series Supplement, greater than 50% of the aggregate Voting Rights
of Certificates of such Series.
"Required Percentage--Waiver": Unless otherwise specified in the related
Series Supplement, 66-2/3% of the aggregate Voting Rights of Certificates of
such Series.
"Required Premium": If applicable, unless otherwise specified in the
related Series Supplement, with respect to the Certificates of any Series or any
Class thereof, an amount equal to the product, as determined on any Distribution
Date with respect to such Series or Class, of (i) the Required Principal for
such Series or Class and (ii) the Call Premium Percentage for such Series or
Class.
"Required Principal": As determined for any Distribution Date for a given
Series (or Class within such Series), unless otherwise specified in the related
Series Supplement, the amounts on deposit in the Certificate Account allocable
to principal payments on the Term Assets (including from Credit Support, if any,
and Advances, if any, but excluding amounts in respect of principal payments to
the extent that Advances with respect thereto were distributed as Required
Principal on a prior Distribution Date) and required to be distributed in
respect of Certificates of such Series (or Class) in accordance with the terms
of such Certificates and such related Series Supplement.
"Required Rating": With respect to any Series (or Class within such
Series), the rating category (or categories) specified in the Series Supplement
that, as a condition to the issuance of such Series or Class, is (or are) the
lowest category (or categories) in which the Certificates of such Series or
Class may be categorized by the Rating Agency.
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"Requisite Reserve Amount": As of any date with respect to any Series (or
Class within such Series) of Certificates, the amount, if any, required to be
maintained in the Reserve Account, if any, for such Series or Class as specified
in or determined pursuant to the related Series Supplement.
"Reserve Account": An Eligible Account, if any, created and maintained
pursuant to Section 3.11.
"Responsible Officer": With respect to the Trustee, any officer within the
Corporate Trust Office of the Trustee, including any Vice President, Assistant
Vice President, Assistant Treasurer, Assistant Secretary or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Retained Interest": If applicable, with respect to any Term Asset, an
ownership interest in and a right to a portion of the payments thereon by the
obligor thereof, as specified in the Term Assets Schedule to the related Series
Supplement, held by the Person so specified in such Term Assets Schedule.
"Scheduled Final Distribution Date": With respect to any Certificate, the
date on which all the unpaid principal of (and premium, if any, on) such
Certificate is scheduled, without giving effect to any prepayment, exchange or
early termination, to become due and payable as provided therein and in the
applicable Series Supplement.
"Series": A separate series of Certificates issued pursuant to this
Agreement and a related Series Supplement, which series may be divided into two
or more Classes, as provided in such Series Supplement.
"Series Supplement": An agreement supplemental to this Agreement that
authorizes the issuance of a particular Series (and each Class within such
Series) of Certificates.
"Specified Currency": As defined in the related Series Supplement.
"State": Any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ or the District of
Columbia.
"Sub-Administration Account": As defined in Section 3.8.
"Sub-Administration Agreement": The written contract, if any, between the
Administrative Agent, if any, specified in the applicable Series Supplement, or
Trustee and a Sub-Administrative Agent and any successor Administrative Agent or
Trustee or Sub- Administrative Agent relating to the administration of a Term
Asset or certain Term Assets as provided in Section 3.2.
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"Sub-Administrative Agent": Any Person with which the Administrative Agent,
if any, specified in the applicable Series Supplement, or the Trustee has
entered into a Sub- Administration Agreement and which meets the qualifications
of a Sub-Administrative Agent pursuant to Section 3.2.
"Surety Bond": If so specified in the Series Supplement, with respect to
any Series (or Class within such Series) of Certificates, the surety bond
providing for the distribution under certain circumstances specified in such
Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of such
Certificateholders by the related Credit Support Provider, all as specified in
such Series Supplement.
"Term Asset Provider": With respect to any Term Asset purchased pursuant to
a Term Asset Purchase Agreement, each entity specified as such in the applicable
Series Supplement or its successor in interest.
"Term Asset Purchase Agreement": With respect to certain Series of
Certificates, as designated in the applicable Series Supplement, the purchase
agreement providing for the purchase by the Depositor of one or more Term Assets
for such Series, substantially in the form acceptable to the Depositor,
provided, that if required by the applicable Series Supplement, such agreement
shall provide for the repurchase of such Term Assets on the terms set forth in
Section 2.3.
"Term Assets": With respect to any Series, the asset or assets Granted as
part of the Trust for such Series or acquired (or, in the case of an agreement,
entered into) by the Trustee for the benefit of the Holders of such Series and,
if and to the extent provided in the applicable Series Supplement, for the
benefit of any Credit Support Provider, all as identified in the Term Assets
Schedule to the related Series Supplement. The Term Assets for any such Series
or the related Trust shall not constitute Term Assets for any other Series or
any other Trust.
"Term Assets Issuer": As defined in the related Series Supplement.
"Term Assets Schedule": With respect to any Series, a listing of the Term
Assets for such Series as of the Closing Date, including, with respect to each
Term Asset, the obligor and the principal balance thereof, which shall be
attached to such Series Supplement as Schedule A.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated asset or pool of assets
subject hereto, constituting the trust created hereby and by the related Series
Supplement and to be administered hereunder and thereunder, consisting of those
Term Assets and the Credit Support, if applicable, and all sums distributed in
respect thereof that are specified as being part of the Trust for such Series in
the related Series Supplement, all for the benefit of the Certificateholders of
such Series as of any particular time.
14
"Trustee": With respect to any Series, the Person so specified in the
applicable Series Supplement (which Person shall have agreed pursuant to such
Series Supplement to assume all the duties, obligations, responsibilities and
liabilities of the Trustee as set forth in this Agreement and such Series
Supplement with respect to the related Series of Certificates) for such Series
or any co-trustee appointed pursuant to Section 8.10, until a successor Person
shall have become the Trustee pursuant to the applicable provisions of this
Agreement and the applicable Series Supplement, and thereafter "Trustee" shall
mean such successor Person.
"Trust Termination Event": With respect to any Series, as specified in the
related Series Supplement.
"Uniform Commercial Code": The Uniform Commercial Code as in effect in the
relevant jurisdiction or, with respect to the State of Louisiana, the equivalent
body of statutory and common law.
"United States": The United States of America (including the States), its
territories, its possessions and other areas subject to its jurisdiction.
"Voting Rights": With respect to any Series (or Class within such Series)
of Certificates, the portion of the aggregate voting rights of the Certificates
of such Series or Class which shall be allocated to any Certificate as specified
in the applicable Series Supplement.
Section 1.2. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the plural
include the singular.
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ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts; Assignment of Term Assets.
(a) The Depositor, concurrently with the execution and delivery hereof, does
hereby agree to (i) Grant to the Trustee, on behalf and for the benefit of the
Certificateholders of each given Series of Certificates and without recourse,
all the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in, to and under the Term
Assets attributable to each such Series (except for the Term Assets attributable
to such Series which are not Granted by the Depositor, as specified in the Term
Assets Schedule to the applicable Series Supplement), now existing or hereafter
acquired, in each case as identified on the applicable Term Assets Schedule, and
all other assets included or to be included in the respective Trust for the
benefit of the Certificateholders of each such Series or (ii) deliver to the
Trustee for deposit in the Certificate Account an amount, in immediately
available funds in a form acceptable to the Trustee, sufficient to acquire the
Term Assets attributable to such Series, in each case as identified on the Term
Asset Schedule to the applicable Series Supplement, and all other assets to be
included in the respective trust for the benefit of the Certificateholders of
each such Series. Each such Grant will include all interest, premium (if any)
and principal received by or on behalf of the Depositor of, on or with respect
to any such Term Assets due after the applicable Cut-off Date, and, unless
otherwise specified in the Series Supplement, will exclude (i) all interest,
premium (if any) and principal of, on or with respect to any such Term Assets
due on or before the applicable Cut-off Date and (ii) any Retained Interest in
any such Term Asset.
(b) In connection with each Grant referred to in the preceding paragraph,
the Depositor shall, not later than the applicable Closing Date, (i) deposit the
Term Assets for a given Series (except for the Term Assets attributable to such
Series which are to be acquired from a Person other than the Depositor, as
specified on the Term Assets Schedule to the applicable Series Supplement) with
the Trustee by physical delivery of such Term Assets, duly endorsed, to the
Trustee or by causing such Term Assets to be registered by book entry in the
name of the Trustee and (ii) with respect to each such Term Asset, deliver or
cause to be delivered to the Trustee all documents necessary to transfer
ownership of each such Term Asset to the Trustee.
(c) Unless otherwise specified in the applicable Series Supplement, the
Grant of such Term Assets by the Depositor for a given Series accomplished
hereby and by such Series Supplement is absolute and is intended by the parties
hereto as a sale. The Depositor represents and covenants that the Term Assets as
of the respective Closing Dates will be free and clear of any right, charge,
security interest or lien or claim in favor of the Depositor and, with respect
to any Grant of Term Assets, that the Depositor will as of such respective
Closing Date have the right to Grant the applicable Term Assets to the Trustee.
Section 2.2. Acceptance by Trustee. (a) With respect to each Series, the
Trustee will acknowledge receipt by it, or by a custodian on its behalf, of the
related Term Assets and the related documents referred to in Section 2.1, now
existing or hereafter acquired, and declares
16
that it will hold such Term Assets and documents and all other documents
delivered to it pursuant to this Agreement, and that it will hold all such
assets and such other assets (including Term Assets acquired from a Person other
than the Depositor) comprising the Trust for a given Series of Certificates, in
trust for the exclusive use and benefit of all present and future
Certificateholders of such Series and for the purposes and subject to the terms
and conditions set forth in this Agreement.
(b) The Trustee, or a custodian on its behalf, shall review all documents
received by it pursuant to Section 2.1 within 45 days after receipt thereof. If
in the process of reviewing such documents the Trustee or such custodian
discovers any document or documents to be missing or defective, the Trustee
shall promptly (but in any event within 10 Business Days) so notify the
Depositor and the Administrative Agent, if any. In addition, upon the discovery
by the Depositor, the Administrative Agent, if any, or the Trustee of a breach
of any of the representations and warranties made by any Term Asset Provider in
the related Term Asset Purchase Agreement, if any, in respect of any Term Asset
that materially and adversely affects the interests of the Certificateholders,
the party discovering such breach shall give prompt written notice to the other
parties hereto (but in any event within 10 Business Days).
Section 2.3. Repurchase or Substitution of Certain Term Assets by the Term
Asset Provider. (a) If and to the extent provided for in a Series Supplement
relating to a given Series of Certificates, upon discovery or receipt of notice
pursuant to Section 2.2 that a document is missing or defective, the Trustee
shall immediately notify the Depositor, the Administrative Agent, if any, and
the Rating Agency that such document is defective or missing and, unless the
Depositor provides to the Trustee an Officer's Certificate stating such missing
or defective document will not have a materially adverse effect on the related
Trust, the Administrative Agent, if any, or the Trustee shall immediately so
notify the Term Asset Provider and require that the Term Asset Provider deliver
such missing document or cure such defect within 60 days from the date on which
such Term Asset Provider was first notified of such missing document or defect,
and if such Term Asset Provider does not deliver such missing document or cure
such defect in all material respects during such period, the Administrative
Agent, if any, or the Trustee shall use its best efforts to enforce the Term
Asset Provider's obligation, if any, under the related Term Asset Purchase
Agreement to repurchase such Term Asset from the Trustee at the applicable
Purchase Price within 90 days after the date on which the Term Asset Provider
was first notified of such missing document or defect. The Purchase Price for
the repurchased Term Asset shall be delivered to the Administrative Agent, if
any, or to the Trustee directly for deposit in the Certificate Account and the
Trustee, upon receipt either of certification by the Administrative Agent, if
any, of such deposit or of such deposit directly, shall release to the Term
Asset Provider the related documents in its possession and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in the Term Asset Provider any Term
Asset released pursuant hereto, and the Trustee shall have no further
obligations with regard to such documents. The foregoing notwithstanding, if and
to the extent the Series Supplement provides, the Term Asset Provider may, as an
alternative to repurchasing any such Term Asset as provided above, if and to the
extent so provided in the Term Asset Purchase Agreement, cause such Term Asset
to be removed from the Trust (in which case it shall become a Deleted Term
Asset) by agreeing to substitute one or more Qualified Substitute Term Assets in
the manner and subject to the
17
limitations set forth in Section 2.3(b) and the related Series Supplement. It is
understood and agreed that the obligation of the Term Asset Provider to
repurchase or substitute for any Term Asset as to which a constituent document
is missing or a defect in a constituent document exists shall, if such defect is
not cured or such missing document is not provided, constitute (unless otherwise
specified in the applicable Series Supplement) the sole remedy respecting such
omission or defect available to the Certificateholders or the Trustee on behalf
of the Certificateholders. It is further understood and agreed that, unless
otherwise provided in the related Series Supplement, in no event shall either
the Depositor or the Administrative Agent, if any, be obligated to repurchase or
substitute for such a Term Asset, regardless of whether the Term Asset Provider
defaults on its obligation to repurchase or substitute for such a Term Asset.
(b) If and to the extent provided for in a Series Supplement relating to a
given Series of Certificates, with respect to any Deleted Term Asset for which
the Depositor or the Term Asset Provider substitutes a Qualified Substitute Term
Asset or Assets, such substitution shall be effected by the Depositor or Term
Asset Provider delivering to the Trustee or a custodian on its behalf such
Qualified Substitute Term Asset or Assets and such documents and agreements,
with all necessary endorsements thereon, as would be required under the terms of
Section 2.1, together with an Officer's Certificate of the Depositor or relevant
Term Asset Provider certifying that each such Qualified Substitute Term Asset
satisfies the definition thereof and the requirements under this Section. The
Trustee or such custodian shall acknowledge receipt of such Qualified Substitute
Term Asset or Assets and, within five Business Days thereafter, review such
documents in the manner specified in Section 2.2. The Depositor shall give or
cause to be given written notice to the Certificateholders of such Series and
the Rating Agency that such substitution has taken place and shall amend the
Term Asset Schedule to reflect the removal of such Deleted Term Asset from the
terms of this Agreement and the substitution of the Qualified Substitute Term
Asset or Assets. Upon such substitution, such Qualified Substitute Term Asset or
Assets shall be subject to the terms of this Agreement in all respects,
including those related to the representations and warranties included in the
Term Asset Purchase Agreement as of the date of substitution. The terms upon
which such substitution may be effected shall be specified in the applicable
Series Supplement.
Section 2.4. Representations and Warranties of the Depositor and
Representations, Warranties and Covenants of the Administrative Agent. (a) The
Depositor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein or in the applicable
Series Supplement:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) with respect to each Series Supplement, to the Depositor's
knowledge, the information set forth in the Term Asset Schedule with
respect to each Term Asset is true and correct in all material respects at
the date or dates respecting which such information is furnished;
(iii) the execution and delivery of this Agreement by the Depositor
and its performance of and compliance with the terms of this Agreement will
not violate the
18
Depositor's articles of incorporation or by-laws or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the Depositor is a party
or which may be applicable to the Depositor or any of its assets;
(iv) the Depositor has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement and
has duly executed and delivered this Agreement. This Agreement, upon its
execution and delivery by the Depositor and assuming due authorization,
execution and delivery by the Trustee, will constitute a valid, legal and
binding obligation of the Depositor, enforceable against it in accordance
with the terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement is
considered a proceeding in equity or at law);
(v) the Depositor is not in violation, and the execution and delivery
of this Agreement by the Depositor and its performance and compliance with
the terms of this Agreement will not constitute a violation, of any order
or decree of any court or any order or regulation of any Federal, State,
municipal or governmental agency having jurisdiction over the Depositor or
its properties, which violation would reasonably be expected to have a
material and adverse effect on the condition (financial or otherwise) or
operations of the Depositor or its properties or on the performance of its
duties hereunder; and
(vi) any additional representations and warranties, if any, that may
be specified in the applicable Series Supplement.
It is understood and agreed that the representations and warranties of the
Depositor set forth in this Section 2.4(a) shall survive delivery of the
respective documents to the Trustee and shall inure to the benefit of the
Trustee on behalf of the Certificateholders notwithstanding any restrictive or
qualified endorsement or assignment. Upon discovery by any of the Depositor, the
Administrative Agent, if any, or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely affects the
interests of the Certificateholders, the party discovering such breach shall
give prompt written notice thereof to the other parties.
(b) The Administrative Agent, if any, shall make such representations,
warranties, if any, and covenants that may be specified in the applicable Series
Supplement.
Upon discovery by any of the Depositor, the Administrative Agent, if any,
or the Trustee of a breach of any of the foregoing representations, warranties
and covenants which materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt written
notice thereof to the other parties.
19
Section 2.5. Breach of Representation, Warranty or Covenant. (a) Within 90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of a breach of any representation or warranty of the Depositor set
forth in Section 2.4(a) that materially and adversely affects the interests of
the Certificateholders of a given Series of Certificates, the Depositor shall
cure such breach in all material respects.
(b) With respect to an Administrative Agent appointed pursuant to the
applicable Series Supplement, within 90 days of the earlier of discovery by such
Administrative Agent or receipt of notice by such Administrative Agent of a
breach of any representation, warranty or covenant of such Administrative Agent
set forth in the applicable Series Supplement that materially and adversely
affects the interests of the Certificateholders, such Administrative Agent shall
cure such breach in all material respects.
Section 2.6. Agreement to Authenticate and Deliver Certificates. With
respect to each Series of Certificates and the related Trust, the Trustee hereby
agrees and acknowledges that it will, concurrently with the Grant to and receipt
by it of the related Term Assets and delivery to it by the Depositor of executed
Certificates of such Series, cause to be authenticated and delivered to or upon
the order of the Depositor, in exchange for the Term Assets and such other
assets constituting the Trust for a given Series, Certificates duly
authenticated by or on behalf of the Trustee in authorized denominations
evidencing ownership of the entire Trust for such Series, all in accordance with
the terms and subject to the conditions of Sections 5.2 and 5.13.
Section 2.7. Statement of Intent. It is the intention of the parties hereto
that, for purposes of federal income taxes, state and local income and franchise
taxes and any other taxes imposed upon, measured by or based upon gross or net
income, the Trust shall be treated as a grantor trust, but failing that, as a
partnership. The terms of this Agreement shall be interpreted to further this
intention of the parties. The parties hereto agree that, unless otherwise
required by appropriate tax authorities, the Trust shall file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
such intended characterization. Each Certificateholder and each beneficial owner
of a Certificate by acceptance of its Certificate (or its beneficial interest
therein) agrees, unless otherwise required by appropriate tax authorities, to
file its own tax returns and reports in a manner consistent with such
characterization.
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust. (a) The Trustee (and, to the
extent required in the applicable Series Supplement, any Administrative Agent)
shall administer the Term Assets for each given Trust for the benefit of the
Certificateholders of the related Series. In engaging in such activities, the
Trustee (or the Administrative Agent, if applicable) shall, subject to the
provisions of Article VI hereof, follow or cause to be followed collection
procedures in accordance with the terms of this Agreement and the applicable
Series Supplement, the respective Term Assets and any applicable Credit Support
Instruments. With
20
respect to each Trust, and subject only to the above-described standards and the
terms of this Agreement, the related Series Supplement and the respective Term
Assets and applicable Credit Support Instruments, if any, the Trustee (or the
Administrative Agent, if applicable) shall have full power and authority, acting
alone or through Sub-Administrative Agents as provided in Section 3.2, to do or
cause to be done any and all things in connection with such administration which
it deems necessary to comply with the terms of this Agreement and the applicable
Series Supplement.
(b) Without limiting the generality of the terms of paragraph (a) of this
Section 3.1, with respect to any Series of Certificates, the Administrative
Agent, if any, specified in the applicable Series Supplement shall be hereby
authorized and empowered by the Depositor, when such Administrative Agent
believes it appropriate in its reasonable judgment and when otherwise required
by a Series Supplement, in its own name or in the name of a Sub- Administrative
Agent, (i) to instruct the Trustee to make distributions or payments from the
Certificate Account or any other Account for such Series, as set forth herein or
in the related Series Supplement, and (ii) to the extent specified in the
related Series Supplement, to execute and deliver, on behalf of the
Certificateholders of such Series and the Trustee or any of them, and upon
notice to the Trustee, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, and all other comparable
instruments, with respect to any of the Term Assets relating to such Series.
(c) The duties of the Trustee and the Administrative Agent, if any, shall
be performed in accordance with applicable local, State and Federal law, and the
Trustee (or, if specified in the applicable Series Supplement, the
Administrative Agent) shall at the direction of the Administrative Agent or, if
none, as specified in the applicable Series Supplement and/or by the Depositor,
make any and all filings, reports, notices or applications with, and seek any
comments and authorizations from, the Commission and any State securities
authority on behalf of the Trust for each Series to the extent it is provided
with appropriate information, materials and responses by the Administrative
Agent or, if none, as specifically set forth in the applicable Series Supplement
and/or by the Depositor. If the applicable Series Supplement appoints an
Administrative Agent, the Trustee, in its capacity as Trustee, shall execute, at
the direction of such Administrative Agent, any powers of attorney and other
documents necessary or appropriate to enable the Administrative Agent to carry
out any of its administrative duties hereunder; provided, however, that the
Trustee, in its capacity as Trustee, shall not be accountable for the actions of
the Administrative Agent or any Sub-Administrative Agents under such powers of
attorney.
Section 3.2. Sub-Administration Agreements Between Administrative Agent or
Trustee and Sub-Administrative Agents.
(a) Unless otherwise provided in a Series Supplement, an Administrative
Agent specified in the applicable Series Supplement and the Trustee may enter
into Sub-Administration Agreements with one or more Sub-Administrative Agents in
order to delegate their administrative obligations with respect to a related
Series under this Agreement to such Sub- Administrative Agents; provided,
however, that (i) such delegation shall not release either such Administrative
Agent or the Trustee, as applicable, from the duties, obligations,
responsibilities
21
or liabilities arising under this Agreement; (ii) the Rating Agency Condition
shall have been satisfied with respect to the entering into of any such
agreement and (iii) such agreements are consistent with the terms of this
Agreement and, with respect to Certificates of any Series, the related Series
Supplement. With respect to any Series (or Class within such Series) of
Certificates, each Sub-Administration Agreement shall impose on the
Sub-Administrative Agent requirements conforming to the provisions set forth in
Section 3.1 and provide for administration of the related Trust and all or
certain specified Term Assets for such Series consistent with the terms of this
Agreement. Additional requirements relating to the scope and contents of any
Sub- Administration Agreement may be provided in the applicable Series
Supplement. Such Administrative Agent shall deliver to the Trustee and the
Depositor copies of all Sub- Administration Agreements which it enters into, and
any amendments or modifications thereof, promptly upon the Administrative
Agent's execution and delivery of any such instruments.
(b) As part of its duties hereunder, an Administrative Agent specified in
the applicable Series Supplement shall enforce the obligations of each
Sub-Administrative Agent under any related Sub-Administration Agreement which it
enters into and of the Term Asset Provider, if any, under any Term Asset
Purchase Agreement, for the benefit of the Trustee and the Certificateholders of
a given Series. Such enforcement, including the legal prosecution of claims, the
termination of Sub-Administration Agreements or Term Asset Purchase Agreements,
as appropriate, and the institution of Proceedings and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Administrative Agent, in its good faith business
judgment, deems necessary or advisable, subject in all cases to the provisions
of Article VI hereof.
Section 3.3. Successor Sub-Administrative Agents. An Administrative Agent
specified in the applicable Series Supplement and the Trustee shall each be
entitled to terminate any Sub-Administration Agreement which it enters into and
the rights and obligations of any Sub-Administrative Agent under any
Sub-Administration Agreement in accordance with the terms and conditions of any
such Sub-Administration Agreement. In the event of a termination of any
Sub-Administration Agreement, the Administrative Agent or the Trustee, as
applicable, shall simultaneously reassume direct responsibility for all
obligations delegated in such Sub- Administration Agreement without any act or
deed on the part of the applicable Sub- Administrative Agent, the Trustee or the
Administrative Agent, and the Administrative Agent or the Trustee, as
applicable, either shall administer directly the related Term Assets or shall
enter into a Sub-Administration Agreement with a successor Sub-Administrative
Agent which so qualifies under Section 3.2.
Section 3.4. Liability of the Administrative Agent. Notwithstanding any
Sub- Administration Agreement or any of the provisions of this Agreement
relating to agreements or arrangements between an Administrative Agent, if any,
or the Trustee and a Sub-Administrative Agent or references to actions taken
through a Sub-Administrative Agent or otherwise, the Administrative Agent, if
any is specified in the applicable Series Supplement, or the Trustee, as
applicable, shall remain obligated and primarily liable to the Trustee and the
Certificateholders for the administering of the Trust and the Term Assets for
each related Series of Certificates to the extent provided herein and in the
related Series Supplement in accordance with the provisions of Section 3.1
without diminution of such obligation or liability by virtue of
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any such Sub-Administration Agreements or arrangements or by virtue of
indemnification from the Sub-Administrative Agent and to the same extent and
under the same terms and conditions as if the Administrative Agent or the
Trustee, as applicable, alone were administering the Term Assets, and the
Administrative Agent or the Trustee, as applicable, shall not thereby be
released from any duties or responsibilities set forth in this Agreement or the
related Series Supplement. The Administrative Agent and the Trustee shall be
entitled to enter into any agreement with a Sub-Administrative Agent for
indemnification of the Administrative Agent or the Trustee by such
Sub-Administrative Agent for any liability or obligation sustained by the
Administrative Agent or the Trustee in connection with any act or failure to act
by the Sub-Administrative Agent, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
Section 3.5. No Contractual Relationship Between Certain Sub-Administrative
Agents and Trustee or Certificateholders. Any Sub-Administration Agreement
between an Administrative Agent specified in the applicable Series Supplement
and a Sub-Administrative Agent that may be entered into and any transactions or
services relating to the Term Assets pursuant to such an agreement shall be
deemed to be between the Sub-Administrative Agent and the Administrative Agent
alone, and the Trustee and Certificateholders shall not be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Sub-Administrative Agent except as set forth in Section 3.6.
Except as set forth in Section 3.6, the Administrative Agent shall be solely
liable for all fees owed by it to any Sub- Administrative Agent, irrespective of
whether the Administrative Agent's compensation pursuant to this Agreement is
sufficient to pay such fees; provided, however, that if so provided in the
applicable Series Supplement, a Sub-Administrative Agent shall be entitled to a
Retained Interest in certain Term Assets as and to the extent specified in the
Term Assets Schedule to such Series Supplement. Each such Sub-Administrative
Agent shall be reimbursed by the Administrative Agent for expenditures made by
such Sub-Administrative Agent to the same extent the Administrative Agent would
be reimbursed for such expenditures pursuant to the terms of this Agreement.
Section 3.6. Assumption or Termination of Sub-Administration Agreements by
Trustee. Except as and to the extent otherwise provided in a Series Supplement,
in the event an Administrative Agent specified in the applicable Series
Supplement shall for any reason no longer be acting in such capacity with
respect to any Series, the Trustee or its designee shall thereupon assume all
the rights and obligations of the Administrative Agent under each Sub-
Administration Agreement that the Administrative Agent may have entered into
with respect to any Term Asset or Assets related to such Series, provided that
the Trustee may elect to terminate any such Sub-Administration Agreement in
accordance with its terms. Except as otherwise provided in such a Series
Supplement, the Trustee, its designee or any successor Administrative Agent
shall be deemed to have assumed all the Administrative Agent's interest therein
and to have replaced the Administrative Agent as a party to each
Sub-Administration Agreement to the same extent as if each Sub-Administration
Agreement had been assigned to the assuming party; provided, however, that the
Administrative Agent shall not thereby be relieved of any liability or
obligations under any Sub-Administration Agreement and provided further, that
the Administrative Agent shall in no event be obligated to make any Advances if
it is prohibited by law or regulation from doing so or from obligating itself to
do so. The Administrative Agent at its expense shall, upon request of the
Trustee, deliver to such assuming
23
party all documents and records relating to each Sub-Administration Agreement
and the Term Assets then being administered by it and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Sub-Administration Agreements to the
assuming party.
Section 3.7. Collection of Certain Term Asset Payments. With respect to any
Series or Class of Certificates, the Trustee (or the Administrative Agent if
specified in the related Series Supplement) shall make reasonable efforts to
collect all payments required to be made pursuant to the terms of the Term
Assets or any related Credit Support Instruments in a manner consistent with the
terms of this Agreement, such Term Assets and any related Credit Support
Instruments.
Section 3.8. Collections by Sub-Administrative Agent. Unless otherwise
provided in the applicable Series Supplement, in the event a Sub-Administrative
Agent is administering one or more Term Assets pursuant to a Sub-Administration
Agreement, the Sub-Administrative Agent shall be required to immediately direct
the Trustee to deposit into an Eligible Account established by such
Sub-Administrative Agent (a "Sub-Administration Account") any amounts collected
with respect thereto, and not later than the Business Day after receipt thereof,
all such amounts shall be deposited into the related Certificate Account.
Section 3.9. Certificate Account. (a) For each Series of Certificates, the
Trustee shall establish and maintain one or more Eligible Accounts
(collectively, the "Certificate Account"), held in trust for the benefit of the
Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Certificate Account and in all proceeds
thereof. With respect to each Series of Certificates, the Certificate Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Certificateholders. With respect to each Series of Certificates, the
Trustee shall deposit or the Administrative Agent, if any, specified in the
applicable Series Supplement shall direct the Trustee to deposit or cause to be
deposited in the Certificate Account no later than the Business Day after
receipt thereof all amounts collected with respect to the Term Assets, any
Credit Support and all Liquidation Proceeds related to such Series including:
(i) all payments on account of principal of such Term Assets;
(ii) all payments on account of interest on such Term Assets;
(iii) all payments on account of premium (if any) on such Term Assets;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section 4.3; and
(vi) any interest or investment income earned on funds deposited in
the related Accounts.
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Unless otherwise specified in the applicable Series Supplement, it is
understood and agreed that payments in the nature of prepayment or redemption
penalties, late payment charges or assumption fees which may be received by the
Trustee or any Administrative Agent shall be deposited by the Trustee or the
Administrative Agent, as applicable, in the Certificate Account and shall not be
retained by the Trustee or the Administrative Agent for its own account.
If, at any time, the Certificate Account for any Series ceases to be an
Eligible Account, the Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Rating Agency Condition
is met) establish a new Certificate Account meeting the conditions specified
above and transfer any cash and any investments on deposit in the Certificate
Account to such new Certificate Account, and from the date such new Certificate
Account is established, it shall be the Certificate Account for such Series.
(b) The Trustee shall give notice to the Administrative Agent, if any, the
Depositor and the Rating Agency of the location of each Eligible Account
constituting the Certificate Account and prior to any change thereof.
(c) The Administrative Agent, if any, shall instruct the Trustee as to, or
otherwise the Trustee shall determine, the appropriate application of Available
Funds with respect to any Distribution Date for which application is to be made
on any such Distribution Date in accordance with the terms of Section 4.1 and
the related Series Supplement.
Section 3.10. Investment of Funds in the Accounts. The Depositor (or, if so
specified in the applicable Series Supplement, the Administrative Agent), on
behalf of the Trust, may direct the Trustee to direct any depository institution
maintaining the Certificate Account or the Reserve Account, if any, for the
applicable Series and any other segregated Eligible Account the contents of
which are held for the benefit of Certificateholders of such Series (each, an
"Account") to invest the funds therein in one or more Permitted Investments
bearing interest or sold at a discount, which shall be held to maturity unless
payable on demand and which funds shall not be reinvested upon the maturity or
demand for payment of such Permitted Investment. If the Depositor (or the
Administrative Agent, if applicable) does not provide any investment directions
to the Trustee, funds held in any Account will be invested in the Permitted
Investments specified in clause (ii) of the definition thereof. Investments of
such funds shall be invested in Permitted Investments that will mature so that
such funds will be available for distribution on the Distribution Date on which
such amounts are to be applied as distributions to Certificateholders. In the
event amounts on deposit in an Account are at any time invested in a Permitted
Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
25
(y) demand same day payment of all amounts due thereunder upon a
determination by the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on deposit
in any Account.
Section 3.11. Maintenance of Credit Support. On the applicable Closing
Date, the Trustee or, if so specified in the applicable Series Supplement, the
Depositor or the Administrative Agent, shall, to the extent specified in the
applicable Series Supplement, establish and maintain, or enter into, as
applicable, in the name of the Trustee, either as a part of the related Trust or
outside it, for the benefit of the Certificateholders of the related Series, the
Credit Support specified in the applicable Series Supplement. To the extent
specified in the applicable Series Supplement, the Depositor or the
Administrative Agent, as the case may be, will make or cause to be made any
initial deposit to the Certificate Account or any Reserve Account for the
related Series as of the Closing Date. Unless the Series Supplement for a given
Series provides otherwise, if a Reserve Account exists for such Series,
collections with respect to the Term Assets for such Series not distributed to
the Certificateholders of such Series shall be deposited in the Reserve Account.
The Reserve Account, if any, will not be a part of or otherwise includible in
the Trust but will be held for the benefit of the Credit Support Provider.
Amounts on deposit in the Reserve Account and amounts available pursuant to
any other Credit Support for such Series shall be applied by the Trustee to make
distributions of principal of and premium (if any) and interest on the
Certificates of such Series as required pursuant to Section 4.1 and the
applicable Series Supplement to the extent that funds are not otherwise
available for such purpose. If specified in such Series Supplement, immediately
after each Distribution Date, amounts on deposit in the Reserve Account for such
Series in excess of a specified amount shall be paid to the Person so specified
in such Series Supplement.
Section 3.12. Realization Upon Defaulted Term Assets. (a) If:
(i) default is made in the payment of any installment of interest on
any Term Asset when the same becomes due and payable, and such default
continues unremedied for the period specified in the indenture or other
authorizing document for such Term Asset (or, if no such period is
specified, five days) after receipt by the Term Assets Issuer of notice
thereof from the Trustee or receipt by the Term Assets 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 Term Asset when the same becomes due
and payable, and such default continues unremedied for the period specified
in the indenture or other authorizing document for such Term Asset (or, if
no such period is specified, thirty (30) days) after receipt by the Term
Assets Issuer of notice thereof from the Trustee or receipt by the Term
Assets Issuer and the Trustee of notice thereof from the Holders of
Outstanding Certificates representing at least 25% of the Voting Rights;
and the Term Assets 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 Term
26
Assets for principal and interest, with interest upon the overdue principal, at
the rate borne by the Term Assets 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 Term Assets Issuer or other obligor upon the
Term Assets and collect in the manner provided by law out of the property of the
Term Assets Issuer or other obligor upon the Term Assets wherever situated, the
moneys adjudged or decreed to be payable, unless otherwise directed by Holders
of the Required Percentage -- Direction of the Trustee. In connection therewith,
the Trustee shall use its best reasonable efforts in accordance with such normal
and customary procedures it shall deem necessary or advisable, and shall have
the power and authority, acting alone, to do any and all things in connection
therewith and the administration of the Trust as it may deem necessary or
advisable.
(b) In the event that the Trustee receives money or other property in
respect of the Term Assets (other than a scheduled interest or principal payment
or the payment of any redemption premium on or with respect to the earlier
redemption of the Term Assets) as a result of a payment default on the Term
Assets 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 10.5
hereof) to the Depository or, if the Certificates are not then held by the
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, in proportion to the Certificate Principal Balance or
Accreted Amount, as applicable, of each class of Outstanding Certificates,
together with accrued interest to the date of distribution, if applicable, and
within each class pro rata by Certificate Principal Balance. Property received,
other than cash, shall be liquidated by the Trustee in a commercially reasonable
manner and the proceeds thereof, after deduction of all reasonable costs of such
liquidation, distributed in cash, only to the extent necessary to avoid
distribution of fractional securities.
(c) The Trustee (or, if and under the circumstances specified in the
applicable Series Supplement, the Administrative Agent), on behalf of the
Certificateholders, shall assert claims under each applicable Credit Support
Instrument, and shall take such reasonable steps, in addition to those described
in Section 3.12(a), as are necessary to receive payment or to permit recovery
thereunder with respect to any defaulted Term Assets, subject in all cases to
the provisions of Article VI hereof in the case of the Administrative Agent and
Article VIII hereof in the case of the Trustee.
(d) Unless otherwise provided in a Series Supplement, if the Administrative
Agent or the Trustee, as applicable, is unable to obtain full recovery in
respect of a defaulted Term Asset and any related Credit Support Instrument
pursuant to Section 3.12(c), the Administrative Agent or the Trustee, as
applicable, shall follow or cause to be followed such
27
normal practices and procedures as it deems necessary or advisable to realize
upon such defaulted Term Asset and such Credit Support Instrument, subject in
all cases to the provisions of Article VI hereof in the case of the
Administrative Agent and Article VIII hereof in the case of the Trustee.
Section 3.13. Retained Interest. The Retained Interest, if any, in any Term
Asset shall initially be held by the Person so specified in the related Series
Supplement as and to the extent specified in Schedule A thereof. With respect to
each Term Asset, the Retained Interest shall be deducted by the Trustee, at the
written direction of the Administrative Agent, if any, or the Depositor from
applicable collections in respect of such Term Asset. Unless otherwise provided
in the applicable Series Supplement, collections in respect of Retained Interest
shall not be deposited in the Certificate Account for the applicable Series and
shall not constitute a part of the Trust for such Series, but shall instead be
distributed to the holder of such Retained Interest, provided that the Series
Supplement for any Series with respect to which there is a Retained Interest may
provide that, notwithstanding the terms contained herein, commingled amounts
received in respect of assets inclusive of Term Assets and Retained Interest may
initially be deposited in a separate and discrete Eligible Account established
by the Trustee at the direction of the Administrative Agent, if any, or the
Depositor and such Series Supplement may provide for additional terms relating
thereto. Unless otherwise provided in the applicable Series Supplement, after
deduction of all applicable fees as provided for in this Agreement, on each
Distribution Date the Trustee shall allocate on a pari passu basis any partial
recovery on a Term Asset between (a) the Retained Interest, if any, and (b)
distributions to Certificateholders of the applicable Series.
Section 3.14. Administrative Agent's Compensation and Reimbursement. (a) As
compensation for its activities, the Administrative Agent, if any, specified in
the applicable Series Supplement shall be entitled to the Administrative Fee,
which shall be paid on the dates, in the amounts, under the circumstances and in
the manner specified in the applicable Series Supplement.
(b) If, and only to the extent, provided in a Series Supplement, the
Administrative Agent, if any, shall be required to pay from its compensation
hereunder or otherwise all expenses incurred in connection with the Trust for
the related Series and its administration of the Term Assets for the related
Series, including payment of the fees and disbursements of the Trustee
(including the reasonable fees and expenses of its counsel and independent
accountants allocable to such Series), payment of expenses incurred in
connection with distributions and reports to Certificateholders of such Series,
payment of premiums on Credit Support Instruments related to such Series and
other expenses specified in such Series Supplement; provided, however, that
neither the Administrative Agent, if any, nor the Trustee will be responsible
for any Federal, State, local or foreign income and franchise taxes, if any, and
any interest or penalties with respect thereto, assessed on the Trust for such
Series.
Section 3.15. Statement as to Compliance. An Administrative Agent appointed
pursuant to the applicable Series Supplement, if any, will deliver to the
Trustee, the Depositor and the Rating Agency not later than 90 days following
the end of each fiscal year of the Administrative Agent an Officer's Certificate
executed by two of its Executive Officers stating,
28
as to each signatory thereof, that (i) a review of the activities of the
Administrative Agent during the preceding year and of performance under this
Agreement has been made under such officer's supervision and (ii) to the best of
such officer's knowledge, based on such review, the Administrative Agent has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof.
Copies of such statement received by the Trustee shall be provided by the
Trustee to any Certificateholder upon request at the Certificateholder's
expense.
Section 3.16. Independent Public Accountants' Administration Report. Unless
otherwise specified in the Series Supplement, within four months from the end of
each 12-month period beginning with the period specified in the Series
Supplement for a given Series of Certificates, either the Administrative Agent,
if any, specified in the Series Supplement, or otherwise the Trustee shall cause
a firm of nationally recognized independent public accountants (who may also
render other services to the Administrative Agent, if any, the Trustee or the
Depositor) to furnish a report addressed to the Trustee, the Depositor, the
Rating Agency and each Credit Support Provider for such Series, if any, to the
effect that such firm has examined certain documents and records relating to the
administration of the Term Assets and related Credit Support deposited in or
held by the applicable Trust during the preceding 12-month period (or, in the
case of the first such report, during the period from the Closing Date to the
date specified in the applicable Series Supplement), which report should enable
the recipients thereof to determine whether such administration was conducted in
accordance with the terms of this Agreement and the related Series Supplement.
Such report shall identify any exceptions found during the examination.
Such report will also indicate that the firm is independent of the
Administrative Agent, if any, and the Trustee within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
Copies of such statement received by the Trustee shall be provided by the
Trustee to any Certificateholder of such Series upon request without charge to
the requesting Certificateholder.
The firm of independent public accountants shall be entitled to
compensation in consideration for its duties hereunder in the manner specified
in the applicable Series Supplement.
Section 3.17. Access to Certain Documentation. The Trustee and the
Administrative Agent, if any, shall provide to any Federal, State or local
regulatory authority that may exercise authority over any Certificateholder
access to the documentation regarding the Term Assets required by applicable
laws and regulations. Such access shall be afforded without charge, but only
upon reasonable request and during normal business hours at the offices of the
Trustee and Administrative Agent, if any, designated by each of them. In
addition, access to the documentation regarding the Term Assets related to a
given Series (or Class within such Series) will be provided to any
Certificateholder of such Series (or Class) upon reasonable
29
request during normal business hours at the offices of the Trustee and
Administrative Agent designated by each of them at the expense of the
Certificateholder requesting such access.
Section 3.18. Duties of the Administrative Agent. Notwithstanding any other
provision of this Agreement, with respect to any Series, the applicable Series
Supplement may provide that any Administrative Agent appointed pursuant to such
Series Supplement shall have no rights and no duties, obligations or liabilities
except as provided in such Series Supplement and herein.
Section 3.19. Depositor to Furnish Names and Addresses of Holders to
Trustee. The Depositor shall furnish or cause to be furnished to the Trustee not
more than five days before each Distribution Date, and at such other times as
the Trustee may request in writing, a list, in such form as the Trustee may
reasonably require, to the extent such information is in the possession or
control of the Depositor or any of its paying agents, of the Holders of
Certificates as of the close of business on the applicable record date of the
Term Assets; provided, however, that so long as the Trustee maintains the
Certificate Register, no such list shall be required to be furnished.
Section 3.20. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Certificates contained in
the most recent list furnished to the Trustee as provided in Section 3.19 and
the names and addresses of Holders of Certificates received by the Trustee in
its capacity as Certificate registrar. The Trustee may destroy any list
furnished to it as provided in such Section 3.19 upon receipt of a new list so
furnished.
(b) Holders shall have the right to communicate pursuant to TIA Section
312(b) with other Holders with respect to their rights under this Agreement or
under the Certificates.
(c) The Depositor, the Trustee and the Certificate registrar shall have the
protection of TIA Section 312(c).
Section 3.21. Reports by Trustee. If required by TIA Section 313(a), within
60 days after December 31 of each year, the Trustee shall mail to (i) each
Holder as required by TIA Section 313(c) and (ii) the Depositor, a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b). A copy of any report delivered pursuant to
this Section 3.21 shall, at the time of its mailing to Holders and the
Depositor, be filed by the Trustee with the Commission and each stock exchange,
if any, on which the Certificates are listed. The Depositor shall notify the
Trustee if and when the Certificates are listed on any stock exchange.
30
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions. On each Distribution Date for a given Series of
Certificates, the Trustee shall apply funds in the Certificate Account for such
Series in the manner and priority set forth in the Series Supplement for such
Series. Notwithstanding any other provisions in this Agreement, the right of the
Holder of any Certificate to receive any such distributions in the manner and
priority set forth in the Series Supplement for such Series and to institute
suit for the enforcement of any such payment on or after the date such payment
is payable, shall not be impaired without the consent of such Holder.
Section 4.2. Reports to Certificateholders. Unless otherwise specified in
the applicable Series Supplement, on the next Business Day following each such
Distribution Date the Trustee or the Administrative Agent, if any, as specified
in such Series Supplement, shall forward or cause to be forwarded to the
Depositor, each Certificateholder of such Series and such other Persons as may
be specified in such Series Supplement, a statement setting forth:
(i) the amount of the distribution on such Distribution Date to
Certificateholders of each Class of such Series allocable to principal of
and premium, if any, and interest on the Certificates of each such Class;
and the amount of aggregate unpaid interest accrued or accreted as of such
Distribution Date;
(ii) in the case of each Class of Floating Rate Certificates of such
Series, the respective Floating Pass Through Rate applicable to each such
Class on such Distribution Date, as calculated in accordance with the
method specified in such Certificates and the related Series Supplement;
(iii) the amount of compensation received by any Administrative Agent
and such other customary information as the Trustee or Administrative
Agent, as applicable, deems necessary or desirable, or that any such
Certificateholder reasonably requests, to enable such Certificateholders to
prepare their tax returns;
(iv) if the Series Supplement provides for Advances, the aggregate
amount of Advances, if any, included in such distribution, and the
aggregate amount of unreimbursed Advances, if any, at the close of business
on such Distribution Date;
(v) the aggregate stated principal amount and, if applicable, notional
amount of the Term Assets related to such Series, the current rating
assigned by the Rating Agency thereon and the current interest rate or
rates thereon at the close of business on such Distribution Date;
(vi) the aggregate Certificate Principal Balance (or Notional Amount,
if applicable) of each Class of such Series at the close of business on
such Distribution Date; and
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(vii) as to any Series (or any Class within such Series) for which
Credit Support has been obtained, the amount or notional amount of coverage
of each element of Credit Support (and rating, if any, thereof) included
therein as of the close of business on such Distribution Date.
In the case of information furnished pursuant to subclauses (i) and (iii) above,
the amounts shall be expressed as a Dollar amount (or the equivalent thereof in
any other Specified Currency) per minimum denomination of Certificates or for
such other specified portion thereof. Within a reasonable period of time after
the end of each calendar year, the Trustee shall furnish to each person who at
any time during each such calendar year was a Certificateholder a statement
containing the information set forth in subclauses (i) and (iii) above,
aggregated for such calendar year or the applicable portion thereof during which
such person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as are from time to time in effect.
Section 4.3. Advances. (a) Unless otherwise specified in the applicable
Series Supplement, an Administrative Agent appointed pursuant to the Series
Supplement shall have no obligation to make Advances (as defined below) with
respect to the Term Assets or in favor of the Holders of any Series (or Class
within such Series) of Certificates. However, as and to the extent provided in
the Series Supplement for a given Series, and subject to the terms of paragraphs
(b) and (c) of this Section 4.3, on or prior to each Distribution Date, such
Administrative Agent shall advance or cause to be advanced in immediately
available funds to the Trustee for deposit in the Certificate Account for such
Series an advance (each, an "Advance") in an amount equal, unless otherwise
specified in the related Series Supplement, to the aggregate of distributions of
principal, premium (if any) and interest due on the Term Assets for such Series
(or Class) during the related Collection Period, to the extent remaining unpaid
at the time of such Advance. In satisfaction of its obligation to make such
Advances, the Administrative Agent shall make such Advances from either (i) its
own funds or (ii) funds with respect to the Term Assets for such Series or Class
on deposit in the Certificate Account for such Series, if any, that do not
constitute Available Funds with respect to such Distribution Date; provided,
however, that, to the extent the Administrative Agent shall have made Advances
from funds on deposit in the applicable Certificate Account, the Administrative
Agent shall immediately deposit funds equal to the aggregate amount of such
Advances into such Certificate Account on any subsequent Distribution Date to
the extent that amounts on deposit in such Certificate Account on such
Distribution Date are less than the amount of distributions required to be made
on such Distribution Date pursuant to Section 4.1 and the related Series
Supplement. The Administrative Agent may recover Advances from late collections
received by the Trustee on the applicable Term Assets, proceeds from any
applicable Credit Support, if any, and Liquidation Proceeds with respect to the
Term Assets for such Series or Class, as specified in the related Series
Supplement, as to which any such unreimbursed Advance was made.
(b) Notwithstanding any provision herein to the contrary, no Advance shall
be required to be made hereunder if the Administrative Agent reasonably believes
that it will be unable to recover such Advance from related late collections,
Credit Support proceeds, if any, or Liquidation Proceeds with respect to the
applicable Term Assets. It is further understood and
32
agreed that the Administrative Agent shall not be obligated to make any Advances
in respect of reductions in the amount of collections on the Term Assets due to
bankruptcy proceedings with respect to the Term Assets or the obligors thereof.
(c) Notwithstanding any provision herein to the contrary, unless otherwise
provided in the Series Supplement for a given Series, any Advances made in
respect of any Term Assets related to such Series (or Class within such Series)
that are subsequently deemed by the Administrative Agent to be nonrecoverable
from related late collections, Credit Support proceeds, if any, or Liquidation
Proceeds may be reimbursed to the Administrative Agent through the application
of amounts on deposit in the Certificate Account for such Series allocable to
any of such Term Assets prior to the distributions of interest, premium (if any)
and principal with respect to the Certificates of such Series or Class.
Section 4.4. Compliance with Withholding Requirements. If any withholding
tax is imposed on the payment (or allocations of income) to any
Certificateholder, such tax shall reduce the amount otherwise distributable to
such Holder. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to any Holder sufficient funds for the payment
of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings), or that the Trustee may otherwise determine it is obligated
to withhold under applicable law or regulation. The amount of any withholding
tax imposed with respect to any Holder shall be treated as cash distributed to
such Holder at the time it is withheld by the Trustee and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution, the Trustee may in its sole discretion
withhold such amounts in accordance with this Section 4.4. If any Holder wishes
to apply for a refund of any such withholding tax, the Trustee shall reasonably
cooperate with such Holder in making such claim so long as such Holder agrees to
reimburse the Trustee for any out-of-pocket expenses incurred. The Trustee shall
use reasonable efforts to give notice to each Holder of any such withholding
requirement at least 10 days prior to the date of the payment from which amounts
are required to be withheld.
Section 4.5. Optional Exchange. (a) The terms and conditions, if any, upon
which Certificates of any Series (or Class within such Series) may be exchanged
for a pro rata portion of the Term Assets of the related Trust will be specified
in the related Series Supplement; provided that any right of exchange shall be
exercisable only to the extent that the Depositor provides upon the Trustee's
request an Opinion of Counsel that (i) such exchange would not be inconsistent
with the Depositor's and the Trust's continued satisfaction of the applicable
requirements for exemption under Rule 3a-7 (or other applicable rule or
exemption) under the Investment Company Act of 1940, as amended, and all
applicable rules, regulations and interpretations thereunder and (ii) such
exchange would not cause the Trust to fail to qualify as a grantor trust for
federal income tax purposes. Such terms may relate to, but are not limited to,
the following:
(1) a requirement that the exchanging Holder tender to the Trustee
Certificates of each Class within such Series;
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(2) a minimum Certificate Principal Balance or Notional Amount, as
applicable, with respect to Certificates being tendered for exchange by a
single Holder;
(3) a requirement that the Certificate Principal Balance or Notional
Amount, as applicable, of each Certificate tendered for exchange be an
integral multiple of an amount specified in such Series Supplement;
(4) specified dates during which a Holder may effect such an exchange
(each, an "Optional Exchange Date");
(5) limitations on the right of an exchanging Holder to receive any
benefit upon exchange from any Credit Support or Term Assets which are not
debt securities; and
(6) adjustments to the value of the proceeds of any exchange based
upon required prepayment of future expense allocations and if provided for
in the applicable Series Supplement the establishment of a reserve for any
anticipated Extraordinary Trust Expenses.
(b) Unless otherwise provided in the applicable Series Supplement, no
Certificate may be exchanged pursuant to the preceding paragraph unless the
Trustee has received at least 30 days but not more than 45 days prior to an
Optional Exchange Date in accordance with delivery instructions specified in the
applicable Series Supplement (i) such Certificate with the form entitled "Option
to Elect Exchange" on the reverse thereof duly completed, or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc., the Depositary
(in accordance with its normal procedures) or a commercial bank or trust company
in the United States setting forth the name of the Holder of such Certificate,
the Certificate Principal Balance or Notional Amount of such Certificate to be
exchanged and the Certificate number or a description of the tenor and the terms
of such Certificate, a statement that the option to elect exchange is being
exercised thereby and an assurance that the Certificate to be exchanged with the
form entitled "Option to Elect Exchange" on the reverse of the Certificate duly
completed will be received by such Trustee not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter, and
such Certificate and form duly completed must be received by such Trustee by
such fifth Business Day. Any tender of a Certificate by the Holder thereof for
exchange shall be irrevocable. Unless otherwise provided in the applicable
Series Supplement, the exchange option may be exercised pursuant to this Section
by the Holder of a Certificate for less than the Certificate Principal Balance
or Notional Amount of such Certificate as long as the Certificate Principal
Balance or Notional Amount remaining Outstanding after such exchange is an
authorized denomination and all other exchange requirements set forth in the
related Series Supplement are satisfied. Upon such partial exchange, such
Certificate shall be cancelled and a new Certificate or Certificates for the
remaining Certificate Principal Balance or Notional Amount thereof shall be
issued (which, in the case of any Certificate, shall be in the name of the
Holder of such exchanged Certificate).
(c) Upon the completion of any such Optional Exchange, the Trustee shall
give prompt written notice thereof to the Rating Agency.
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ARTICLE V
The Certificates
Section 5.1. The Certificates. The Certificates of any Series (or Class
within such Series) will be issued in fully registered form as Certificates and
shall be substantially in the form of the exhibits with respect thereto attached
to the applicable Series Supplement. The aggregate Certificate Principal Balance
or Notional Amount of Certificates which may be authenticated and delivered
under this Agreement is unlimited.
The Certificates may be issued in one or more Series, each of which Series
may be issued in one or more Classes, with such further particular designations
added or incorporated in such title for the Certificates of any particular
Series or Class within such Series as the Board of Directors may determine. Each
Certificate shall bear upon its face the designation so selected for the Series
and Class to which it belongs. All Certificates of the same Series and Class
shall be identical in all respects except for the denominations thereof. All
Certificates of all Classes within any one Series at any time Outstanding shall
be identical except for differences among the Certificates of the different
Classes within such Series specified in the applicable Series Supplement. Except
as otherwise provided in a Series Supplement, all Certificates of a particular
Series (and all Classes within such Series) issued under this Agreement shall be
in all respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions of
this Agreement.
Each Series (and all Classes within such Series) of Certificates shall be
created by a Series Supplement authorized by the Board of Directors and
establishing the terms and provisions of such Series. The several Series may
differ as between Series and any Class may vary as between the other Classes
within any given Series in respect of any of the following matters:
(1) designation of such Series and Class;
(2) the dates on which or periods during which the Certificates of
such Series and Class may be issued;
(3) the number of Classes, the maximum Certificate Principal Balance
or Notional Amount of Certificates of each Class that may be issued and any
priorities or subordination among Classes of a Series with respect to
distributions from the Trust;
(4) for each Class of Certificates, the Pass Through Rate and, in the
case of each Class of Floating Rate Certificates, the method for
calculating such Pass Through Rate;
(5) the terms of the Letter of Credit, if any, or of the Surety Bond,
if any, or of any other Credit Support for the benefit of the
Certificateholders of such Series or Class or group of Classes;
35
(6) the places, if any, in addition to or instead of the Corporate
Trust Office of the Trustee (in the case of Certificates), where the
principal of (and premium, if any) and interest on Certificates of such
Series and Class shall be distributable;
(7) the authorized denominations (if other than $100,000 and integral
multiples of $1,000 in excess thereof) with respect to such Series or
Class;
(8) the Collection Periods, the Distribution Dates and the Scheduled
Final Distribution Dates for such Series and Class;
(9) the types of Term Assets that will be included in the Trust for
such Series and the manner and priorities of allocating distributions with
respect to collections of principal (and premium, if any) and interest
payments allocable to such Term Assets among Holders of Certificates of
different Classes (including whether the Certificates of any such Class are
to be entitled to receive principal distributions with disproportionate,
nominal or no interest distributions, or interest distributions with
disproportionate, nominal or no principal distributions, and, in each case,
the applicable terms thereof);
(10) the amount, if any, to be deposited on the Closing Date in the
Certificate Account for such Series;
(11) the manner in which the Reserve Account, if any, is to be funded,
the amount, if any, to be deposited therein on the Closing Date and the
Requisite Reserve Amount, if any, for such Series or Class;
(12) the terms of any Guaranteed Investment Contract Granted as part
of the related Trust;
(13) the provisions, if any, for the optional exchange of the
Certificates of such Series by the Certificateholders of such Series and
the periods within which or the dates on which, and the terms and
conditions on which, such Certificates may be exchanged in whole or in part
for a pro rata portion of the Term Assets related to such Series;
(14) whether the Certificates of such Series or Class are to be issued
as Discount Certificates and the amount of discount with which such
Certificates may be issued;
(15) whether the Certificates of such Series or Class are to be issued
in whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Securities and the
terms and conditions, if any, upon which interests in such Global Security
or Securities may be exchanged in whole or in part for the individual
Certificates represented thereby;
(16) [reserved.];
(17) [reserved.];
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(18) if other than Dollars, the Currency in which Certificates of such
Series or Class shall be denominated or in which distributions of the
principal of (and premium, if any) and interest on such Certificates may be
made and any other terms concerning such payment;
(19) if the principal of (and premium, if any) or interest on
Certificates of such Series or Class are to be distributable, at the
election of the Depositor or a Holder thereof, in a Currency other than
that in which such Certificates are denominated or distributable without
such election, the periods within which and the terms and conditions upon
which such election may be made and the time and the manner of determining
the exchange rate between the Currency in which such Certificates are
denominated or distributable without such election and the Currency in
which such Certificates are to be distributed if such election is made;
(20) any additional Administrative Agent Termination Events or
representations, warranties or covenants provided for with respect to
Certificates of such Series;
(21) provisions with respect to the terms for which the definitions
set forth in Article I permit or require further specification in the
related Series Supplement, including:
(a) "Accounting Date";
(b) "Accreted Amount";
(c) "Administrative Agent";
(d) "Administrative Fee";
(e) "Available Funds";
(f) "Basic Documents";
(g) "Calculation Agent";
(h) "Call Premium Percentage";
(i) "Closing Date";
(j) "Collection Period";
(k) "Corporate Trust Office";
(l) "Credit Support";
(m) "Credit Support Instrument";
(n) "Credit Support Provider";
(o) "Cut-off Date";
(p) "Depositary";
(q) "Depository Agreement";
(r) "Discount Certificates";
(s) "Distribution Date";
(t) "Event of Default";
(u) "Extraordinary Trust Expense";
(v) "Final Scheduled Distribution Date";
(w) "Fixed Pass Through Rate";
(x) "Floating Pass Through Rate";
(y) "Floating Rate Certificate";
(z) "Global Securities";
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(aa) "Grant";
(ab) "Guaranteed Investment Contract";
(ac) "Letter of Credit";
(ad) "Limited Guarantor";
(ae) "Limited Guaranty";
(af) "Notional Amount";
(ag) "Optional Exchange Date";
(ah) "Pass Through Rate";
(ai) "Permitted Investments";
(aj) "Place of Distribution";
(ak) "Purchase Price";
(al) "Qualified Substitute Term Asset";
(am) "Rating Agency";
(an) "Rating Agency Condition";
(ao) "Record Date";
(ap) "Required Interest";
(aq) "Required Premium";
(ar) "Required Principal";
(as) "Required Percentage";
(at) "Required Rating";
(au) "Requisite Reserve Amount";
(av) "Retained Interest";
(aw) "Scheduled Final Distribution Date";
(ax) "Specified Currency";
(ay) "Surety Bond";
(az) "Term Asset Provider";
(ba) "Term Asset Purchase Agreement";
(bb) "Term Assets";
(bc) "Term Assets Issuer";
(bd) "Term Assets Schedule";
(be) "Trust";
(bf) "Trustee";
(bg) "Trust Termination Event";
(bh) "Voting Rights";
(22) rights and remedies provided to any Credit Support Provider with
respect to all or a portion of the Trust for such Series or Class;
(23) any restrictions on the sale and transfer of the Certificates,
including restrictions arising out of the Employee Retirement Income
Security Act of 1974, as amended, or the Code; and
(24) any other provisions expressing or referring to the terms and
conditions upon which the Certificates of such Series or Class are to be
issued under this Agreement that do not prevent such Certificates from
receiving the Required Rating.
38
In the absence of any specification pursuant to this Section 5.1 with
respect to Certificates of any Series, the Certificates of such Series shall be
issuable only as Certificates in denominations of $1,000 and in integral
multiples thereof and shall be payable only in Dollars.
A different Trustee and an Administrative Agent may be appointed by the
Depositor for each Series of Certificates prior to the issuance of such Series
provided that the Rating Agency Condition is met. If the initial Trustee is to
be other than First Trust of New York, National Association, or there is to be
an Administrative Agent, then such Series Supplement shall provide for the
appointment of such Trustee or such Administrative Agent or both, as applicable,
of such Series and shall add or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder and of the Term Assets; it being understood that nothing
contained herein or in such Series Supplement shall constitute the Trustees for
different Series as co-trustees for the same Series or the administrative agents
for different Series as co-administrative agents for the same Series, and that
each Trustee shall be a trustee of a trust or trusts separate and apart from any
trust or trusts hereunder of any other Trustee, and that each Administrative
Agent shall be an administrative agent of a Trust separate and apart from any
other Trust. Upon final appointment of any new Trustee or Administrative Agent,
the Trustee shall provide a notice of such appointment to the Rating Agency not
later than 15 days following such appointment.
Section 5.2. Execution, Authentication and Delivery. (a) The Certificates
shall be executed by the Depositor by its President, its Treasurer, one of its
Vice Presidents, or one of its Finance Officers. The signature of any of these
officers may be manual or facsimile. Certificates bearing the manual or
facsimile signature of individuals who were at any time the proper officers of
the Depositor shall be binding, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates.
(b) Each Certificate shall be dated as of the later of the date specified
in the related Series Supplement and the date of its authentication.
(c) No Certificate shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in one of the forms provided for
herein executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Agreement.
Section 5.3. Temporary Certificates. Pending the preparation of Definitive
Certificates of any Series (or Class within such Series), the Depositor may
execute, and upon receipt of a Depositor Order, the Trustee shall authenticate
and deliver temporary Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as may be authorized by such Depositor Order.
Any such temporary
39
Certificate may be in global form, representing all or a portion of the
Outstanding Certificates of such Series or Class. Every such temporary
Certificate shall be executed by the Depositor and shall be authenticated and
delivered by the Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the Definitive Certificate or Definitive
Certificates in lieu of which it is issued.
If temporary Certificates of any Series (or Class within such Series) are
issued, the Depositor will cause Definitive Certificates of such Series or Class
to be prepared without unreasonable delay and (a) after the preparation of
Definitive Certificates of such Series or Class, the temporary Certificates of
such Series or Class shall be exchangeable for Definitive Certificates of such
Series or Class upon surrender of the temporary Certificates of such Series or
Class at the office of the Trustee in a Place of Distribution for such Series or
Class, without charge to the Holder, except as provided in Section 5.4 in
connection with a transfer and (b) upon surrender for cancellation of any one or
more temporary Certificates of any Series or Class within such Series the
Depositor shall execute and the Trustee shall authenticate and deliver in
exchange therefor Definitive Certificates with a like Certificate Principal
Balance or Notional Amount, as applicable, of the same Series (or Class within
such Series) of authorized denominations and of like tenor. Until so exchanged,
temporary Certificates of any Series (or Class within such Series) shall in all
respects be entitled to the same benefits under this Agreement as Definitive
Certificates of such Series or Class, except as otherwise specified in the
applicable Series Supplement with respect to the payment of interest on Global
Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.3 or Section 5.4, the temporary
Global Security shall be endorsed by the Trustee to reflect the reduction of the
aggregate Certificate Principal Balance or Notional Amount, as applicable,
evidenced thereby, whereupon the aggregate Certificate Principal Balance or
Notional Amount, as applicable, of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
Section 5.4. Registration; Registration of Transfer and Exchange. The
Trustee shall cause to be kept a register for each Series of Certificates (the
registers maintained in such office and in any other office or agency of the
Trustee in a Place of Distribution being herein sometimes collectively referred
to as the "Certificate Register") in which a transfer agent and registrar (which
may be the Trustee) (the "Certificate Registrar") shall provide for the
registration of Certificates and the registration of transfers and exchanges of
Certificates. The Trustee is hereby initially appointed Certificate Registrar
for the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided; provided, however, that the Trustee may appoint
one or more co-Certificate Registrars. Upon any resignation of any Certificate
Registrar, the Depositor shall promptly appoint a successor or, in the absence
of such appointment, assume the duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the Depositor as
Certificate Registrar, the Depositor will give the Trustee prompt written notice
of the appointment of a Certificate Registrar and of the location, and any
change in the location, of the Certificate
40
Register, and the Trustee shall have the right to rely upon a certificate
executed on behalf of the Certificate Registrar by an Executive Officer thereof
as to the names and addresses of the Holders of the Certificates and the
principal amounts and numbers of such Certificates.
Upon surrender for registration of transfer of any Certificate of any
Series (or Class within such Series) at the office or agency of the Trustee, if
the requirements of Section 8-401(1) of the Uniform Commercial Code are met to
the Depositor's satisfaction, the Depositor shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, of a
like Series, Class and aggregate Certificate Principal Balance or Notional
Amount, as applicable.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for the individual Certificates represented
thereby, a Global Security representing all or a portion of the Certificates of
a Series (or Class within such Series) may not be transferred except as a whole
by the Depositary for such Series or Class to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such Series or Class or a nominee of such successor Depositary.
At the option of the Holder, Certificates of any Series (or Class within
such Series) (other than a Global Security, except as set forth below) may be
exchanged for other Certificates of the same Series or Class of any authorized
denomination or denominations of like tenor and aggregate Certificate Principal
Balance or Notional Amount, as applicable, upon surrender of the Certificates to
be exchanged at the office or agency of the Trustee maintained for such purpose.
Whenever any Certificates are so surrendered for exchange, the Depositor
shall execute and the Trustee shall authenticate and deliver the Certificates
that the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Certificates of a Series (or Class
within such Series) notifies the Depositor that it is unwilling or unable to
continue as Depositary for the Certificates of such Series or Class or if at any
time the Depositary for the Certificates of such Series or Class shall no longer
be eligible under Section 5.9(b), the Depositor shall appoint a successor
Depositary with respect to the Certificates of such Series or Class. If a
successor Depositary for the Certificates of such Series or Class is not
appointed by the Depositor within 90 days after the Depositor receives such
notice or becomes aware of such ineligibility, the Depositor's election pursuant
to Section 5.1 shall no longer be effective with respect to the Certificates of
such Series or Class and the Depositor will execute, and the Trustee, upon
receipt of a Depositor Order for the authentication and delivery of individual
Certificates of such Series or Class, will authenticate and deliver individual
Certificates of such Series or Class in an aggregate Certificate Principal
Balance or Notional Amount, as applicable, equal to the aggregate Certificate
Principal Balance or Notional Amount, as applicable, of the Global Security or
Securities representing Certificates of such Series or Class in exchange for
such Global Security or Securities.
41
The Depositor may at any time and in its sole discretion determine that
individual Certificates of any Series (or Class within such Series) issued in
the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Depositor shall execute, and
the Trustee, upon receipt of a Depositor Order for the authentication and
delivery of individual Certificates of such Series or Class, shall authenticate
and deliver, individual Certificates of such Series or Class in an aggregate
Certificate Principal Balance or Notional Amount, as applicable, equal to the
aggregate Certificate Principal Balance or Notional Amount, as applicable, of
the Global Security or Securities representing Certificates of such Series or
Class in exchange for such Global Security or Securities.
If specified by the Depositor pursuant to Section 5.1 with respect to a
Series (or Class within such Series) of Certificates, the Depositary for such
Series may surrender a Global Security for such Series or Class in exchange in
whole or in part for individual Certificates of such Series or Class on such
terms as are acceptable to the Depositor and such Depositary. Thereupon, the
Depositor shall execute, and the Trustee, upon receipt of a Depositor Order,
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new individual
Certificate or Certificates of the same Series or Class, of any authorized
denomination as requested by such Person in an aggregate Certificate
Principal Balance or Notional Amount, as applicable, equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the aggregate Certificate Principal
Balance or Notional Amount, as applicable, of the surrendered Global
Security and the aggregate Certificate Principal Balance or Notional
Amount, as applicable, of individual Certificates delivered to Holders
thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Depositor shall execute, and the Trustee, upon receipt of a Depositor Order,
will authenticate and deliver individual Certificates in registered form in
authorized denominations.
Upon the exchange of a Global Security for individual Certificates, such
Global Security shall be cancelled by the Trustee. Individual Certificates
issued in exchange for a Global Security pursuant to this Section 5.4 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its Participants, any
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Certificates to the Persons in whose names such Certificates
are so registered.
All Certificates issued upon any registration of transfer or exchange of
Certificates shall constitute complete and indefeasible evidence of ownership in
the Trust related to such Certificates and be entitled to the same benefits
under this Agreement as the Certificates surrendered upon such registration of
transfer or exchange.
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Every Certificate presented or surrendered for registration of transfer or
exchange shall (if so required by the Depositor, the Trustee or the Certificate
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Depositor, the Trustee and the Certificate
Registrar, duly executed, by the Holder thereof or his attorney duly authorized
in writing, with such signature guaranteed by a brokerage firm or financial
institution that is a member of a Securities Approved Medallion Program such as
Securities Transfer Agents Medallion Program (STAMP), Stock Exchange Medallion
Program (SEMP) or New York Stock Exchange Inc. Medallion Signature Program
(MSP).
No service charge shall be made to a Holder for any registration of
transfer or exchange of Certificates, but the Depositor may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Certificates,
other than exchanges pursuant to Section 5.3 not involving any transfer.
Section 5.5. Mutilated, Destroyed, Lost and Stolen Certificates. If (i) any
mutilated Certificate is surrendered to the Trustee at its Corporate Trust
Office (in the case of Certificates) or (ii) the Depositor and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Depositor and the Trustee such
security or indemnity as they may require to hold each of them and any Paying
Agent harmless, and neither the Depositor nor the Trustee receives notice that
such Certificate has been acquired by a bona fide purchaser, then the Depositor
shall execute and the Trustee, upon receipt of a Depositor Order, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate a new Certificate of the same Series and
Class of like tenor, form, terms and principal amount, bearing a number not
contemporaneously Outstanding.
Upon the issuance of any new Certificate under this Section, the Depositor
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Certificate of any Series or Class issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust related to such Series, whether or not the destroyed, lost or stolen
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Certificates of that Series or Class duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.6. Distribution of Interest; Interest Rights Preserved. (a)
Interest on any Certificate that is payable and is punctually paid or duly
provided for on any Distribution Date shall be distributed to the Person in
whose name such Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the related Record Date
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notwithstanding the cancellation of such Certificate upon any transfer or
exchange subsequent to such related Record Date. The distribution of interest on
Certificates shall be made at the Corporate Trust Office (except as otherwise
specified pursuant to Section 5.1) or, at the option of the Trustee, by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Certificate Register or, if provided pursuant to Section 5.1 and
in accordance with arrangements satisfactory to the Trustee, at the option of
the Holder by wire transfer to an account designated by the Holder.
(b) Subject to the foregoing provisions of this Section 5.6, each
Certificate delivered under this Agreement upon transfer of or in exchange for
or in lieu of any other Certificate shall carry the rights to interest accrued
and undistributed, and to accrue, that were carried by such other Certificate.
(c) All computations of interest due with respect to any Certificate of any
Series or Class within such Series shall be made as specified in the Series
Supplement applicable to that particular Series or Class of Certificates.
(d) With respect to any computations or calculations to be made under this
Agreement, the applicable Series Supplement and the Certificates, except as
otherwise provided, (i) all percentages resulting from any calculation of
accrued interest will be rounded, if necessary, to the nearest 1/100,000 of 1%
(.0000001), with five one-millionths of a percentage point rounded upward, and
(ii) all currency amounts will be rounded to the nearest one-hundredth of a unit
(with .005 of a unit being rounded upward).
(e) Notwithstanding any other provisions in this Agreement, the right of
the Holder of any Certificate to receive any of the payments described above in
this Section 5.6, and to institute suit for the enforcement of any such payment
on or after the date such payment is payable, shall not be impaired without the
consent of such Holder.
Section 5.7. Persons Deemed Owners. The Depositor, the Trustee and the
Administrative Agent, if any, and any agent of the Depositor, the Trustee or the
Administrative Agent, if any, may treat the Person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions of principal of (and premium, if any) and (subject to Section 5.6)
interest, if any, on such Certificate and for all other purposes whatsoever,
whether or not such Certificate be overdue, and neither the Depositor, the
Trustee, the Administrative Agent, if any, nor any agent of the Depositor, the
Trustee nor the Administrative Agent, if any, shall be affected by notice to the
contrary. All distributions made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys distributable upon such Certificate.
None of the Depositor, the Trustee, the Administrative Agent, if any, or
any of their agents will have any responsibility or liability for any aspect of
the records relating to or distributions made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
44
In connection with any notice or other communication to be provided to
Holders pursuant to this Agreement by the Trustee with respect to any consent or
other action to be taken by Holders, the Trustee shall establish a record date
for such consent or other action and in the case of Global Certificates, give
the Depository notice of such record date not less than 15 calendar days in
advance of such record date to the extent possible. Such record date shall be
the later of thirty (30) days prior to the first solicitation of such consent or
other action or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 3.19 hereof.
Section 5.8. Cancellation. Unless otherwise specified pursuant to Section
5.1 for Certificates of any Series, all Certificates surrendered for payment,
redemption, transfer or exchange shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
No Certificates shall be authenticated in lieu of or in exchange for any
Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement.
Section 5.9. Global Securities. (a) If the Series Supplement pursuant to
Section 5.1 provides that a Series (or Class within such Series) of Certificates
shall be represented by one or more Global Securities, then the Depositor shall
execute and the Trustee shall authenticate and deliver one or more Global
Securities that (i) shall represent an aggregate initial Certificate Principal
Balance or Notional Amount, as applicable, equal to the aggregate initial
Certificate Principal Balance or Notional Amount, as applicable, of the
Certificates of such Series or Class to be represented by such one or more
Global Securities, (ii) shall be registered, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for the
individual Certificates represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
No Holder of a Certificate of such Series or Class will receive a
Definitive Certificate representing such Holder's interest in such Certificate
or Certificates, except as provided in Section 5.11. Unless and until
definitive, fully registered Certificates (the "Definitive Certificates") have
been issued to Holders of such Series or Class pursuant to Section 5.11:
(i) the provisions of this Section 5.9 shall be in full force and
effect;
(ii) the Certificate Registrar and the Trustee shall be entitled to
deal with the Depositary for all purposes of this Agreement (including the
distribution of principal of, and premium, if any, and interest on the
Certificates and the giving of instructions or directions hereunder) as the
sole Holder of the Certificates of such Series or Class, and shall have no
obligation to the owners of beneficial interests in such Series or Class
(collectively, the "Certificate Owners");
45
(iii) to the extent that the provisions of this Section 5.9 conflict
with any other provisions of this Agreement, the provisions of this Section
5.9 shall control;
(iv) the rights of Certificate Owners of such Series or Class shall be
exercised only through the Depositary and shall be limited to those
established by law and agreements between such Certificate Owners and the
Depositary or its Participants; and
(v) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Holders of Certificates of such
Series or Class evidencing a specified percentage of the aggregate Voting
Rights of such Series or Class, the Depositary shall be deemed to represent
such percentage only to the extent that it has received instructions to
such effect from Certificate Owners of such Series or Class or Participants
in such Depositary's system owning or representing, respectively, such
required percentage of the beneficial interest in the Certificates of such
Series or Class and has delivered such instructions to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as such Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
Section 5.10. Notices to Depositary. Whenever a notice or other
communication to the Holders of a Series or Class within such Series represented
by one or more Global Securities is required under this Agreement, unless and
until Definitive Certificates for such Series or Class shall have been issued to
such Certificate Owners pursuant to Section 5.11, the Trustee shall give all
such notices and communications specified herein to be given to Holders of the
Certificates of such Series to the Depositary, and shall have no obligation to
the Certificate Owners.
Section 5.11. Definitive Certificates. If in respect of a Series (or Class
within such Series) represented by one or more Global Securities (i) the
Depositor advises the Trustee in writing that the Depositary is no longer
willing or able to properly discharge its responsibilities with respect to the
Certificates of such Series or Class and the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system for such Series or
Class through the Depositary or (iii) after the occurrence of an Administrative
Agent Termination Event, Certificate Owners representing beneficial interests
aggregating at least a majority (or such other Required Percentage--Definitive
Certificates that may be specified in a Series Supplement) of the Voting Rights
of the Certificates of such Series or Class advise the Depositary in writing
that the continuation of a book-entry system for such Series or Class through
the Depositary is no longer in the best interests of the Certificate Owners of
such Series or Class, then the Depositary shall notify all Certificate Owners or
Participants in the Depositary's system with respect to such Series or Class and
the Trustee of the occurrence of any such event and of the availability of
46
Definitive Certificates for such Series or Class to Certificate Owners of such
Series or Class requesting the same. Upon surrender to the Trustee of the Global
Securities of such Series or Class by the Depositary, accompanied by
registration instructions, the Depositor shall execute and the Trustee shall
authenticate the Definitive Certificates of such Series or Class in accordance
with the instructions of the Depositary. None of the Depositor, the Certificate
Registrar or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates of such Series
or Class, the Trustee shall recognize the holders of the Definitive Certificates
of such Series or Class as Holders.
Section 5.12. Currency of Distributions in Respect of Certificates.
(a) Except as otherwise specified pursuant to Section 5.1 for Certificates
of any Series (or Class within such Series), distributions of the principal of
(and premium, if any) and interest on Certificates of such Series or Class will
be made in Dollars.
(b) For purposes of any provision of the Agreement where the Holders of
Outstanding Certificates may perform an act that requires that a specified
percentage of the aggregate Voting Rights of the Certificates of all Series
perform such act and for purposes of any decision or determination by the
Trustee of amounts due and not distributed for the principal of (and premium, if
any) and interest on the Certificates of all Series in respect of which moneys
are to be disbursed ratably, the principal of (and premium, if any) or notional
amount of, as applicable, and interest on the Outstanding Certificates
denominated in a Foreign Currency will be the amount in Dollars based upon
exchange rates, determined as specified pursuant to Section 5.1 for Certificates
of such Series, as of the date for determining whether the Holders entitled to
perform such act have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(c) With respect to Certificates of any Series (or Class within such
Series), any decision or determination to be made regarding exchange rates shall
be made by an Exchange Rate Agent appointed by the Depositor; provided that such
Exchange Rate Agent shall accept such appointment in writing and the terms of
such appointment shall be acceptable to the Trustee and shall, in the opinion of
the Depositor at the time of such appointment, require such Exchange Rate Agent
to make such determination by a method consistent with the method provided in
the applicable Series Supplement for the making of such decision or
determination. All decisions and determinations of such Exchange Rate Agent
regarding exchange rates shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Depositor, the Trustee and all Holders of the Certificates of
such Series or Class.
(d) If distributions in respect of a Certificate are required to be made in
a Specified Currency other than Dollars and such currency is unavailable due to
the imposition of exchange controls or other circumstance beyond the control of
the Trustee, the Administrative Agent, if any, and the Depositor or is no longer
used by the government of the country issuing such Specified Currency or is no
longer commonly used for the settlement of transactions by public institutions
of or within the international banking community, then all distributions in
47
respect of such Certificate shall be made in Dollars until such Specified
Currency is again so used in the manner specified in the related Series
Supplement.
Section 5.13. Conditions of Authentication and Delivery of New Series.
Certificates of a new Series may be issued at any time and from time to time
after the execution and delivery of this Agreement. The Depositor shall execute
and deliver Certificates of such Series to the Trustee and the Trustee shall
authenticate and deliver such Certificates upon a Depositor Order and upon
delivery by the Depositor to the Trustee of the following:
(1) Board Resolution. A Board Resolution (or action by a Person authorized
by Board Resolution) authorizing the execution, authentication and
delivery of the Certificates and specifying the Series, the Classes
within such Series and their respective Final Scheduled Distribution
Dates, priorities as to distributions of principal, premium (if any)
and interest, aggregate initial Certificate Principal Balances and
Notional Amounts, if any, and Pass Through Rates of, if any, each
Class of such Series of Certificates to be authenticated and delivered
and the method of calculation thereof.
(2) Series Supplement. A Series Supplement consistent with the applicable
provisions of this Agreement, accompanied by a Board Resolution (or
action by a Person authorized by Board Resolution) authorizing such
Series Supplement (and, in the case of the first Series to be
authenticated and delivered hereunder, authorizing this Agreement).
(3) Certificates of the Depositor.
(a) An Officer's Certificate of the Depositor, dated as of the
Closing Date, to the effect that the Depositor is not in breach
of this Agreement and that the issuance of the Certificates
applied for will not result in any breach of any of the terms,
conditions, or provisions of, or constitute a default under, the
Depositor's Certificate of Incorporation or bylaws, or any
indenture, mortgage, deed of transfer or other agreement or
instrument to which the Depositor is a party or by which it or
its property is bound or any order of any court or administrative
agency entered in any Proceeding to which the Depositor is a
party or by which it or its property may be bound or to which it
or its property may be subject.
(b) An Officer's Certificate of the Depositor, dated as of the
Closing Date, to the effect that attached thereto are true and
correct copies of letters signed by the Rating Agency (or other
evidence satisfactory to the Trustee) and confirming that the
related Certificates have received the Required Rating.
48
(4) Requirements of Series Supplement. Such other funds, accounts,
documents, certificates, agreements, instruments or opinions as may be
required by the terms of the Series Supplement creating such Series.
If all the Certificates of a Series are not to be originally issued at the
same time, then the documents required to be delivered pursuant to this Section
5.13 must be delivered only once, prior to the authentication and delivery of
the first Certificate of such Series; provided, however, that any subsequent
Depositor Order to the Trustee to authenticate Certificates of such Series upon
original issuance shall constitute a representation and warranty by the
Depositor that, as of the date of such request, the statements made in the
Officer's Certificates delivered pursuant to this Section 5.13 shall be true and
correct as if made on such date.
Section 5.14. Appointment of Paying Agent. The Trustee may appoint one or
more paying agents (each, a "Paying Agent") with respect to the Certificates of
any Series. Any such Paying Agent shall be authorized to make distributions to
Certificateholders of such Series from the Certificate Account for such Series
pursuant to the provisions of the applicable Series Supplement and shall report
the amounts of such distributions to the Trustee. Any Paying Agent shall have
the revocable power to withdraw funds from such Certificate Account for the
purpose of making the distributions referred to above. The Trustee may revoke
such power and remove the Paying Agent if the Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initially
be the Trustee and any co-paying agent chosen by the Depositor and acceptable to
the Trustee, including, if and so long as any Series or Class within such Series
is listed on the Luxembourg Stock Exchange and such exchange so requires, a
co-paying agent in Luxembourg or another European city. Any Paying Agent shall
be permitted to resign as Paying Agent upon 30 days' notice to the Trustee. In
the event that the Trustee shall no longer be the Paying Agent, the Trustee
shall appoint a successor or additional Paying Agent. The Trustee shall cause
each successor to act as Paying Agent to execute and deliver to the Trustee an
instrument in which such successor or additional Paying Agent shall agree with
the Trustee that (i) it will hold all sums, if any, held by it for distribution
to the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be distributed to such Certificateholders
and (ii) it will give the Trustee notice of any default by any obligor on the
applicable Series of Certificates or on the Term Assets. The Paying Agent shall
return all unclaimed funds to the Trustee and upon removal shall also return all
funds in its possession to the Trustee. The provisions of Sections 8.1, 8.2,
8.3, 8.5 and 8.9 shall apply to the Trustee also in its role as Paying Agent,
for so long as the Trustee shall act as Paying Agent. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise. Notwithstanding anything contained herein to the
contrary, the appointment of a Paying Agent pursuant to this Section 5.14 shall
not release the Trustee from the duties, obligations, responsibilities or
liabilities arising under this Agreement other than with respect to funds paid
to such Paying Agent.
Section 5.15. Authenticating Agent. (a) The Trustee may appoint one or more
Authenticating Agents (each, an "Authenticating Agent") with respect to the
Certificates of any Series which shall be authorized to act on behalf of the
Trustee in authenticating such
49
Certificates in connection with the issuance, delivery and registration of
transfer or exchange of such Certificates. Whenever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
Depositor and the Administrative Agent, if any. Notwithstanding anything
contained herein to the contrary, the appointment of an Authenticating Agent
pursuant to this Section 5.15 shall not release the Trustee from the duties,
obligations, responsibilities or liabilities arising under this Agreement.
(b) Any institution succeeding to the corporate agency business of any
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filing of any power or any further act on the part of the Trustee
or such Authenticating Agent. An Authenticating Agent may at any time resign by
giving notice of resignation to the Trustee and to the Depositor. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving notice
of termination to such Authenticating Agent and to the Depositor. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
an Authenticating Agent shall cease to be acceptable to the Trustee or the
Depositor, the Trustee promptly may appoint a successor Authenticating Agent.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless acceptable to the
Administrative Agent, if any, and the Depositor. The Trustee agrees to pay to
each Authenticating Agent from time to time reasonable compensation for its
services under this Section. The provisions of Section 8.1, 8.2, 8.3 and 8.9
shall be applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the Certificates
may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
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This is one of the Certificates described in the Trust Agreement and the
related Series Supplement.
____________________________
as Authenticating Agent
for the Trustee,
By__________________________
Authorized Signatory
Section 5.16. Events of Default. If any Event of Default shall occur and be
continuing with respect to any class of Certificates, then, and in each and
every case, the Trustee shall exercise any rights in respect of the related Term
Assets as provided in the applicable Series Supplement.
Section 5.17. Control by Holders. The Holders of Outstanding Certificates
representing the Required Percentage -- Direction of Trustee shall, subject to
provision being made for indemnification against costs, expenses and liabilities
in a form satisfactory to the Trustee, have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Trustee
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 Section 8.7, the Trustee need not take any action that
it determines might cause it to incur any liability or might materially
adversely affect the rights of any Holders not consenting to such action.
Section 5.18. Waiver of Past Defaults.
The Holders of Outstanding Certificates representing the Required
Percentage -- Direction of Trustee may waive any past default and its
consequences except (i) 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 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.
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ARTICLE VI
The Depositor and the Administrative Agent
Section 6.1. Preparation and Filing of Exchange Act Reports; Obligations of
the Depositor and the Administrative Agent. (a) The Administrative Agent, if
any, shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by this Agreement and the related Series
Supplement. The Trustee shall:
(i) on behalf of the Trust, prepare for signature by the Depositor and
file with the Commission, following the execution thereof by the Depositor,
within the time period set forth below, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe), if any, which the Depositor on behalf of the Trust
may be required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act (collectively, "Reports") with respect to the Trust.
The names of such Reports and the dates on which they are required to be
filed with the Commission are as follows:
(A) Form 8-K, in substantially the form previously provided by
the Depositor to the Trustee, within 15 calendar days after the
Closing Date and each Distribution Date, and within the time advised
to the Trustee by the Depositor if the filing of Form 8-K is necessary
for any other reason;
(B) Form 10-K, in substantially the form previously provided by
the Depositor to the Trustee, within 90 calendar days after December
31 of each year; and
(C) such other Reports as the Depositor requests the Trustee to
prepare and file from time to time as may be required pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) receive from the Depositor, 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) receive from the Depositor and transmit by mail to all Holders
described in TIA Section 313(c), in the manner and to the extent provided
therein, such summaries of any information, documents and reports required
to be filed by the Depositor and received pursuant to clauses (i) and (ii)
of this Section 6.1(a), if any, as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) The Depositor shall deliver to the Trustee, not less often than
annually, an Officer's Certificate signed by an Executive Officer who is the
principal executive officer,
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principal financial officer or principal accounting officer of the Depositor,
dated as of the date set forth in the Series Supplement 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
Executive Officer's supervision; and
(ii) to the best of such Executive Officer's knowledge, based on such
review, the Depositor has fulfilled all of its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such Executive 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.
(c) If and only if the Series Supplement provides for the pledge of the
Term Assets 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.
(d) If and only if the Series Supplement provides for the pledge of the
Term Assets 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.
(e) If and only if the Series Supplement provides for the pledge of the
Term Assets to the Trustee (and not merely the transfer, assignment, conveyance
and sale, without recourse, thereof to the Trustee),
53
(i) whenever any property or securities are to be released from the
lien of this Agreement, the Depositor shall furnish to the Trustee an
Officer's Certificate of the Depositor certifying or stating the opinion of
each Person signing such certificate as to the fair value (within 90 days
of such release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will not
impair the security under this Agreement in contravention of the provisions
hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an
Officer's Certificate of the Depositor certifying or stating the opinion of
any signatory thereof as to the matters described in clause (i) above, the
Depositor shall also furnish to the Trustee an Independent Certificate as
to the same matters if the fair value of the property or securities and of
all other property or securities released from the lien of this Agreement
since the commencement of the then current calendar year, as set forth in
the certificates required by clause (i) above and this clause (ii), equals
10% or more of the principal amount of the Outstanding Certificates, but
such certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate of the Depositor is less than $25,000 or less
than one percent of the then principal amount of the Outstanding
Certificates.
(iii) prior to the deposit with the Trustee of any securities that are
to be made the basis for the authentication and delivery of Certificates,
the withdrawal of cash constituting a part of the trust estate or the
release of any property or securities subject to the lien of this
Agreement, the Depositor shall furnish to the Trustee an Officer's
Certificate of the Depositor certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an
Officer's Certificate of the Depositor described in clause (iii) above, the
Depositor shall also deliver to the Trustee an Independent Certificate as
to the same matters, if the fair value to the Depositor of the securities
to be so deposited and of all other such securities made the basis of any
such withdrawal or release since the commencement of the then current
fiscal year of the Depositor, as set forth in the certificates delivered
pursuant to clause (iii) above and this clause (iv), is 10% or more of the
principal amount of the Outstanding Certificates, but such a certificate
need not be furnished with respect to any securities so deposited, if the
fair value thereof to the Depositor as set forth in the related Officer's
Certificate of the Depositor is less than $25,000 or less than one percent
of the 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.
54
(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.
(f) Upon any application or request by the Depositor to the Trustee to take
any action under the provisions of this Agreement, which action is subject to
the satisfaction of a condition precedent (including any covenants compliance
with which constitutes a condition precedent), the Depositor shall furnish to
the Trustee: (i) an Officer's Certificate stating that all conditions precedent,
if any, provided for in this Agreement relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of the TIA, except that,
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Agreement, no
additional certificate or opinion need be furnished. Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such
signatory has made such examination or 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 6.2. Merger or Consolidation of the Depositor or the Administrative
Agent. (a) Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation, and the Administrative Agent, if any,
will keep in full effect its existence, rights and franchises under the laws of
the jurisdiction of its incorporation or association. The Depositor and the
Administrative Agent, if any, each will obtain and preserve its qualification to
do business as a foreign corporation or association in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Term Assets and
to perform its respective duties under this Agreement.
55
(b) The Depositor and an Administrative Agent, if any, may consolidate or
merge with or into any other Person, provided that:
(i) the Person (if other than the Depositor or Administrative Agent,
as applicable) formed by or surviving such consolidation or merger shall
expressly assume, by an agreement supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
performance or observance of every agreement and covenant of this Agreement
on the part of the Depositor or Administrative Agent, as applicable, to be
performed or observed, all as provided herein and in the applicable Series
Supplement or Supplements;
(ii) immediately after giving effect to such transaction, no
Administrative Agent Termination Event or event which with the passage of
time or notice or both would become an Administrative Agent Termination
Event shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction; and
(iv) the Depositor or Administrative Agent, as applicable, shall have
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such supplemental
agreement comply with this Article VI and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Section 6.3. Limitation on Liability of the Depositor and the
Administrative Agent. (a) Unless otherwise expressly specified in this Agreement
or a Series Supplement, neither the Administrative Agent, if any, nor the
Depositor shall be under any obligation to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties hereunder
or under a Series Supplement or in the exercise of any of its rights or powers
if reasonable grounds exist for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(b) Neither the Depositor, an Administrative Agent, if any, nor any of the
directors, officers, employees or agents of the Depositor or such Administrative
Agent shall be under any liability to any Trust or the Certificateholders of any
Series for any action taken, or for refraining from the taking of any action, in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, any such
Administrative Agent or any such person against any breach of warranties,
representations or covenants made herein, or against any specific liability
imposed on such Administrative Agent pursuant hereto, or against any liability
which would otherwise be imposed by reason of wilful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder.
Neither the Depositor nor an Administrative Agent, if any, shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its
56
respective duties under this Agreement and, in its opinion, does not involve it
in any expense or liability; provided, however, that either of the Depositor or
such Administrative Agent may in its discretion undertake any such action which
it may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. The legal expenses and costs of such action and any liability
resulting (except any loss, liability or expense incurred by reason of wilful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder) shall be
allocated as specified in the applicable Series Supplement.
Section 6.4. Limitation on Resignation of the Administrative Agent. An
Administrative Agent appointed pursuant to the applicable Series Supplement
shall not resign from the obligations and duties hereby imposed on it except (a)
upon appointment by the Trustee of a successor administrative agent and receipt
by the Trustee of a letter from the Rating Agency that such a resignation and
appointment will satisfy the Rating Agency Condition or (b) upon a determination
that its duties hereunder are no longer permissible under applicable law. Any
such determination pursuant to clause (b) of the preceding sentence permitting
the resignation of the Administrative Agent shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee and the Depositor. No
resignation of an Administrative Agent shall become effective until the Trustee
or a successor administrative agent shall have assumed the Administrative
Agent's responsibilities, duties, liabilities (other than those liabilities
arising prior to the appointment of such successor) and obligations under this
Agreement.
Section 6.5. Rights of the Depositor in Respect of the Administrative
Agent. An Administrative Agent appointed pursuant to the applicable Series
Supplement shall afford the Depositor and the Trustee, upon reasonable notice,
during normal business hours, access to all records maintained by the
Administrative Agent in respect of its rights and obligations hereunder and
access to officers of the Administrative Agent responsible for such obligations.
Upon request, the Administrative Agent shall furnish to the Depositor and the
Trustee the Administrative Agent's most recent financial statements and such
other information relating to its capacity to perform its obligations under this
Agreement as the Administrative Agent possesses. To the extent such information
is not otherwise available to the public, the Depositor and the Trustee shall
not disseminate any information obtained pursuant to the preceding two sentences
without the Administrative Agent's written consent, except as required pursuant
to this Agreement to the extent that it is appropriate to do so (i) in working
with legal counsel, auditors, taxing authorities or other governmental agencies
or (ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over the
Depositor, the Trustee or the Trust. The Depositor may, but is not obligated to,
enforce the obligations of the Administrative Agent under this Agreement and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Administrative Agent under this Agreement or
exercise the rights of the Administrative Agent under this Agreement; provided,
however, that the Administrative Agent shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Administrative Agent and is not
obligated to supervise the performance of the Administrative Agent under this
Agreement or otherwise.
57
Section 6.6. Depositor May Purchase Certificates. The Depositor may at any
time purchase Certificates in the open market or otherwise. Certificates so
purchased by the Depositor may, at the discretion of the Depositor, be held or
resold. Certificates beneficially owned by the Depositor will be disregarded for
purposes of determining whether the required percentage of the aggregate Voting
Rights has given any request, demand, authorization, direction, notice, consent
or waiver hereunder.
Section 6.7. The Administrative Agent and Other Parties. The Person serving
as an Administrative Agent, if any, appointed pursuant to the applicable Series
Supplement may be the Depositor, the Trustee or an Affiliate of either thereof,
and may have normal business relationships with the Depositor, the Trustee or
any Affiliates thereof.
Section 6.8. Preferential Collection of Claims Against Depositor. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent required by TIA
Section 311(a).
ARTICLE VII
Administrative Agent Termination Events
Section 7.1. Administrative Agent Termination Events. (a) "Administrative
Agent Termination Event", wherever used herein with respect to any Series of
Certificates, means any one of the following events:
(i) a failure by any Administrative Agent specified in the applicable
Series Supplement to remit to the Trustee, pursuant to the terms of this
Agreement, any funds in respect of collections on Term Assets, Credit
Support, if any, and Advances, if any, collected by the Administrative
Agent pursuant to the terms of this Agreement that continues unremedied for
a period of five days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Administrative Agent by the Depositor or the Trustee (in which case notice
shall be provided by telecopy), or to the Administrative Agent, the
Depositor and the Trustee by the Holders of Certificates of such Series
representing at least 25% of the aggregate Voting Rights; or
(ii) a failure on the part of any Administrative Agent specified in
the applicable Series Supplement to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Administrative Agent contained in the Certificates of such Series or in
this Agreement which continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Administrative Agent by the
Depositor or the Trustee, or to the Administrative Agent, the Depositor and
the Trustee by the Holders of Certificates of such Series representing at
least 25% of the aggregate Voting Rights; or
58
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in an involuntary case under any present or future
Federal or State bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceeding, or
for the winding up or liquidation of its affairs, shall have been entered
against the Administrative Agent, if any, specified in the applicable
Series Supplement and such decree or order shall have remained in force
undischarged or unstayed for a period of 30 days; or
(iv) any Administrative Agent specified in the applicable Series
Supplement shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to the Administrative
Agent or of or relating to all or substantially all its property; or
(v) any Administrative Agent specified in the applicable Series
Supplement shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations; or
(vi) if so specified in the related Series Supplement, any failure of
the Administrative Agent, if any, specified in the applicable Series
Supplement to make any Advances required to be made from its own funds
pursuant to Section 4.3 which continues unremedied until twelve o'clock
noon New York City time on the Business Day immediately following the day
on which such Advance was required to have been made; or
(vii) any additional Administrative Agent Termination Event that may
be specified with respect to such Series in the related Series Supplement.
Each Series Supplement shall specify as to each of the foregoing clauses
requiring a vote of Holders of different Classes the circumstances and manner in
which the aggregate Voting Rights applicable to each such clause shall be
calculated.
(b) Unless otherwise provided in the applicable Series Supplement and
provided an Administrative Agent shall have been appointed pursuant to the
applicable Series Supplement, so long as an Administrative Agent Termination
Event with respect to the related Series of Certificates shall have occurred and
be continuing, the Depositor or the Trustee may, and at the written direction of
the Holders of Certificates evidencing not less than the "Required
Percentage--Administrative Agent Termination" of the aggregate Voting Rights,
the Trustee shall, by notice in writing to such Administrative Agent (and to the
Depositor if given by the Trustee or to the Trustee if given by the Depositor)
terminate all the rights and obligations of the Administrative Agent specified
in the applicable Series Supplement in its capacity as Administrative Agent with
respect to such Series under this Agreement, to the extent permitted by law, and
in and to the Term Assets relating to such Series (other than any Retained
Interest
59
of the Administrative Agent, if any) and the proceeds thereof. On or after the
receipt by such Administrative Agent of such written notice, all authority and
power of the Administrative Agent under this Agreement relating to such Series,
whether with respect to the Certificates (other than as a Holder of any
Certificate) of such Series or the Term Assets relating to such Series or
otherwise, shall pass to and be vested in the Trustee pursuant to and under this
Section 7.1(b), and without limitation, the Trustee is hereby authorized and
empowered, as attorney-in-fact or otherwise, to execute and deliver, on behalf
of and at the expense of the Administrative Agent, any and all documents and
other instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of such Term Assets and
related documents, or otherwise. The Administrative Agent, if any, specified in
the applicable Series Supplement agrees promptly (and in any event not later
than ten Business Days subsequent to such notice) to provide the Trustee with
all documents and records requested by it to enable it to assume the functions
of the Administrative Agent under this Agreement relating to such Series, and to
cooperate with the Trustee in effecting the termination of the Administrative
Agent's responsibilities and rights under this Agreement relating to such
Series, including the transfer within one Business Day to the Trustee for
administration by it of all cash amounts and investments which shall at the time
be or should have been credited by the Administrative Agent to the Certificate
Account relating to such Series or thereafter be received with respect to such
Term Assets; provided, however, that the Administrative Agent shall continue to
be entitled to receive all amounts accrued or owing to it under this Agreement
on or prior to the date of such termination, whether in respect of Advances or
otherwise, and shall continue to be entitled to the benefits of Section 6.3
notwithstanding any such termination.
Section 7.2. Trustee to Act; Appointment of Successor. On and after the
time an Administrative Agent, if any, specified in the applicable Series
Supplement receives a notice of termination pursuant to Section 7.1, the Trustee
shall be the successor in all respects to the Administrative Agent in its
capacity as Administrative Agent under this Agreement or the applicable Series
Supplement and the transactions set forth or provided for herein and shall be
subject and entitled to all the rights, responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Administrative Agent
(except for any representations or warranties of the Administrative Agent under
this Agreement and except as otherwise provided herein or in the applicable
Series Supplement) by the terms and provisions hereof including the
Administrative Agent's obligation, if any, to make Advances pursuant to Section
4.3; provided, however, that the Trustee shall not be obligated to make such
Advances pursuant to Section 4.3; and provided further, that any failure to
perform such duties or responsibilities caused by the Administrative Agent's
failure to provide information required by Section 7.1 shall not be considered a
default by the Trustee as successor to the Administrative Agent hereunder. As
compensation therefor, the Trustee shall be entitled to the amounts relating to
the Term Assets of a given Series to which such Administrative Agent would have
been entitled if the Administrative Agent had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act or if the Holders of Certificates of such
Series evidencing not less than the Required Percentage--Administrative Agent
Termination of the aggregate Voting Rights, so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, an Administrative Agent acceptable to the Rating Agency (such
acceptance to be evidenced by satisfaction of the Rating
60
Agency Condition with respect to such appointment) and having a net worth of not
less than $15,000,000, as the successor to such Administrative Agent under this
Agreement with respect to such Series in the assumption of all or any part of
the responsibilities, duties or liabilities of such Administrative Agent under
this Agreement with respect to such Series. The Trustee, the Depositor and any
such successor Administrative Agent may agree upon the compensation to be paid
with respect thereto; provided, however, that in no event shall such
compensation be greater than the compensation payable to the Administrative
Agent under this Agreement. No appointment of a successor Administrative Agent
under this Agreement shall be effective until the assumption by the successor
Administrative Agent of all the responsibilities, duties and liabilities placed
on the Administrative Agent hereunder and under the related Series Supplement.
Pending appointment of a successor Administrative Agent under this Agreement,
the Trustee shall act in such capacity as and to the extent hereinabove
provided.
Section 7.3. Notification to Certificateholders. (a) Upon any such
termination pursuant to Section 7.2 or appointment of a successor Administrative
Agent, the Trustee shall give prompt written notice thereof to
Certificateholders of the affected Series in the manner provided in Section
10.5.
(b) Within 60 days after the occurrence of any Administrative Agent
Termination Event or event which but for the lack of notice or passage of time
or both would constitute an Administrative Agent Termination Event with respect
to any Series, the Trustee shall transmit by mail to all Certificateholders of
such Series notice of each such Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event which is known to the Trustee, unless
such Administrative Agent Termination Event or event which but for lack of
notice or passage of time or both would constitute an Administrative Agent
Termination Event shall have been cured or waived.
Section 7.4. Waiver of Administrative Agent Termination Events. Unless
otherwise provided in the applicable Series Supplement, the Holders of
Certificates of the related Series evidencing not less than the Required
Percentage--Waiver of the aggregate Voting Rights may, on behalf of all
Certificateholders of such Series, (i) if so provided in the applicable Series
Supplement, waive compliance by the Depositor, the Trustee or the Administrative
Agent, if any, with certain restrictive provisions of this Agreement as set
forth in such Series Supplement prior to the time such compliance is required
and (ii) waive any Administrative Agent Termination Event or event which but for
lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series; provided, however, that an
Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event with respect to such Series regarding the failure to distribute, in
accordance with the terms of this Agreement, amounts received with respect to
any Term Asset or any such event with respect to such Series in respect of a
covenant or provision of this Agreement the modification or amendment of which
would require the consent of the Holders of all outstanding Certificates of such
Series, may be waived only by all the Certificateholders of such Series. Upon
any such waiver of an Administrative Agent Termination Event or event which but
for lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with
61
respect to such Series, such Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. No such waiver shall extend
to any subsequent or other Administrative Agent Termination Event or event which
but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults. (a) The Trustee, prior
to the occurrence of an Administrative Agent Termination Event or Event of
Default with respect to any Series and after the curing of all such
Administrative Agent Termination Events or Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and the related Series Supplement.
During the period an Administrative Agent Termination Event or Event of Default
with respect to any Series shall have occurred and be continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of such person's
own affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement, the Trustee shall take
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee's satisfaction, the Trustee will
provide notice thereof to the Depositor, Administrative Agent, if any, and
Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of an Administrative Agent Termination
Event or Event of Default with respect to any Series, and after the curing
of all such Administrative Agent Termination Events or Events of Default
which may have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth
62
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee or upon any
directions or information supplied by the Administrative Agent or the
Depositor that conform to the requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of the Required
Percentage--Direction of Trustee of the aggregate Voting Rights of a given
Series (or Class or group of Classes within such Series) relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement;
(iv) the Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers if there
is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it, and none of the provisions contained in this Agreement shall in any
event require the Trustee to perform, or be responsible for the manner of
performance of, any obligations of an Administrative Agent, if any,
appointed pursuant to the applicable Series Supplement, under this
Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, such an Administrative Agent in accordance with and only to the extent
provided in this Agreement;
(v) except for actions expressly authorized by this Agreement, the
Trustee shall take no actions reasonably likely to impair the interests of
the Trust in any Term Asset now existing or hereafter acquired or to impair
the value of any Term Asset now existing or hereafter acquired;
(vi) except as expressly provided in this Agreement, the Trustee shall
not engage in any activity other than those required or authorized by the
terms of this Agreement. In particular, after the Closing Date the Trustee
shall not purchase or otherwise acquire any additional securities, modify
or permit the modification of any Trust Asset or otherwise vary the
investment of the Certificateholders or incur or modify any obligations,
(i) except as expressly required or permitted by the terms of this
Agreement or (ii) unless the Trustee obtains, at the expense of the
Certificateholders, an Opinion of Counsel to the effect that such
acquisition, incurrence or modification will not cause the Trust (unless
otherwise indicated in a related Series Supplement) to fail to be
classified as a grantor trust for federal income tax purposes; and
(vii) in the event that the Paying Agent or the Certificate Registrar
shall fail to perform any obligation, duty or agreement in the manner or on
the day required to be performed
63
by the Paying Agent or Certificate Registrar, as the case may be, under
this Agreement, the Trustee shall be obligated promptly upon its knowledge
thereof to perform such obligation, duty or agreement in the manner so
required.
(d) The Trustee shall have the legal power to exercise all of the rights,
powers and privileges of holders of the Term Assets in which the Certificates
evidence an interest. However, neither the Trustee (except as specifically
provided herein or in the TIA) nor the Depositor shall be under any obligation
whatsoever to appear in, prosecute or defend any action, suit or other
proceeding in respect of Term Assets or Certificates.
(e) Neither the Trustee nor the Depositor shall have any obligation on or
with respect to the Term Assets, except as provided in this Article VIII with
respect to the Trustee; and their respective obligations with respect to
Certificates shall be solely as set forth in this Agreement.
(f) If there is an event of default (as defined in the indenture or other
document pursuant to which the Term Assets were issued) with respect to any Term
Asset and such default is known to the Trustee, the Trustee shall promptly give
notice to the Depository or, if the Certificates are Definitive Certificates,
directly to Holders thereof as provided in Section 10.5 hereof (and in the
manner and to the extent provided in TIA Section 313(c)) within 90 days after
such event of default occurs. Such notice shall set forth (i) the identity of
the Term Assets, (ii) the date and nature of such default, (iii) the face amount
of the obligation to which such default relates, (iv) the identifying numbers of
the Series and Class of Certificates, or any combination, as the case may be,
evidencing the obligations (or portions thereof) described above in clause
(iii), and (v) any other information which the Trustee may deem appropriate.
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.
(g) Holders of Certificates shall have no recourse against the Depositor or
the Trustee for payment defaults on the Term Assets.
Section 8.2. Certain Matters Affecting the Trustee. (a) Except as otherwise
provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such written advice or Opinion of
Counsel;
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(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto, at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
provided, however, that nothing contained herein shall relieve the Trustee
of the obligations, upon the occurrence of an Administrative Agent
Termination Event or Event of Default (which has not been cured or waived),
to exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as a prudent
man would exercise or use under the circumstances in the conduct of such
person's own affairs;
(iv) the Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(v) prior to the occurrence of an Administrative Agent Termination
Event hereunder and after the curing of all Administrative Agent
Termination Events which may have occurred, the Trustee shall not be bound
to make any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, approval, bond or other paper or
document believed by it to be genuine, unless requested in writing to do so
by Holders of the Required Percentage--Direction of Trustee of the
aggregate Voting Rights of the affected Series (or Class or Classes within
any such Series), as specified by the applicable Series Supplement;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and shall not be liable for such persons' actions
if it has selected such persons with reasonable care; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account or
Reserve Account at the direction of an Administrative Agent or the
Depositor pursuant to Section 3.10.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the
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Trustee shall be brought in its name for the benefit of all the Holders of such
Certificates, subject to the provisions of this Agreement.
Section 8.3. Trustee Not Liable for Recitals in Certificates or Term
Assets. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Certificates or in any document issued in
connection with the sale of the Certificates (other than the signature and
authentication on the Certificates). Except as set forth in Section 8.12, the
Trustee makes no representations or warranties as to the validity or sufficiency
of this Agreement or of the Certificates of any Series (other than the signature
and authentication on the Certificates) or of any Term Asset or related
document. The Trustee shall not be accountable for the use or application by the
Depositor or the Administrative Agent, if any, of any of the Certificates or of
the proceeds of such Certificates.
Section 8.4. Trustee May Own Certificates. The Trustee in its individual
capacity or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee.
Section 8.5. Trustee's Fees and Expenses; Indemnification; Undertaking for
Costs. (a) The Trustee shall be entitled to receive from the Depositor or an
affiliate of the Depositor as compensation for the Trustee's services hereunder,
trustee's fees pursuant to a separate agreement between the Trustee and the
Depositor, and shall be reimbursed for all reasonable expenses, disbursements
and advances incurred or made by the Trustee (including the reasonable
compensation, disbursements and expenses of its counsel and other persons not
regularly in its employ). The Depositor shall indemnify and hold harmless the
Trustee and its successors, assigns, agents and servants against any and all
loss, liability or reasonable expense (including attorney's fees) incurred by it
in connection with the administration of this trust and the performance of its
duties thereunder. The Trustee shall notify the Depositor promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the
Depositor shall not relieve the Depositor of its obligations hereunder. The
Depositor need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustee's own willful
misconduct, negligence or bad faith. The indemnities contained in this Section
8.5(a) shall survive the resignation or termination of the Trustee or the
termination of this Agreement.
(b) Failure by the Depositor to pay, reimburse or indemnify the Trustee
shall not entitle the Trustee to any payment, reimbursement or indemnification
from the Trust, nor shall such failure release the Trustee from the duties it is
required to perform under this Agreement. Any unpaid, unreimbursed or
unindemnified amounts shall not be borne by the Trust and shall not constitute a
claim against the Trust, but shall be borne by the Trustee in its individual
capacity.
(c) All parties to this Agreement agree, and each Holder of any Certificate
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any Proceeding for the enforcement of
any right or remedy under this Agreement, or in any Proceeding against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such Proceeding of an undertaking to pay the
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costs of such Proceeding and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such Proceeding, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section 8.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group of Holders, in
each case holding in the aggregate Outstanding Certificates representing
more than 10% of the Voting Rights; or
(iii) 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 8.6. Eligibility Requirements for Trustee. (a) The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee hereunder
shall at all times be a corporation which is not an Affiliate of the Depositor
(but may have normal banking relationships with the Depositor or any obligor
with respect to the Term Assets with respect to such Series of Certificates and
their respective Affiliates) organized and doing business under the laws of any
State or the United States, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
corporation or association publishes reports of conditions at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published. Such corporation or association must be rated in one of the four
highest rating categories by the Rating Agency.
(b) The Trustee shall comply with Section 310(b); provided, however, that
there shall be excluded from the operation of TIA Section 310(b)(1), any Series
Supplement under which other securities are outstanding evidencing ownership
interest in obligations of the Term Assets Issuer if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
Section 8.7. Resignation or Removal of the Trustee. (a) The Trustee may,
with respect to any Series of Certificates, at any time resign and be discharged
from any trust hereby created by giving written notice thereof to the Depositor,
the Administrative Agent, if any, the Rating Agency and to all
Certificateholders of such Series. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor trustee for such Series by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to such Certificateholders and the Administrative Agent, if any, by
the Depositor. If no such successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee for such Series.
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(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.6 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, which instrument shall be delivered to the Trustee so removed and to
the successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Administrative Agent, if any, by the Depositor.
(c) The Holders of Certificates of any Series representing the Required
Percentage--Removal of Trustee of the aggregate Voting Rights may at any time
remove the Trustee and appoint a successor trustee by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
and duly authorized, one complete set of which instruments shall be delivered to
the Depositor, one complete set to the Trustee so removed and one complete set
to the successor trustee so appointed. A copy of such instrument shall be
delivered to the Certificateholders and the Administrative Agent, if any, by the
Depositor.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.8.
Section 8.8. Successor Trustee. (a) Any successor trustee appointed as
provided in Section 8.7 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder (either with respect to a given Series
of Certificates or with respect to all Certificates issued under this
Agreement), with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all documents and
statements held by it hereunder, and the Depositor and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties and obligations. No
successor trustee shall accept appointment as provided in this Section unless at
the time of such acceptance such successor trustee shall be eligible under the
provisions of Section 8.6.
(b) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Depositor shall transmit notice of the succession of such
trustee hereunder to all Holders of Certificates and to the Rating Agency in the
manner provided in Section 10.5.
Section 8.9. Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or association succeeding to the trust business of the
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Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or association shall be eligible under the provisions of Section
8.6, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust for a given Series may at the time be located, the Depositor and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of such Trust, and to vest in such Person
or Persons, in such capacity, such title to such Trust, or any part thereof,
and, subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Depositor and the Trustee may consider
necessary or desirable. If the Depositor shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Administrative Agent Termination Event shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.6 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee or co-trustees or
separate trustee or trustees shall be required under Section 8.8 hereof.
Notwithstanding anything contained herein to the contrary, the appointment of a
co-trustee pursuant to this Section 8.10 shall not release the Trustee from the
duties, obligations, responsibilities or liabilities arising under this
Agreement.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to an Administrative Agent hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to such Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
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(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Appointment of Office or Agency. As specified in a Series
Supplement, the Trustee shall appoint an office or agency in the City of New
York where the Certificates may be surrendered for registration of transfer or
exchange, and presented for the final distribution with respect thereto, and
where notices and demands to or upon the Trustee in respect of the Certificates
of the related Series and this Agreement may be served.
Section 8.12. Representations and Warranties of Trustee. The Trustee
represents and warrants that:
(i) the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
association;
(ii) neither the execution nor the delivery by the Trustee of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
violate its charter documents or by-laws.
(iii) the Trustee has full power, authority and right to execute,
deliver and perform its duties and obligations as set forth herein and in
each Series Supplement to which it is a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement; and
(iv) this Agreement has been duly executed and delivered by the
Trustee and constitutes the legal, valid and binding obligation of the
Trustee, enforceable in accordance with its terms, except as enforcement
may be limited by the applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 8.13. Trustee to Act Only in Accordance With This Agreement or
Pursuant to Instructions of Certificateholders. The Trustee shall only take such
action or shall refrain from taking such action under this Agreement as directed
pursuant to a specific provision of this Agreement or, if required hereunder, by
all the Certificateholders, and the Trustee shall not otherwise act in respect
of the Trust; provided, however, that the Trustee shall not be required to take
any such action if it reasonably determines, or receives, at the expense of the
Certificateholders, an Opinion of Counsel (with copies thereof delivered to the
Certificateholders and the Depositor), that such action (i) is inconsistent with
the purpose of the Trust set forth in Section 2.7 or contrary to the terms
hereof.
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Section 8.14. Accounting and Reports to Certificateholders, Internal
Revenue Service and Others. The Trustee shall (a) maintain the books of the
Trust on a calendar year basis on the accrual method of accounting, (b) after
the close of each calendar year, deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations or otherwise, such
information for such year as may be required to enable each Certificateholder to
prepare its federal income tax returns, (c) as specifically directed in writing
by the Depositor, file such tax returns relating to the Trust and make such
elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as other than an association taxable as a
corporation for federal income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
any withholding tax as described in and in accordance with Subsection 4.4 with
respect to income or distributions to Certificateholders.
Section 8.15. Signature on Returns. Except as required by law, the Trustee
shall sign on behalf of the Trust any and all tax returns of the Trust presented
to it by the Depositor in final execution form.
ARTICLE IX
Termination
Section 9.1. Termination upon Purchase or Liquidation of All Term Assets.
(a) The respective obligations and responsibilities under this Agreement of the
Depositor, the Administrative Agent, if any, and the Trustee (other than the
obligations of any such Administrative Agent to provide for and the Trustee to
make distributions to Holders of the Certificates of any given Series as
hereafter set forth) shall terminate (subject to surviving rights of indemnity)
upon the distribution to such Holders of all amounts held in all the Accounts
for such Series or by an Administrative Agent, if any, and required to be paid
to such Holders pursuant to this Agreement on the Distribution Date coinciding
with or following the earlier to occur of (i) if and as provided in the Series
Supplement for such Series, the purchase by, and at the sole option of, the
Administrative Agent, if any, or the Depositor, as provided in the Series
Supplement for such Series, of all remaining Term Assets for such Series in the
Trust for such Series on any Distribution Date, provided that such option may be
exercised only if the aggregate principal amount of such Term Assets at the time
of any such purchase is less than 10% (or such other percentage as may be
specified in such Series Supplement) of the aggregate principal amount of all
Term Assets deposited in such Trust as of the applicable Cut-off Date and (ii)
the final payment on or other liquidation (which may include redemption or other
purchase thereof by the applicable Term Assets Issuer) (or any Advance with
respect thereto) of the last Term Asset remaining in the Trust for such Series
or the disposition of all property acquired upon foreclosure or liquidation of
any such Term Asset; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
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(b) The Depositor or an Administrative Agent, as the case may be, shall
exercise its option to purchase all the Term Assets remaining in the Trust
pursuant to clause (i) of Section 9.1(a) not later than 91 days prior to the
anticipated date of purchase of all such Term Assets, at a price as may be
specified in the applicable Series Supplement; provided, however, that such
price shall not be less than the then outstanding aggregate principal amount of
such Term Assets as determined on the date of purchase. The proceeds of such
purchase will be deposited into the Certificate Account and applied in the same
manner and priority that collections on Term Assets would be applied as provided
in the applicable Series Supplement.
(c) Written notice of any termination shall be provided as set forth in
Section 10.5.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Scheduled Distribution Date, or the Distribution
Date coinciding with or next following the earlier to occur of the occurrences
specified in clauses (i) and (ii) of Section 9.1(a), with respect to the
applicable Series of Certificates, the Trustee shall distribute to each Holder
presenting and surrendering its Certificates (i) the amount otherwise
distributable on such Distribution Date in accordance with Section 4.1 in
respect of the Certificates so presented and surrendered, if not in connection
with the purchase by an Administrative Agent or the Depositor of all the Term
Assets or (ii) as specified in the applicable Series Supplement, if in
connection with an Administrative Agent's purchase of all the remaining Term
Assets. Any funds not distributed on such Distribution Date shall be set aside
and held in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner, and shall be disposed
of in accordance with this Section 9.1 and Section 4.1 hereof. Immediately
following the deposit of funds in trust hereunder, the Trust for such Series
shall terminate.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment. (a) This Agreement may be amended from time to
time by the Depositor and the Trustee without notice to or the consent of any of
the Certificateholders for any of the following purposes: (i) to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; (ii) to add or
supplement any Credit Support for the benefit of any Certificateholders
(provided that if any such addition affects any series or class of
Certificateholders differently that any other series or class of
Certificateholders, then such addition will not, as evidenced by an opinion of
counsel, have a material adverse effect on the interests of any affected series
or class of Certificateholders); (iii) to add to the covenants, restrictions or
obligations of the Depositor, the Administrative Agent, if any, or the Trustee
for the benefit of the Certificateholders; (iv) to add, change or eliminate any
other provisions with respect to matters or questions arising under this
Agreement, so long as (x) any such amendment described in (i) through (iv) will
not, as evidenced by an opinion of counsel, cause the Trust (unless otherwise
specified in a related Series Supplement) to fail to qualify as a grantor trust
for federal income tax purposes or result
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in a sale or exchange of any Certificate for tax purposes and (y) the Trustee
has received written confirmation from each Rating Agency rating such
Certificates that such amendment will not cause such Rating Agency rating such
Certificates to reduce or withdraw the then current rating thereof; (v) to
comply with any requirements imposed by the Code; (vi) to evidence and provide
for the acceptance of appointment hereunder of a Trustee other than First Trust
Company of New York, National Association, as Trustee for a Series of
Certificates, and to add to or change any of the provisions of this Agreement as
shall be necessary to provide for or facilitate the administration of the
separate Trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 5.1 hereof; (vii) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Certificates of
one or more Series or to add or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder; or (viii) to provide for the issuance of a new Series of
Certificates pursuant to a Series Supplement issued hereunder pursuant to
Sections 5.1 and 5.13 hereof.
(b) Without limiting the generality of the foregoing, with respect to any
Series this Agreement may also be modified or amended from time to time by the
Depositor and the Trustee with the consent of the Holders of Certificates
representing the Required Percentage-- Amendment of the aggregate Voting Rights
of those Certificates to which such modification or amendment relates for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or alter the timing of, payments received on
Term Assets which are required to be distributed on any Certificate without the
unanimous consent of the Holders of such Certificates, (ii) adversely affect in
any material respect the interests of the Holders of any Series (or Class within
such Series) of Certificates in a manner other than as described in (i), without
the consent of the Holders of Certificates of such Series or Class evidencing
not less than the Required Percentage--Amendment of the aggregate Voting Rights
of such Series or Class or (iii) reduce the percentage of aggregate Voting
Rights required by (ii), as described in (ii), without the consent of the
Holders of all Certificates of such Series or Class then Outstanding; and
provided further that the Depositor shall furnish to the Trustee an Opinion of
Counsel (unless otherwise indicated in a related Series Supplement) stating
that, in the opinion of such counsel, any such amendment would not affect the
characterization of the Trust as a "grantor trust" for federal income tax
purposes. Notwithstanding any other provision of this Agreement, for purposes of
the giving or withholding of consents pursuant to this Section 10.1,
Certificates registered in the name of the Depositor, or any Affiliate thereof,
shall be entitled to Voting Rights with respect to matters affecting such
Certificates; and provided further that in the event the Rating Agency Condition
is not satisfied with respect to such modification or amendment, the Required
Percentage--Amendment shall be increased to require an aggregate percentage of
the aggregate Voting Rights in the amount specified in the applicable Series
Supplement. Notwithstanding any other provision of this Agreement, this Section
10.1(b) shall not be amended without the unanimous consent of the Holders of all
such Certificates.
(c) Promptly after the execution of any such amendment or modification, the
Trustee shall furnish a copy of such amendment or modification to each
Certificateholder of the affected Series or Class and to the Rating Agency. It
shall not be necessary for the consent of
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Certificate-holders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Section 10.2. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 10.3. Limitation on Rights of Certificateholders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
(b) No Certificateholder of a given Series shall have any right to vote
(except as expressly provided for herein) or in any manner otherwise control the
operation and management of any Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have any right by virtue
of any provision of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless (i)
such Holder previously shall have given to the Trustee a written notice of
breach and of the continuance thereof and unless also the Holders of
Certificates of such Series evidencing not less than the Required Percentage--
Remedies of the aggregate Voting Rights of such Series shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 15 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. It is understood and agreed that
the Trustee shall not be obligated to make any investigation of matters arising
under this Agreement or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any
Certificateholders unless such Certificateholders have offered to the Trustee
the reasonable indemnity referred to above. It is further understood and agreed,
and expressly covenanted by each Certificateholder of each Series with every
other Certificateholder of such Series and the Trustee, that no one or more
Holders of Certificates of such Series shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of the Certificates of such
Series, or to obtain or seek to obtain priority over or preference to any other
such Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of
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the provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 10.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely therein without reference to such
State's principles of conflicts of law to the extent that the application of the
laws of another jurisdiction would be required thereby, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
Section 10.5. Notices. All directions, demands and notices hereunder shall
be in writing and shall be delivered as set forth in the applicable Series
Supplement. Any notice required to be provided to a Holder of a Certificate
shall be given by first class mail, postage prepaid, at the last address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice.
Section 10.6. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.7. Notice to Rating Agency. The Trustee shall use its best
efforts promptly to provide notice to the Rating Agency with respect to each of
the following of which it has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Administrative Agent Termination Event;
(iii) the resignation or termination of an Administrative Agent, if
any, or the Trustee;
(iv) the repurchase or substitution of Term Assets, if any, pursuant
to Section 2.3;
(v) the final payment to Holders of the Certificates of any Class;
(vi) any change in the location of the Certificate Account; and
(vii) any event that would result in the inability of the Trustee to
make Advances.
In addition, the Trustee shall promptly furnish to each Rating Agency copies of
each report to Certificateholders described in Section 4.2 and the
Administrative Agent, if any, or otherwise the Trustee shall promptly furnish to
each Rating Agency copies of the following:
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(i) each annual statement as to compliance described in Section 3.15;
and
(ii) each annual independent public accountants' servicing report
described in Section 3.16.
Any such notice pursuant to this Section shall be in writing and shall be deemed
to have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to each Rating Agency at the
address specified in the applicable Series Supplement.
Section 10.8. Grant of Security Interest. It is the express intent of the
parties hereto that each conveyance of any Term Assets by the Depositor to the
Trustee be, and be construed as, a sale of the Term Assets by the Depositor and
not a pledge of any Term Assets by the Depositor to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
aforementioned intent of the parties, any Term Assets are held to be property of
the Depositor, then, (a) it is the express intent of the parties that such
conveyance be deemed a pledge of such Term Assets by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor and (b)(1) this
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the Uniform Commercial Code as in effect from time to time
in the State of New York, or such other State as may be specified in the related
Series Supplement; (2) the conveyance provided for in Section 2.1 hereof shall
be deemed to be a grant by the Depositor to the Trustee of a security interest
in all the Depositor's right, title and interest in and to such Term Assets and
all amounts payable to the holders of such Term Assets in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
all amounts from time to time held or invested in the applicable Certificate
Account, whether in the form of cash, instruments, securities or other property;
(3) the obligations secured by such security agreement shall be deemed to be all
the Depositor's obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to
such Term Assets and the applicable Trust; and (4) notifications to persons
holding such property, and acknowledgements, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgements, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. Accordingly, the Depositor hereby
grants to the Trustee a security interest in the Term Assets and all other
property described in clause (2) of the preceding sentence, for the purpose of
securing to the Trustee the performance by the Depositor of the obligations
described in clause (3) of the preceding sentence. Notwithstanding the
foregoing, the parties hereto intend the Grant pursuant to Section 2.1 to be a
true, absolute and unconditional sale of the Term Assets and assets constituting
the applicable Trust by the Depositor to the Trustee. The Depositor shall direct
the Trustee to the extent consistent with this Agreement, take such actions as
may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Term Assets, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and will
be maintained as such for so long as any of the Term Assets remain outstanding.
Without limiting the generality of the foregoing, the Trustee, upon receipt of
such direction, shall file, or shall cause to be filed, all filings identified
by the Depositor to be
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necessary to maintain the effectiveness of any original filings identified by
the Depositor to be necessary under the Uniform Commercial Code as in effect in
any jurisdiction to perfect the Trustee's security interest in or lien on the
Term Assets, including (x) continuation statements and (y) such other statements
as may be occasioned by (1) any change of name of the Depositor or the Trustee,
(2) any change of location of the place of business or the chief executive
office of the Depositor or (3) any transfer of any interest of the Depositor in
any Term Asset.
Section 10.9. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, each of the Trustee (including any Co-Trustee) the
Administrative Agent, if any, (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) and the Depositor
agrees that it shall not, until the date which is one year and one day after the
earlier of a Trust Termination Event or the Final Scheduled Distribution Date,
as defined in the related Series Supplement, acquiesce, petition or otherwise
invoke or cause the Trust to invoke the process of the United States of America,
any State or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government for the purpose of commencing or sustaining a case by
or against the Trust under a Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or all or any part of the
property or assets of the Trust or ordering the winding up or liquidation of the
affairs of the Trust.
Section 10.10. No Recourse. Provided that there exists no default on the
Term Assets, neither the Trustee (including any Co-Trustee), the Administrative
Agent, if any (including any Sub-Administrative Agent, Authenticating Agent,
Calculation Agent, or Paying Agent) nor the Depositor shall have any recourse to
the Term Assets, except as specifically provided in the related Series
Supplement.
Section 10.11. Article and Section References. All article and section
references used in this Agreement, unless otherwise provided, are to articles
and sections in this Agreement.
Section 10.12. Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this Agreement by any of the
provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein unless
expressly excluded by this Agreement) are a part of and govern this Agreement,
whether or not physically contained herein.
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IN WITNESS WHEREOF, the Depositor and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
STRUCTURED PRODUCTS CORP.,
as Depositor
By:__________________________
Authorized Signatory
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as Trustee
By:__________________________
Authorized Signatory
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