Exhibit 4.1
STANDARD TERMS FOR TRUST AGREEMENTS
between
ELMWOOD FUNDING LIMITED,
as Depositor
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
[NAME OF] CERTIFICATES
Dated as of February [__], 1997
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ASSUMPTIONS
1.01. Definitions................................................... 1
1.02. Rules of Construction......................................... 17
1.03. Compliance Certificates and Opinions; Record Date............. 17
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES;
PURPOSE AND CLASSIFICATION OF TRUSTS
2.01. Creation and Declaration of Trusts; Assignment of Underlying
Securities..................................................... 18
2.02. Acceptance by Trustee......................................... 20
2.03. Representations and Warranties of the Depositor............... 20
2.04. Breach of Representation, Warranty or Covenant................ 21
2.05. Agreement to Authenticate and Deliver Certificates............ 21
ARTICLE III
ADMINISTRATION OF EACH TRUST
3.01. Administration of each Trust.................................. 22
3.02. Collection of Certain Underlying Security Payments............ 22
3.03. Certificate Account........................................... 22
3.04. Liquidation of the Underlying Securities...................... 23
3.05. Investment of Funds in the Accounts........................... 24
3.06. Maintenance of Credit Support................................. 24
3.07. Realization Upon Defaulted Underlying Securities.............. 25
3.08. Retained Interest............................................. 26
3.09. Access to Certain Documentation............................... 26
3.10. Reports by the Depositor...................................... 26
3.11. Charges and Expenses.......................................... 27
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
4.01. Distributions................................................. 28
4.02. Distributions on Certificates................................. 28
4.03. Reports to Certificateholders................................. 29
4.04. Advances...................................................... 30
4.05. Allocation of Realized Losses and Trust Expenses.............. 31
4.06. Compliance with Withholding Requirements...................... 31
4.07. Optional Exchange............................................. 32
ARTICLE V
THE CERTIFICATES
5.01. The Certificates.............................................. 34
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5.02. Execution, Authentication and Delivery........................ 34
5.03. Temporary Certificates........................................ 35
5.04. Registration; Registration of Transfer and Exchange........... 36
5.05. Mutilated, Destroyed, Lost and Stolen Certificates............ 39
5.06. Persons Deemed Owners......................................... 39
5.07. Cancellation.................................................. 40
5.08. Global Securities............................................. 40
5.09. Notices to Depository......................................... 41
5.10. Definitive Certificates....................................... 41
5.11. Conditions of Authentication and Delivery of New Series....... 42
5.12. Appointment of Paying Agent................................... 43
5.13. Authenticating Agent.......................................... 44
5.14. Voting Rights with Respect to Underlying Securities........... 45
5.15. Actions by Certificateholders................................. 46
5.16. Events of Default............................................. 47
5.17. Judicial Proceedings Instituted by Trustee; Trustee May Bring
Suit........................................................... 47
5.18. Control by Certificateholders................................. 47
5.19. Waiver of Past Defaults....................................... 47
5.20. Right of Certificateholders to Receive Payments Not to Be
Impaired....................................................... 48
5.21. Remedies Cumulative........................................... 48
ARTICLE VI
THE DEPOSITOR
6.01. Liability of the Depositor.................................... 48
6.02. Limitation on Liability of the Depositor...................... 49
6.03. Depositor May Purchase Certificates........................... 50
6.04. Merger or Consolidation of the Depositor...................... 50
6.05. No Liability of the Depositor with Respect to the Underlying
Securities; Certificateholders to Proceed Directly Against the
Underlying Securities Issuer(s)................................ 50
ARTICLE VII
CONCERNING THE TRUSTEE
7.01. Duties of Trustee............................................. 51
7.02. Between Trustee and Sub-Administrative Agents................. 54
7.03. Certain Matters Affecting the Trustee......................... 55
7.04. Trustee Not Liable for Recitals in Certificates or Underlying
Securities..................................................... 56
7.05. Trustee May Own Certificates.................................. 56
7.06. Trustee's Fees and Expenses................................... 57
7.07. Eligibility Requirements for Trustee.......................... 58
7.08. Resignation or Removal of the Trustee; Appointment of Successor
Trustee........................................................ 58
7.09. Appointment of Office or Agency............................... 60
7.10. Representations and Warranties of Trustee..................... 60
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7.11. Indemnification of Trustee by the Depositor; Contribution..... 61
7.12. No Liability of the Trustee with Respect to the Underlying
Securities; Certificateholders to Proceed Directly Against the
Underlying Securities Issuer(s)................................ 62
7.13. The Depositor To Furnish Trustee with Names and Addresses of
Certificateholders............................................. 63
7.14. Preservation of Information................................... 63
7.15. Reports by Trustee............................................ 63
7.16. Trustee's Application for Instructions from the Depositor..... 63
ARTICLE VIII
MARKET AGENT
8.01. Market Agent.................................................. 64
ARTICLE IX
TERMINATION
9.01. Termination upon Liquidation of All Underlying Securities..... 64
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01. Amendment.................................................... 65
10.02. Limitation on Rights of Certificateholders................... 66
10.03. Governing Law................................................ 67
10.04. Notices...................................................... 68
10.05. Notice to Rating Agencies.................................... 68
10.06. Severability of Provisions................................... 69
10.07. Grant of Security Interest................................... 69
10.08. Nonpetition Covenant......................................... 70
10.09. No Recourse.................................................. 71
10.10. Article and Section References............................... 71
10.11. Counterparts................................................. 71
10.12. Trust Indenture Act Controls................................. 71
STANDARD TERMS FOR TRUST AGREEMENTS dated as of February [__],
1997, among ELMWOOD FUNDING LIMITED, a Cayman Islands company, as Depositor,
and UNITED STATES TRUST COMPANY OF NEW YORK, a New York corporation, as
Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the execution
and delivery of these Standard Terms for Trust Agreements (the "STANDARD
TERMS") to provide for one or more Series (and one or more Classes within
each such Series) of Certificates, issuable from time to time as provided in
these Standard Terms.
Each such Series (inclusive of any Classes specified within such
Series) of Certificates will be issued only under a separate Series Supplement
to these Standard Terms, duly executed and delivered by the Depositor and the
Trustee. With respect to each Series of Certificates, these Standard Terms and
all amendments hereof and, unless the context otherwise requires, the related
Series Supplement and all amendments thereto shall be known as the "TRUST
AGREEMENT".
All representations, covenants and agreements made herein by each
of the Depositor and the Trustee are for the benefit and security of the
Certificateholders and, to the extent provided in the applicable Series
Supplement, for the benefit and security of any Credit Support Provider or any
other party as specified therein.
The Depositor is entering into these Standard Terms, and the
Trustee is accepting the trust created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
Section 1.01. Definitions. Except as otherwise specified
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herein or in the applicable Series Supplement or as the context may otherwise
require, the following terms have the respective meanings set forth below for
all purposes of this Trust Agreement.
"ACCOUNT": As defined in Section 3.05.
"ACCOUNTING DATE": With respect to any Series, if applicable,
as defined in the related Series Supplement.
"ADVANCE": As defined in Section 4.04.
"AFFILIATE": With respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified
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Person. For the purposes of this definition, "CONTROL", when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "CONTROLLING"
and "CONTROLLED" have meanings correlative to the foregoing.
"ALLOWABLE EXPENSE AMOUNT": With respect to any Series, as
defined in the related Series Supplement.
"AUTHENTICATING AGENT": As defined in Section 5.13.
"AVAILABLE FUNDS": Unless otherwise specified in the
applicable Series Supplement, for any Distribution Date in respect of a given
Series or Class, the sum of (i) all amounts actually received on or with
respect to the Underlying Securities (including Liquidation Proceeds and
investment income on amounts in the Accounts) with respect to such Series
during the related Collection Period, (ii) all amounts received 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.
"BENEFICIAL OWNER": With respect to Certificates held through
a Depository, the beneficial owner of a Certificate. For purposes only of
Section 5.15, the Trustee shall be obligated to treat a Person who claims to be
a beneficial owner of a Certificate as a "BENEFICIAL OWNER" within the
meaning of the Series Supplement only if such Person has first delivered to the
Trustee, (i) a certificate or other writing executed by such Person stating the
full name and address of such Person, the principal distribution amount of the
Certificate with respect to which such Person claims to be the Beneficial
Owner, and the participant in the Depository ("SUCH PERSON'S PARTICIPANT")
through which such Person holds its beneficial ownership interest in the
Certificates and (ii) a certificate or other writing executed by such Person's
Participant confirming that such Person's Participant holds on its own books
and records Certificates for the account of such Beneficial Owner and
identifying the principal distribution amount held for such Beneficial Owner.
"BUSINESS DAY": Any day that is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies in The
City of New York are authorized or obligated by law, regulation or executive
order to close and that is also a Business Day specified with respect to the
Underlying Securities.
"CALL PREMIUM PERCENTAGE": With respect to any Series (or
Class with such Series), if applicable, as defined in the related Series
Supplement.
"CERTIFICATE ACCOUNT": As defined in Section 3.03.
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"CERTIFICATE OWNERS": As defined in Section 5.08.
"CERTIFICATE PRINCIPAL BALANCE": With respect to an
Outstanding Certificate, as determined at any time, the maximum amount that the
Holder thereof is entitled to receive as distributions allocable to principal
payments on the Underlying Securities. 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 to principal of the Underlying Securities, (ii) any reductions
attributable to Certificates surrendered in exchange for Underlying Securities,
as and to the extent provided in the applicable Series Supplement and (iii) any
reductions in the Certificate Principal Balance thereof deemed to have occurred
in connection with allocations of (A) Realized Losses in respect of principal
of the Underlying Securities and (B) expenses of the Trust if any only to the
extent specified in the applicable Series Supplement, each as allocated to such
Class pursuant to the applicable Series Supplement.
"CERTIFICATEHOLDER": Any Holder of a Certificate.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR": As
respectively defined in Section 5.04.
"CERTIFICATES": Any trust certificates authorized by, executed
pursuant to and authenticated and delivered under, this Trust Agreement.
"CLASS": With respect to any Series, any one of the classes of
Certificates of such Series, each consisting of
Certificates having identical terms.
"CLEARING AGENCY": An organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"CLOSING DATE": With respect to any Series, the day on which
Certificates of such Series are first executed,
authenticated and delivered.
"CODE": The Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"COLLECTION PERIOD": With respect to any Distribution Date for
a Series (or Class within such Series), the period specified in the related
Series Supplement.
"COMMISSION": The Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution and delivery of this Trust Agreement such Commission is not
existing and performing the duties now assigned to it, then the body then
performing such duties.
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"CONCENTRATED UNDERLYING SECURITIES": Any Underlying
Securities that constitute 10% or more of the total Underlying Securities with
respect to a Series of Certificates.
"CORPORATE TRUST OFFICE": The principal corporate trust office
of the Trustee located at the address set forth in the related Series
Supplement or such other addresses as the Trustee may designate from time to
time by notice to the Holders and the Depositor, or the principal corporate
trust office of any successor Trustee (or such other addresses as a successor
Trustee may designate from time to time by notice to the Holders and the
Depositor).
"CREDIT SUPPORT": With respect to any Series (or any Class
within such Series), a letter of credit, surety bond, swap agreement, put or
call option or other asset intended to support or ensure the timely or ultimate
distributions of amounts due in respect of all or certain of the Underlying
Securities for such Series or Class, which in each case is specified as such in
the related Series Supplement.
"CREDIT SUPPORT INSTRUMENT": The instrument or document
pursuant to which the Credit Support for a given Series (or any Class within
such Series) is provided, as specified in the applicable Series Supplement.
"CREDIT SUPPORT PROVIDER": With respect to any Series (or any
Class with such Series), the Person, if any, that will provide any Credit
Support with respect to all or a portion of the Underlying Securities for such
Series or Class as specified in the applicable Series Supplement.
"CUT-OFF DATE": With respect to any Series, the date specified
as such in the related Series Supplement. For purposes of this Trust
Agreement, any Underlying Security acquired by the Depositor after the
applicable Cut-off Date but prior to the applicable Closing Date and included
in the related Trust as of such Closing Date shall be deemed to have been
Outstanding as of such Cut-off Date and references to the principal balance of
such Underlying Security as of such Cut-off Date shall be deemed to be to the
principal balance of such Underlying Security as of the date on which it was
acquired by the Depositor.
"DEFINITIVE CERTIFICATES": As defined in Section 5.08.
"DELIVERY OFFICE": Unless otherwise specified in the
applicable Series Supplement, the office of the Trustee located at 000
Xxxxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the
Trustee may designate from time to time by notice to the Holders and the
Depositor, or the office of any successor Trustee at which certificated
securities are delivered for registration of transfer, cancellation or exchange
(or such other addresses as a successor Trustee may designate from time to time
by notice to the Holders and the Depositor).
"DEPOSITOR": Elmwood Funding Limited, a Cayman Islands
company, and, if a successor Person shall have become the Depositor pursuant to
any applicable provisions of this Trust
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Agreement, "DEPOSITOR" shall mean such successor Person. With respect to
any provisions of this Trust Agreement that relate to the provisions of the
Trust Indenture Act, "DEPOSITOR" shall include any obligor on the
Certificates as the term obligor is defined in the Trust Indenture Act.
"DEPOSITOR ORDER" or "DEPOSITOR REQUEST": A written order
or request, respectively, signed in the name of the
Depositor by any of its President or Vice Presidents.
"DEPOSITORY": With respect to the Certificates of any Series
(or Class within such Series) issuable in whole or in part in the form of one
or more Global Securities, the Person designated as Depository by the Depositor
pursuant to Section 5.01 until a successor Depository shall have become such
pursuant to the applicable provisions of this Trust Agreement, and thereafter
"DEPOSITORY" shall mean or include each Person who is then a Depository
hereunder, and if at any time there is more than one such Person,
"DEPOSITORY" as used with respect to the Certificates of any such Series or
Class shall mean the Depository with respect to the Certificates of that Series
or Class.
"DEPOSITORY AGREEMENT": If applicable, the agreement pursuant
to which the Depository will agree to act as Depository with respect to any
Series (or Class within such Series) of Certificates in accordance with Section
5.08.
"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 obligations of which are rated by the Rating
Agency the higher of (x) at least the then current long-term rating of the
Certificates or (y) in one of its two highest long-term rating categories
(unless otherwise specified in the Series Supplement) at the time any amounts
are held in deposit therein or (ii) a trust account(s) maintained as a
segregated account(s) 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 depository institution or
trust company has a long-term rating in one of the four highest categories by
the Rating Agency.
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"ELIGIBLE EXPENSE": With respect to any Series, as specified
in the related Series Supplement.
"ELIGIBLE INVESTMENTS": With respect to any Series, unless
otherwise specified in the related Series Supplement, any one or more of the
following obligations or securities; provided, however, that the total stated
return specified by the terms of each such obligation or security is at least
equal to the purchase price thereof; and provided, further, that no such
instrument may carry the symbol "r" in its rating:
(i) direct obligations of, and obligations fully guaranteed by,
the United States, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, the Federal Farm Credit System or
any agency or instrumentality of the United States the obligations of
which are backed by the full faith and credit of the United States of
America; provided, however, that obligations of, or guaranteed by, the
Federal Home Loan Mortgage Corporation, the Federal National Mortgage
Association or the Federal Farm Credit System shall be Eligible
Investments only if, at the time of investment, such investment has the
rating specified in such Series Supplement for Eligible Investments;
(ii) demand and time deposits in, certificates of deposit of, or
banker's acceptances issued by any depository institution or trust
company (including the Trustee or any agent of the Trustee acting in
their respective commercial capacities) incorporated under the laws of
the United States or any State and subject to supervision and examination
by Federal and/or State banking authorities so long as the commercial
paper and/or the short-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt obligations of such holding company) at
the time of such investment or contractual commitment providing for such
investment have the rating specified in such Series Supplement for
Eligible Investments; provided, however, that such rating shall be no
lower than the rating on the Underlying Securities 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
Eligible Investments;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States or any
State that have the rating specified in such Series Supplement for
Eligible Investments at the time of such investment or contractual
commitment providing for such investment; provided, however, that such
rating shall be no lower than the rating on the Underlying Securities;
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and provided, further, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust for
such Series to exceed 10% of the aggregate outstanding principal balances
and amounts of all the Underlying Securities and Eligible Investments
held as part of the Trust for such Series;
(v) commercial paper having at the time of such investment the
rating specified in the Series Supplement for Eligible Investments; and
(vi) a Guaranteed Investment Contract if and only if specified in
the related Series Supplement, provided that the Rating Agency Condition
is met.
"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.
"EXECUTIVE OFFICER": With respect to any Series, a member of
the board of directors of any specified Person or any president or vice
president of such specified Person, except as otherwise provided in the related
Series Supplement.
"EXTRAORDINARY TRUST EXPENSE": Unless otherwise specified in
the related Series Supplement, any and all costs, expenses or liabilities
arising out of the establishment, existence or administration of the Trust,
other than (i) Ordinary Expenses, and (ii) costs and expenses payable by a
particular Certificateholder, the Trustee or the Depositor pursuant to this
Trust Agreement.
"FINAL SCHEDULED DISTRIBUTION DATE": With respect to any
Certificate, the date on which all the unpaid principal of (and premium, if
any, on) and interest 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.
"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 5.01 and the related
Series Supplement.
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"GLOBAL SECURITY": A Certificate evidencing all or part of a
Series (or Class within such Series) of Certificates, issued to the Depository
for such Series or Class in accordance with Section 5.08 and bearing the legend
prescribed therein.
"GRANT": To sell, convey, assign, transfer, create, xxxxx x
xxxx upon and a security interest in and right of set-off against, deposit, set
over and confirm to the Trustee pursuant to these Standard Terms and a related
Series Supplement; and the terms "GRANTED" and "GRANTING" have the
meanings correlative to the foregoing. A Grant of any Underlying Securities or
of any other instrument shall include all rights, powers and options (but none
of the obligations) of the Granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal, premium, if any, and interest payments in respect of such Underlying
Securities and all other moneys payable thereunder, to give and receive notices
and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the Granting party or
otherwise, and generally to do and receive anything that the Granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"GUARANTEED INVESTMENT CONTRACT": With respect to any Series
(or Class within such Series), a guaranteed investment contract or surety bond
provided for in the related Series Supplement, Granted as part of the Trust or
to the Trustee for the benefit of the Certificateholders for such Series,
providing for the investment of funds in a related Account or related Accounts
and insuring a minimum or a fixed rate of return on the investment of such
funds, which contract or surety bond shall be an obligation of an insurance
company or other entity whose rating is no lower than the rating on the
Underlying Securities and shall satisfy any other requirements specified in
such Series Supplement.
"HOLDER": The Person in whose name a Certificate is registered
in the Certificate Register on the applicable Record Date.
"INDEPENDENT": When used with respect to any specified Person
means that the Person (1) is in fact independent of the Depositor and of any
Affiliate, (2) does not have any direct or indirect material financial interest
in the Depositor or in any Affiliate and (3) is not connected with the
Depositor as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"INITIAL ACCRUED INTEREST": With respect to any Series, shall
mean, with respect to each Underlying Security, the amount of interest which
accrued thereon from the Underlying Security Interest Payment Date of such
Underlying Security next preceding the deposit of such Underlying Security
hereunder (or, in the event that such Underlying Security Interest Payment Date
is the first Underlying Security Interest Payment Date to occur after the
original issuance of such Underlying Security, from the dated date thereof) to,
but excluding, the Closing Date.
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"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 Underlying Securities
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 or certain of the
Underlying Securities relating to such Series or Class, executed and delivered
by a limited Guarantor in favor of the Trustee, for the benefit of the
Certificateholders, as specified in the related Series Supplement.
"LIQUIDATION PROCEEDS": The amounts received by the Trustee in
connection with (i) the liquidation of a defaulted Underlying Security or
collateral, if any, related thereto or (ii) the repurchase, substitution or
sale of a Underlying Security.
"MARKET AGENT": The market agent or market agents appointed
pursuant to Section 8.01, and its or their successors or assigns.
"MARKET AGENT AGREEMENT": With respect to any Series, the
Market Agent Agreement, dated as of the Closing Date, between the Trustee and
the Market Agent, the form of which will be attached to the Series Supplement,
and any similar agreement with a successor Market Agent, in each case as from
time to time amended or supplemented.
"MINIMUM WIRE DENOMINATION": With respect to any Series, the
amount specified as the "Minimum Wire Denomination" in the related Series
Supplement.
"MOODY'S": Xxxxx'x Investors Service Inc. and any successors
thereto.
"NOTIONAL AMOUNT": With respect to any Class of Certificates,
if applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass-Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"OFFICER'S CERTIFICATE": A certificate signed by any (or, if
specified in these Standard Terms or any Series
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Supplement, more than one) Executive Officer of the Depositor, and delivered to
the Trustee.
"OPINION OF COUNSEL": A written opinion of counsel, who may,
except as otherwise expressly provided in this Trust Agreement, be counsel for
the Depositor acceptable to the Trustee, except that any opinion of counsel
relating to the qualification of any account required to be maintained pursuant
to this Trust Agreement as an Eligible Account must be an opinion of counsel
who is in fact Independent of the Depositor.
"OPTIONAL EXCHANGE DATE": With respect to any Series (or Class
with such Series), as defined, if applicable, in the related Series Supplement.
"ORDINARY EXPENSES": Unless otherwise provided in a Series
Supplement, the Trustee's customary fee for its services as Trustee, including
but not limited to (i) the costs and expenses of preparing, sending and
receiving all reports, statements, notices, returns, filings, solicitation of
consent or instructions, or other communications required by this Trust
Agreement, (ii) the costs and expenses of holding and making ordinary
collection or payments on the assets of the Trust and of determining and making
distributions, (iii) the costs and expenses of the Trust's or Trustee's
counsel, accountants and other experts for ordinary or routine consultation or
advice in connection with the establishment, administration and termination of
the Trust, and (iv) any other costs and expenses that are, or reasonably should
have been, expected to be incurred in the ordinary course of administration of
the Trust.
"OUTSTANDING": With respect to Certificates of a specified
Series (or Class within such Series), as of any date of determination, all such
Certificates theretofore executed, authenticated and delivered under these
Standard Terms and the related Series Supplement except:
(i) Certificates theretofore cancelled by the Registrar or
delivered to the Certificate Registrar for cancellation; and
(ii) Certificates in exchange for or in lieu of which other
Certificates have been executed, authenticated and delivered pursuant to
this Trust Agreement, unless proof satisfactory to the Trustee is
presented that any such Certificates are held by a bona fide purchaser in
whose hands such Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Depositor, the Trustee, or any Affiliate
thereof shall be disregarded and deemed not to be Outstanding, and the Voting
Rights to which its Holder would otherwise be entitled shall not be taken into
account in determining whether the requisite percentage of aggregate Voting
Rights necessary to effect any such consent or take any such
- 11 -
action has been obtained except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates with respect to which
the Depositor has provided the Trustee an Officer's Certificate stating that
such Certificates so owned shall be so disregarded. Certificates so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not, to the knowledge
of the Trustee, the Depositor, or any Affiliate of any thereof. The principal
amount or notional amount, as applicable, of a Discount Certificate that shall
be deemed to be Outstanding 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.
"PARTICIPANT": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"PASS-THROUGH RATE": With respect to any Series (or Class
within such Series) of Certificates (except certain Discount Certificates and
Certificates entitled to nominal or no interest distributions) the annual rate
at which interest accrues on the Certificates of such Series (or Class), which
may be a fixed rate or a floating rate of interest, determined upon the basis
and in the manner specified in the related Series Supplement.
"PAYING AGENT": As defined in Section 5.12.
"PERCENTAGE INTEREST": With respect to a Certificate of any
Series or Class within a Series, the portion of such Series or Class evidenced
by such Certificate, expressed as a percentage, equal to the product of (x) a
fraction, the numerator of which is the initial Certificate Principal Balance
or Notional Amount, as applicable, represented by such Certificate and the
denominator of which is the aggregate initial Certificate Principal Balance or
Notional Amount, as applicable, of all the Certificates of such Series or Class
and (y) 100.
"PERSON": Any individual, limited liability company,
corporation, partnership, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"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 executed, authenticated and delivered under
Section 5.05 in lieu of a lost, destroyed or stolen Certificate shall be deemed
to evidence the same interest as the lost, destroyed or stolen Certificate.
- 12 -
"PREPAID ORDINARY EXPENSES": Unless otherwise specified in the
Series Supplement, the amount (if any) paid by the Depositor to the Trustee on
or before the Closing Date to cover Ordinary Expenses, as specified in the
related Series Supplement.
"PROCEEDING": Any suit in equity, action at law or other
judicial or administrative proceeding.
"RATING AGENCY": With respect to any Series (or Class within
such Series), each nationally recognized statistical rating organization
specified in the related Series Supplement that initially rates the
Certificates of such Series (or Class).
"RATING AGENCY CONDITION": With respect to any action or
occurrence, unless otherwise specified in the applicable Series Supplement,
that each Rating Agency shall have been given 10 days (or such shorter period
acceptable to each Rating Agency) prior notice thereof and that each Rating
Agency shall have notified the Depositor and the Trustee in writing that such
action or occurrence will not result in a reduction or withdrawal of the then
current rating of any Certificate of the applicable Series.
"REALIZED LOSSES": With respect to any defaulted and
liquidated Underlying Security, the excess, if any, of (x) the principal amount
of such Underlying Security plus accrued and unpaid interest thereon, plus
expenses incurred by the Trustee in connection with the practices and
procedures referred to in Section 3.07(b) to the extent reimbursable under
these Standard Terms and the related Series Supplement, over (y) Liquidation
Proceeds with respect thereto.
"RECORD DATE": With respect to any Distribution Date for any
Series (or Class within such Series) of Certificates, the date specified in the
related Series Supplement.
"REQUIRED INTEREST": Unless otherwise specified in the related
Series Supplement, with respect to the Outstanding Certificates of any Series
or any Class thereof, the accrued and undistributed interest on the 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, if a Rating Agency Condition is specified in the
related Series Supplement and such Rating Agency Condition is met, or, if a
Rating Agency Condition is not so specified in the related Series Supplement,
66-2/3% of the aggregate Voting Rights of Certificates of such Series, and 100%
otherwise.
"REQUIRED PERCENTAGE-DEFINITIVE CERTIFICATES": Unless
otherwise specified in the related Series Supplement, 66-2/3% of the aggregate
Voting Rights of Certificates of such Series.
- 13 -
"REQUIRED PERCENTAGE-DIRECTION OF TRUSTEE": Unless otherwise
specified in the related Series Supplement, 66-2/3% of the aggregate Voting
Rights of Certificates of such Series.
"REQUIRED PERCENTAGES-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, more 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 and Class, of (i) the
Required Principal for such Series and Class and (ii) the Call Premium
Percentage for such Series and Class.
"REQUIRED PRINCIPAL": As determined for any Distribution Date
for a given Series (or Class within such Series), unless otherwise specified in
the related Series Supplement, the amounts on deposit in the Certificate
Account allocable to principal payments on the Underlying Securities (including
from Credit Support, if any, and Advances, if any, but excluding amounts in
respect of principal payments to the extent that Advances with respect thereto
were distributed as Required Principal on a prior Distribution Date) and
required to be distributed in respect of the Certificates of such Series (or
Class) in accordance with the terms of such Certificates and such related
Series Supplement.
"REQUIRED RATING": With respect to any Series (or Class within
such Series), the rating category (or categories) specified in the Series
Supplement that, as a condition to the issuance of such Series or Class, is (or
are) the lowest category (or categories) in which the Certificates of such
Series or Class may be categorized by the Rating Agency.
"REQUISITE RESERVE AMOUNT": As of any date with respect to any
Series (or Class within such Series) of Certificates, the amount, if any,
required to be maintained in the Reserve Account, if any, for such Series or
Class as specified in or determined pursuant to the related Series Supplement.
"RESERVE ACCOUNT": An Eligible Account, if any, created and
maintained pursuant to Section 3.06.
"RESPONSIBLE OFFICER": With respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any
Managing Director, Senior Vice President, Vice
- 14 -
President, Assistant Vice President, Assistant Treasurer or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's actual knowledge of and familiarity with the particular subject.
"RETAINED INTEREST": If applicable, with respect to any
Underlying Security, an ownership interest in and a right to a portion of the
payments thereon by the obligor thereof, as specified in the related Series
Supplement, held by the Person so specified in such Series Supplement.
"SALE PROCEDURES": Unless otherwise specified in the Series
Supplement, shall mean that, with respect to any sale of one or more Underlying
Securities, the Market Agent, on behalf of the Trust, shall sell such
Underlying Security or Underlying Securities to the highest bidders among not
less than two solicited bidders for such Underlying Securities (one of which
bidders may include Citicorp Securities, Inc. or any affiliate thereof;
provided, however, that neither Citicorp Securities, Inc. nor any of its
affiliates will be under any obligation to bid, and which bidders need not be
limited to recognized broker dealers). In the sole judgment of the Market
Agent, bids may be evaluated on the basis of bids for a single Underlying
Security, a portion of the Underlying Securities or all of the Underlying
Securities being sold or any other basis selected in good faith by the Market
Agent.
"S&P": Standard & Poor's Ratings Services and any successor
thereof.
"SERIES": A separate series of Certificates issued pursuant to
these Standard Terms and a related Series Supplement, which series may be
divided into two or more Classes, as provided in such Series Supplement.
"SERIES SUPPLEMENT": An agreement incorporating these Standard
Terms that authorizes the issuance of a particular Series (and each Class
within such Series) of Certificates.
"SUB-ADMINISTRATION ACCOUNT": As defined in Section 7.02.
"SUB-ADMINISTRATION AGREEMENT": The written contract, if any,
between the Trustee and a Sub-Administrative Agent and any successor Trustee or
Sub-Administrative Agent relating to the administration of certain Underlying
Securities as provided in Section 7.02.
"SUB-ADMINISTRATION AGENT": Any Person with which the Trustee
has entered into a Sub-Administration Agreement and which meets the
qualifications of a Sub-Administrative Agent pursuant to Section 7.02.
"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
- 15 -
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.
"SWAP AGREEMENT": If so specified in the Series Supplement
with respect to any Series, the ISDA Master Agreement dated as of the Closing
Date by and between the Trust and the Swap Counterparty, the form of which
Schedule is attached thereto as Exhibit C, as the same may be amended or
supplemented by Confirmations from time to time as provided herein and therein.
"SWAP COUNTERPARTY": If so specified in the Series Supplement,
with respect to any Series, shall be specified in the Series Supplement.
"SWAP DISTRIBUTION AMOUNT": If so specified in the Series
Supplement with respect to any Series, all amounts then due and owing to the
Swap Counterparty pursuant to the Swap Agreement, other than Swap Termination
Payments.
"SWAP GUARANTEE": If so specified in the Series Supplement
with respect to any Series, the Guarantee issued by the Swap Guarantor in favor
of the Trust substantially in the form attached as Exhibit D to the Swap
Agreement.
"SWAP GUARANTOR": If so specified in the Series Supplement
with respect to any Series, the guarantor specified as such in the Series
Supplement.
"SWAP RECEIPT AMOUNT": If so specified in the Series
Supplement with respect to any Series, all amounts due and owing to the Trust
pursuant to the Swap Agreement, other than Swap Termination Payments.
"SWAP TERMINATION PAYMENT": If so specified in the Series
Supplement with respect to any Series, the amount payable by the Swap
Counterparty to the Trust, or by the Trust to the Swap Counterparty, pursuant
to Section 6(e) of the Swap Agreement.
"TRUST": With respect to any Series, the segregated asset or
pool of assets subject hereto, constituting the trust created hereby and by the
related Series Supplement and to be administered hereunder and thereunder,
consisting of those Underlying Securities and the Credit Support, if
applicable, and all sums distributed in respect thereof that are specified as
being part of the Trust for such Series in the related Series Supplement, all
for the benefit of the Certificateholders of such Series as of any particular
time.
"TRUST AGREEMENT": With respect to each Series of
Certificates, these Standard Terms and all amendments hereof and, unless the
context otherwise requires, the related Series Supplement and all amendments
thereto.
- 16 -
"TRUSTEE": With respect to any Series, the Person so specified
in the applicable Series Supplement, until a successor Person shall have become
the Trustee pursuant to the applicable provisions of these Standard Terms and
the applicable Series Supplement, and thereafter "TRUSTEE" shall mean such
successor Person.
"TRUST INDENTURE ACT": The Trust Indenture Act of 1939, as
amended, as the same is in force and effect as of the date hereof.
"TRUST PROPERTY": Unless otherwise specified in the related
Series Supplement, the Underlying Securities.
"UNDERLYING SECURITIES ISSUER": With respect to an Underlying
Security, the issuer thereof (including, if applicable, the guarantor of the
Underlying Security) as identified in Appendix A to the Series Supplement.
"UNDERLYING SECURITY" or "UNDERLYING SECURITIES": 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 Schedule A to the related
Series Supplement. The Underlying Securities for any such Series or the
related Trust shall not constitute Underlying Securities for any other Series
or any other Trust.
"UNDERLYING SECURITY INTEREST PAYMENT DATE": With respect to
an Underlying Security, each date specified in Schedule A to the Series
Supplement as a date on which interest is scheduled, as of the Closing Date, to
be payable by or on behalf of the Underlying Securities Issuer on such
Underlying Security in accordance with its terms.
"UNDERLYING SECURITY PAYMENT DATE": A Scheduled Underlying
Security Payment Date and any other date on which interest, principal and/or
redemption premium is payable on an Underlying Security in accordance with its
terms.
"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.
- 17 -
Section 1.02. Rules of Construction. Unless the context
---------------------
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
Section 1.03. Compliance Certificates and Opinions; Record
---------------------------------------------
Date. (a) Upon any application or request by the Depositor to the Trustee to
----
take any action under any provision of this Trust Agreement other than the
initial issuance of the Certificates, the Depositor shall furnish to the
Trustee an Officer's Certificate stating that, in the opinion of the signer
thereof, all conditions precedent, if any, provided for in this Trust Agreement
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Trust Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Trust Agreement (other than a
certificate provided pursuant to Section 3.10(d)) shall include:
(1) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
- 18 -
(4) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
(b) The Depositor may at its option by delivery of an Officer's
Certificate to the Trustee set a record date to determine the Holders of any
subclass of Certificates entitled to give any consent, request, demand,
authorization, direction, notice, waiver or other act. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such consent, request, demand,
authorization, direction, notice, waiver or other act may be given before or
after such record date, but only the Holders of record of Certificates of the
applicable subclass at the close of business on such record date shall be
deemed to be Certificateholders of such subclass for the purposes of
determining whether Holders of the requisite aggregate Principal Amount of
Outstanding Certificates of such subclass have authorized or agreed or
consented to such consent, request, demand, authorization, direction, notice,
waiver or other act, and for that purpose the aggregate Principal Amount of the
Outstanding Certificates of such subclass shall be computed as of such record
date; provided, however, that no such consent, request, demand, authorization,
direction, notice, waiver or other act by the Holders of Certificates of such
subclass on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Trust Agreement not later than one
year after the record date.
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES;
PURPOSE AND CLASSIFICATION OF TRUSTS
Section 2.01. Creation and Declaration of Trusts; Assignment of
--------------------------------------------------
Underlying Securities. (a) The Depositor, concurrently with the execution
---------------------
and delivery hereof, does hereby agree to 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 Underlying Securities attributable to each such Series (except
for the Underlying Securities attributable to such Series which are not Granted
by the Depositor, as specified in Schedule A to the applicable Series
Supplement), now existing or hereafter acquired, in each case as identified on
the applicable Schedule A, and all other assets included or to be included in
the respective Trust for the benefit of the Certificateholders of each such
Series. Each such Grant will include all interest, premium (if any) and
principal received by or on behalf of the Depositor of, on or with respect to
any such Underlying Securities due after the applicable Cut-off Date, and,
unless otherwise specified in the Series Supplement, will exclude
- 19 -
(i) all interest, premium (if any) and principal of, on or with respect to any
such Underlying Securities due on or before the applicable Cut-off Date and
(ii) any Retained Interest in any such Underlying Security. With respect to
any Concentrated Underlying Security, Schedule A to the applicable Series
Supplement shall include information regarding the payment terms of the
Concentrated Underlying Security, the Retained Interest, if any, with respect
thereto, the maturity or terms thereof, the rating, if any, thereof and any
other material information with respect thereto.
(b) In connection with each Grant referred to in the preceding
paragraph, the Depositor shall, not later than the applicable Closing Date,
either (i) deposit the Underlying Securities for a given Series (except for the
Underlying Securities attributable to such Series which are to be acquired from
a Person other than the Depositor, as specified on the Underlying Securities
Schedule to the applicable Series Supplement) with the Trustee by physical
delivery of such Underlying Securities, duly endorsed, together with any
documents necessary to transfer ownership of such Underlying Securities, to the
Trustee or (ii) have delivered such Underlying Securities to a Clearing Agency,
in which event (A) the Trustee has accepted delivery of such Underlying
Securities through such Clearing Agency, and (B) the Underlying Securities have
been credited to a trust account of the Trustee, or its authorized agent, and
the Trustee shall have the right to hold and maintain such Underlying
Securities on deposit with such Clearing Agency for all purposes of this Trust
Agreement.
(c) Unless otherwise specified in the applicable Series Supplement,
the Grant of such Underlying Securities by the Depositor for a given Series
accomplished hereby and by such Series Supplement is absolute and is intended
by the parties hereto as a sale.
(d) In the case of each delivery of Underlying Securities to the
Trustee, the Depositor shall be deemed thereby to represent and warrant to the
Trustee that:
(i) the Depositor is duly authorized to so deliver such Underlying
Securities;
(ii) the Underlying Securities so delivered are genuine;
(iii) at the time of delivery of the Underlying Securities, such
Underlying Securities are free and clear of any lien, pledge,
encumbrance, right, charge, claim or other security interest (other than
the lien created by the Trust Agreement); and
(iv) such delivery is irrevocable and free of any continuing claim
by the Depositor except such as the Depositor may have as a
Certificateholder of a Certificate.
The above representations and warranties shall survive the delivery
of such Underlying Securities and the Certificates
- 20 -
in respect thereof. The Depositor shall further be deemed by such delivery to
have made the representations that, to the Depositor's knowledge but without
having made any independent inquiry, as of the Closing Date, no default or
event of default with respect to the Underlying Securities has occurred and is
continuing.
(e) It is the intention of all of the parties hereto that the
transfer of the Trust Property hereunder and under any Series Supplement shall
constitute a sale and the Trust created hereunder and thereunder shall
constitute a fixed investment trust for federal income tax purposes under
Treasury Regulation Section 301.7701-4, and all parties hereto and thereto
agree to treat the Trust, any distributions therefrom and the beneficial
interest in the Certificates consistently with such characterization. The
provisions of this Trust Agreement shall be interpreted consistently with such
characterization.
(f) Any Trust created hereunder shall not engage in any business or
activities other than in connection with, or relating to, the holding,
protecting and preserving of the Trust Property and the issuance of the
Certificates, and other than those required or authorized by this Trust
Agreement or incidental to and necessary to accomplish such activities. Any
Trust created hereunder shall not issue or sell any certificates or other
obligations other than the Certificates or otherwise incur, assume or guarantee
any indebtedness for money borrowed.
Section 2.02. Acceptance by Trustee. With respect to each
---------------------
Series, the Trustee will acknowledge receipt by it, or by a custodian on its
behalf, of the related Underlying Securities, now existing or hereafter
acquired, and declares that it will hold such Underlying Securities and
documents and all other documents delivered to it pursuant to this Trust
Agreement, and that it will hold all such assets and such other assets
(including Underlying Securities acquired from a Person other than the
Depositor) comprising the Trust for a given Series of Certificates, in trust
for the exclusive use and benefit of all present and future Certificateholders
of such Series and for the purposes and subject to the terms and conditions set
forth in this Trust Agreement.
Section 2.03. Representations and Warranties of the Depositor.
-----------------------------------------------
The Depositor hereby represents and warrants to the Trustee that as of the
Closing Date or as of such other date specifically provided herein or in the
applicable Series Supplement:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the Cayman Islands;
(ii) with respect to each Series Supplement, to the Depositor's
knowledge but without having made any independent inquiry, the
information set forth in the Underlying Security Schedule with respect to
each Underlying Security is true and correct in all material respects at
the
- 21 -
date or dates, respecting which, such information is furnished;
(iii) the execution and delivery of this Trust Agreement by the
Depositor and its performance of and compliance with the terms of this
Trust Agreement will not violate the Depositor's Memorandum and Articles
of Association or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or other
instrument to which the Depositor is a party or which may be applicable
to the Depositor or any of its assets;
(iv) the Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Trust Agreement, has
duly authorized the execution, delivery and performance of this Trust
Agreement and has duly executed and delivered this Trust Agreement. This
Trust Agreement, upon its execution and delivery by the Depositor and
assuming due authorization, execution and delivery by the Trustee, will
constitute a valid, legal and binding obligation of the Depositor,
enforceable against it in accordance with the terms hereof, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, and by general equity
principles (regardless of whether such enforcement is considered a
proceeding in equity or at law); and
(v) any additional representations and warranties, if any, that may
be specified in the applicable Series Supplement.
It is understood and agreed that the representations and warranties
of the Depositor set forth in this Section 2.03 shall survive delivery of the
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 or
the Trustee of a breach of any of the foregoing representations and warranties
which materially and adversely affects the interests of the Certificateholders,
the party discovering such breach shall give prompt written notice thereof to
the other party.
Section 2.04. Breach of Representation, Warranty or Covenant.
----------------------------------------------
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 2.03 that materially and adversely affects the
interests of the Certificateholders of a given Series of Certificates, the
Depositor shall cure such breach in all material respects.
Section 2.05. Agreement to Authenticate and Deliver
--------------------------------------
Certificates. With respect to each Series of Certificates and the related
------------
Trust, the Trustee hereby agrees and acknowledges
- 22 -
that it will, concurrently with the Grant to and receipt by it of the related
Underlying Securities and delivery to it by the Depositor of executed
Certificates of such Series, cause to be authenticated and delivered to or upon
the written order of the Depositor, in exchange for the Underlying Securities
and such other assets constituting the Trust for a given Series, Certificates
duly authenticated by or on behalf of the Trustee in authorized denominations
evidencing ownership of the entire Trust for such Series, all in accordance
with the terms and subject to the conditions of Sections 5.02 and 5.13.
ARTICLE III
ADMINISTRATION OF EACH TRUST
Section 3.01. Administration of each Trust. (a) The Trustee
----------------------------
shall administer the Underlying Securities for each given Trust for the benefit
of the Certificateholders of the related Series. In engaging in such
activities, the Trustee shall follow or cause to be followed collection
procedures in accordance with the terms of these Standard Terms and the
applicable Series Supplement, the respective Underlying Securities and any
applicable Credit Support Instruments. With respect to each Trust, and subject
only to the above-described standards and the terms of these Standard Terms,
the related Series Supplement and the respective Underlying Securities and
applicable Credit Support Instruments, if any, the Trustee shall have full
power and authority, acting alone or through Sub-Administrative Agents as
provided in Section 7.02, to do or cause to be done any and all things in
connection with such administration which it deems necessary to comply with the
terms of these Standard Terms and the applicable Series Supplement.
(b) The duties of the Trustee shall be performed in accordance with
applicable local, State and Federal law.
Section 3.02. Collection of Certain Underlying Security
------------------------------------------
Payments. With respect to any Series or Class of Certificates, the Trustee
--------
shall make reasonable efforts to collect all payments required to be made
pursuant to the terms of the Underlying Securities in a manner consistent with
the terms of this Trust Agreement, such Underlying Securities and any related
Credit Support Instruments.
Section 3.03. 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, not later than the close of business on the Business Day on which
the Trustee receives such amounts in the
- 23 -
form of immediately available funds (so long as such funds are received by the
Trustee by 3:00 p.m. New York City time, and on the next Business Day
otherwise), the Trustee shall deposit or cause to be deposited in the
Certificate Account all amounts received by it with respect to the Underlying
Securities, any Credit Support and all Liquidation Proceeds related to such
Series including:
(i) all payments on account of principal of such Underlying
Securities;
(ii) all payments on account of interest on such Underlying
Securities;
(iii) all payments on account of premium (if any) on such
Underlying Securities;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section 4.04; and
(vi) any interest or investment income earned on funds deposited in
the related Accounts.
Unless otherwise specified in the applicable Series Supplement, it
is understood and agreed that payments in the nature of prepayment or
redemption penalties, late payment charges, default interest or reinvestment
income which may be received by the Trustee shall be deposited by the Trustee
in the Certificate Account and shall not be retained by the Trustee for its own
account.
If, at any time, the Certificate Account for any Series ceases to
be an Eligible Account, the Trustee shall within five 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 the Trustee shall within five Business Days transfer any
cash and any investments on deposit in the Certificate Account to such new
Certificate Account, and from the date such new Certificate Account is
established, it shall be the Certificate Account for such Series.
(b) The Trustee shall give notice to the Depositor of the location
of each Eligible Account constituting the Certificate Account and prior to any
change thereof if such Eligible Account is or will be located at an institution
other than United States Trust Company of New York.
Section 3.04. Liquidation of the Underlying Securities. (a)
----------------------------------------
If specified in the applicable Series Supplement, upon the occurrences of
specified events, the Trustee shall direct the Market Agent to sell the
Underlying Securities in compliance with the Sale Procedures and to deposit the
Liquidation Proceeds therefrom into the Certificate Account pursuant to Section
3.03(a) hereof.
- 24 -
(b) If the Trustee is notified by the Depositor that the Underlying
Securities Issuer of any Concentrated Underlying Securities has ceased to be a
reporting company under the Exchange Act, the Trustee shall direct the Market
Agent to sell all of such Concentrated Underlying Securities in compliance with
the Sale Procedures and to deposit the Liquidation Proceeds therefrom into the
Certificate Account pursuant to Section 3.03(a) hereof to be distributed to the
Holders in accordance with Section 4.02 hereof.
Section 3.05. Investment of Funds in the Accounts. The
-----------------------------------
Trustee on behalf of the Trust may direct any depository institution
maintaining the Certificate Account or the Reserve Account, if any, for the
applicable Series and any other segregated Eligible Account the contents of
which are held for the benefit of Certificateholders of such Series (each, an
"ACCOUNT") to invest the funds therein at the specific written direction of
the Depositor in one or more Eligible Investments bearing interest or sold at a
discount, which shall be held to maturity unless payable on demand and which
funds shall not be reinvested upon the maturity or demand for payment of such
Eligible Investment. If the Depositor does not provide any investment
directions by 10:00 a.m. on any Business Day, funds held in any Account will be
invested in the Eligible Investments specified in clause (ii) of the definition
thereof until receipt of investment directions to the contrary. Investments of
such funds shall be invested in Eligible Investments that will mature so that
such funds will be available for distribution on the next Distribution Date.
Except as otherwise provided in the applicable Series Supplement, any earnings
with respect to such Eligible Investments shall be paid to, and any losses with
respect to such Eligible Investments shall be solely for the account of, the
Certificateholders (and, if applicable, the Retained Interest holder) pro rata
in proportion to their interest in the invested funds. In the event amounts on
deposit in an Account are at any time invested in an Eligible Investment
payable on demand, the Trustee shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Eligible
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand same day payment of all amounts due thereunder upon a
determination by the Trustee that such Eligible Investment would not
constitute an Eligible Investment in respect of funds thereafter on
deposit in any Account.
Neither the Trustee nor the Depositor shall in any way be held liable by reason
of any insufficiency in any Account resulting from any loss on any Eligible
Investment made in accordance with this Trust Agreement.
Section 3.06. Maintenance of Credit Support. (a) On the
-----------------------------
applicable Closing Date, the Trustee at the written direction
- 25 -
of the Depositor or, if so specified in the applicable Series Supplement, the
Depositor 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 will make or cause to be made any initial
deposit to the Certificate Account or any Reserve Account (which shall be an
Eligible Account) for the related Series as of the Closing Date. Unless the
Series Supplement for a given Series provides otherwise, if a Reserve Account
exists for such Series, collections with respect to the Underlying Securities
for such Series not distributed to the Certificateholders of such Series shall
be deposited in the Reserve Account. The Reserve Account, if any, shall be an
asset of the Depositor (and the income earned on any amounts held in the
Reserve Account shall be allocable to the Depositor, who agrees to include any
such income in its gross income for all federal, state and local income and
franchise tax purposes) and will not be a part of or otherwise be includible in
the Trust but will be held for the benefit of the Certificateholders.
(b) 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 4.01 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 3.07. Realization Upon Defaulted Underlying
--------------------------------------
Securities. (a) The Trustee, on behalf of the Certificateholders, shall
----------
assert claims under each applicable Credit Support Instrument, and shall take
such reasonable steps as are necessary to receive payment or to permit recovery
thereunder with respect to any defaulted Underlying Securities, subject in all
cases to the provisions of Article VII hereof.
(b) Unless otherwise provided in the related Series Supplement, if
the Trustee, as applicable, is unable to obtain full recovery in respect of a
defaulted Underlying Security and any related Credit Support Instrument
pursuant to Section 3.07(a), the Trustee shall follow or cause to be followed
such normal practices and procedures as it deems necessary or advisable to
realize upon such defaulted Underlying Security and such Credit Support
Instrument, subject in all cases to the provisions of Article VII hereof.
(c) If the Liquidation Proceeds of a defaulted Underlying Security
are less than the sum of (i) the outstanding principal balance of the defaulted
Underlying Security, (ii) interest accrued but unpaid thereon at the applicable
interest rate and (iii) the aggregate amount of expenses incurred
- 26 -
by the Trustee in connection with the practices and procedures referred to in
paragraph (b) of this Section 3.07 to the extent reimbursable under these
Standard Terms and the related Series Supplement, the Trust for the applicable
Series shall recognize a Realized Loss equal to the amount of such difference.
Any such reimbursed Realized Loss shall be allocated pursuant to Section 4.05
among the Certificateholders of such Series in the manner and priority set
forth in the related Series Supplement.
Section 3.08. Retained Interest. The Retained Interest, if
-----------------
any, in any Underlying Security shall initially be held by the Person so
specified in the related Series Supplement as and to the extent specified
therein. With respect to each Underlying Security, unless otherwise specified in
the related Series Supplement, the Retained Interest shall be deducted by the
Trustee from applicable collections in respect of such Underlying Security.
Unless otherwise provided in the applicable Series Supplement, collections in
respect of Retained Interest shall not be deposited in the Certificate Account
for the applicable Series and shall not constitute a part of the Trust for such
Series, but shall instead be distributed to the holder of such Retained
Interest; provided, however, that the Series Supplement for any Series with
respect to which there is a Retained Interest may provide that, notwithstanding
the terms contained herein, commingled amounts received in respect of assets
inclusive of Underlying Securities and Retained Interest may initially be
deposited in a separate and discrete account established by the Trustee 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 Trust Agreement, on each Distribution
Date the Trustee shall allocate on a pari passu basis any partial recovery on an
Underlying Security between (a) the Retained Interest, if any, and (b)
distributions to Certificateholders of the applicable Series.
Section 3.09. Access to Certain Documentation. The Trustee
-------------------------------
shall provide to any Federal, State or local regulatory authority that may
exercise authority over any Certificateholder access to the documentation in
the Trustee's possession regarding the Underlying Securities required by
applicable laws and regulations. Such access shall be afforded without charge,
but only upon reasonable written request and during normal business hours at
the offices of the Trustee designated by it. In addition, access to the
documentation in the Trustee's possession regarding the Underlying Securities
related to a given Series (or Class within such Series) will be provided to any
Certificateholder of such Series (or Class) upon reasonable written request
during normal business hours at the offices of the Trustee designated by it at
the expense of the Certificateholder requesting such access.
Section 3.10. Reports by the Depositor. The Depositor shall:
------------------------
(a) file with the Trustee, within 30 days after the Depositor is
required to file the same with the Commission, copies of the annual reports and
of the information, documents
- 27 -
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) which the
Depositor is required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Depositor is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance by the Depositor
with the conditions and covenants provided for in this Trust Agreement, as may
be required by such rules and regulations, certificates or opinions of
independent accountants, conforming to the requirements of Section 314(e) of
the Trust Indenture Act;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 3.10 as may be required by
rules and regulations prescribed by the Commission; and
(d) furnish to the Trustee, not less often than annually, a
certificate from the principal executive, financial or accounting officer of
the Depositor as to his or her knowledge of the Depositor's compliance with all
conditions and covenants under this Trust Agreement. For purposes of this
paragraph (d) such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Trust Agreement.
Any reports, statements, documents or other information required to be
furnished by the Depositor to the Trustee pursuant to these Standard Terms or
any Series Supplement shall be deemed to have been delivered to the Trustee if
the Trustee is in possession of such reports, statements, documents or other
information at the time they are to be furnished pursuant to these Standard
Terms or any Series Supplement.
Section 3.11. Charges and Expenses. Except as otherwise
--------------------
provided in this Trust Agreement or the related Series Supplement, no amounts
in the nature of fees or charges shall be payable by or withheld from the
Trust, the Depositor or any other person. There shall be no recourse or claim
against the Trust or the property of the Trust for all or any part of any fees
or charges payable to any person.
- 28 -
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions. (a) On each Distribution Date
-------------
for a given Series of Certificates, the Trustee shall apply Available Funds in
the Certificate Account for such Series in the manner and priority set forth in
the Series Supplement for such Series. In any event, however, any amounts
collected during any period shall be distributed to the Certificateholders in
Dollars no later than the Distribution Date immediately following the receipt
thereof.
(b) All distributions on the Certificates shall be payable in
Dollars only from Available Funds, and no provision of this Trust Agreement
shall be deemed to create any obligation on the part of the Trustee or the
Depositor to make any distribution from any other source.
Section 4.02. Distributions on Certificates. (a)
-----------------------------
Distributions on any Certificate that are payable and are punctually paid or
duly provided for on any Distribution Date shall be distributed to the Person
in whose name such Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the related Record Date notwithstanding
the cancellation of such Certificate upon any transfer or exchange subsequent
to such related Record Date.
The distribution of interest and principal on Certificates (in
Dollars) shall be made:
(i) if the Certificateholder is a Depository, to the Depository,
which shall credit the relevant Participant's account at such Depository
in accordance with the policies and procedure of the Depository, or
(ii) if the Certificateholder is not a Depository, at the Corporate
Trust Office (except as otherwise specified pursuant to Section 5.01) 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 5.01 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. Notwithstanding
the foregoing paragraph, with respect to a Certificateholder of
Certificates not held in a Depository and having at least the Minimum
Wire Denomination, such payment shall be made by wire transfer of
immediately available funds to the account designated by such
Certificateholder in a written request received by the Trustee not later
than 10 days prior to such Distribution Date; provided, however, that if
a wire transfer cannot be made for any reason, payment shall be made by
check. The Trustee shall not be required to send federal funds wires
until any corresponding payments which were not same day funds when
received by it have become same day funds.
- 29 -
(b) Each Certificate delivered under this Trust Agreement upon
transfer of or in exchange for or in lieu of any other Certificate shall carry
the rights to interest accrued and undistributed, and to accrue, that were
carried by such other Certificate.
(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 these Standard Terms, the applicable Series Supplement and the
Certificates, except as otherwise provided, (i) all percentages resulting from
any calculation of accrued interest will be rounded, if necessary, to the
nearest 1/100,000 of 1% (.0000001), with five one-millionths of a percentage
point rounded upward, and (ii) all currency amounts will be rounded to the
nearest one-hundredth of a unit (with .005 of a unit being rounded upward).
(e) Unless specified otherwise in a Series Supplement, the final
distribution of principal and/or premium shall be made upon presentation and
surrender of such Certificates at the Corporate Trust Office.
Section 4.03. Reports to Certificateholders. Unless otherwise
-----------------------------
specified in the applicable Series Supplement, on the fifth Business Day
following each such Distribution Date the Trustee shall forward or cause to be
forwarded to the Depositor, each Certificateholder of such Series, to each
Rating Agency rating such Series and such other Persons as may be specified in
such Series Supplement, a statement setting forth:
(i) the amounts received by the Trustee as of the last such
statement in respect of principal, interest and premium on the Underlying
Securities and the Swap Receipt Amount, if any;
(ii) the Swap Distribution Amount, if any, for such date;
(iii) the amount of the distribution on such Distribution Date to
Certificateholders of each Class of such Series allocable to principal of
and premium, if any, and interest on the Certificates of each such Class,
and the amount of aggregate unpaid interest accrued as of such
Distribution Date;
(iv) in the case of each Class of Floating Rate Certificates of
such Series, the respective Floating Pass-Through Rate applicable to each
such Class on such Distribution Date, as calculated in accordance with
the method specified in such Certificates and the related Series
Supplement;
(v) such other customary information as the Trustee deems necessary
or desirable, (or that any such
- 30 -
Certificateholder reasonably requests in writing) to enable such
Certificateholders to prepare their tax returns;
(vi) 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;
(vii) the aggregate stated principal amount and, if applicable,
notional amount of the Underlying Securities 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;
(viii) the aggregate Certificate Principal Balance (or Notional
Amount, if applicable) of each Class of such Series at the close of
business on such Distribution Date, separately identifying any reduction
in such aggregate Certificate Principal Balance (or Notional Amount) due
to the allocation of any Realized Losses on such Distribution Date or
otherwise; and
(ix) 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), (ii), (iii)
and (v) above, the amounts shall be expressed as a dollar amount 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), (ii), (iii) and (v) above, aggregated for such calendar year
or the applicable portion thereof during which such person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as are from
time to time in effect. The Trustee shall supply to Certificateholders who so
request in writing at such Certificateholder's expense all materials received
by the Trustee from the Underlying Securities Issuer.
Section 4.04. Advances. (a) Unless otherwise specified in the
--------
applicable Series Supplement, the Trustee shall have no obligation to make
Advances (as defined below) with respect to the Underlying Securities or in
favor of the Holders of any Series (or Class within such Series) of
Certificates.
(b) 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 4.04, on or prior to each Distribution Date, the Trustee shall advance
or cause to be advanced in immediately available funds for deposit in the
- 31 -
Certificate Account for such Series an advance (each, an "ADVANCE") in an
amount equal, unless otherwise specified in the related Series Supplement, to
the aggregate of distributions of principal, premium (if any) and interest due
on the Underlying Securities for such Series (or Class) during the related
Collection Period, to the extent remaining unpaid at the time of such Advance.
In satisfaction of its obligation to make such Advances, the Trustee shall make
such Advances from its own funds. The Trustee may recover Advances from late
collections received by the Trustee on the applicable Underlying Securities,
proceeds from any applicable Credit Support, if any, and Liquidation Proceeds
with respect to the Underlying Securities for such Series or Class, as
specified in the related Series Supplement, as to which any such unreimbursed
Advance was made.
(c) Notwithstanding any provision herein to the contrary, no
Advance shall be required to be made hereunder if the Trustee reasonably
believes that it will be unable to recover such Advance from related late
collections, Credit Support proceeds, if any, or Liquidation Proceeds with
respect to the applicable Underlying Securities. It is further understood and
agreed that the Trustee shall not be obligated to make any Advances in respect
of reductions in the amount of collections on the Underlying Securities due to
bankruptcy proceedings with respect to the Underlying Securities or the
obligors thereof.
(d) Notwithstanding any provision herein to the contrary, unless
otherwise provided in the Series Supplement for a given Series, any Advances
made in respect of any Underlying Securities related to such Series (or Class
within such Series) that are subsequently deemed by the Trustee to be
nonrecoverable from related late collections, Credit Support proceeds, if any,
or Liquidation Proceeds may be reimbursed to the Trustee through the
application of amounts on deposit in the Certificate Account for such Series
allocable to any of such Underlying Securities prior to the distributions of
interest, premium (if any) and principal with respect to the Certificates of
such Series or Class.
Section 4.05. Allocation of Realized Losses and Trust
----------------------------------------
Expenses. With respect to any Series of Certificates, the manner and
--------
priority of the allocation of Realized Losses, Eligible Expenses, Allowable
Expense Amounts and Extraordinary Trust Expenses, if any, on any Distribution
Date among the Classes, if any, of such Series shall be as set forth in the
related Series Supplement.
Section 4.06. Compliance with Withholding Requirements. (a)
----------------------------------------
Notwithstanding any other provision of this Trust Agreement to the contrary,
the Trustee shall comply with all Federal withholding requirements respecting
distributions to Certificateholders of interest or original issue discount that
the Trustee believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding.
(b) Each Certificateholder will provide the Trustee (and, so long
as the Certificates are held at a Depository in the form of Global
Certificates, each Beneficial Owner of the
- 32 -
Certificates will provide such Depository and the Trustee) with evidence that
there should not be any withholding tax assessed for Federal income tax
purposes in respect of distributions to such Certificateholder, such evidence
to take the form of a statement, on a duly executed and up-to-date Internal
Revenue Service Form W-8 (or successor form), Form W-9 (or successor Form), or
Form 4224 (or successor form), as applicable, that identifies the Beneficial
Owner of the Certificate; provided, however, that for so long as the
Certificates are held at a Depository in the form of Global Certificates, the
Certificateholder shall have no obligation to provide the Trustee with any such
evidence except to the extent it has received such evidence from Beneficial
Owners of the Certificates. The Trustee shall not be required to accept any
such Internal Revenue Service forms if it believes that they are not accurate
(but the Trustee shall not be required to make any independent investigation to
determine their accuracy).
(c) If any tax or other governmental charge shall become payable by
or on behalf of the Trustee, including any tax or governmental charge required
to be withheld from any payment by the Trustee under the provisions of any
applicable law or regulation with respect to any Underlying Securities or the
Certificates, such tax or governmental charge shall be payable by the
Certificateholder and may be withheld by the Trustee. The consent of
Certificateholder shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
distributions or Advances thereof to any Certificateholder pursuant to Federal
withholding requirements, the Trustee shall indicate in the statement required
pursuant to Section 4.03 the amount so withheld.
(d) The Depositor and the Trustee shall have the right to refuse
the surrender, registration of transfer or exchange of any certificate with
respect to which such tax or other governmental charge shall be payable until
such payment shall have been made by the Certificateholder.
Section 4.07. Optional Exchange. (a) The terms and
-----------------
conditions, if any, upon which Certificates of any Series (or Class within such
Series) may be exchanged for a pro rata portion of the Underlying Securities of
the related Trust will be specified in the related Series Supplement; provided,
however, that any right of exchange shall be exercisable only to the extent
that the Depositor provides upon the Trustee's request an Opinion of Counsel
that (i) such exchange would not be inconsistent with the Depositor's and the
Trustee's continued satisfaction of the applicable requirements for exemption
under Rule 3a-7 (or other applicable rule or exemption) under the Investment
Company Act of 1940, as amended, and all applicable rules, regulations and
interpretations thereunder and (ii) such exchange would not affect the
characterization of the Trust 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;
- 33 -
(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 Underlying Securities
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 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 a telegram, telex, facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., the Depository (in accordance with its
normal procedures) or a commercial bank or trust company in the United States
setting forth the name of the Holder of such 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 at 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 shall be in the name of the Holder of such exchanged
Certificate).
- 34 -
(c) Upon the completion of any such Optional Exchange, the Trustee
shall give prompt written notice thereof to each Rating Agency.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates. (a) The Certificates of any
----------------
Series (or Class within such Series) shall be issued in fully registered form
without coupons and shall be substantially in the form of the exhibit with
respect thereto attached to the applicable Series Supplement.
The Certificates may be issued in one or more Series, each of which
series may, subject to the provisions of the Code and the intended status of
each Series Trust to constitute a fixed investment trust for federal income tax
purposes, be issued in one or more Classes, with such further particular
designation added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Depositor may determine.
Each Certificate 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 Trust Agreement shall be in all respects equally and ratably
entitled to the benefits hereof without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Trust Agreement.
(b) Each Series (and all Classes within such Series) of
Certificates shall be created by a Series Supplement authorized by the
Depositor and the Trustee and establishing the terms and provisions of such
Series. The several Series may, subject to the provisions of the Code and the
intended status of each Series Trust to constitute a fixed investment trust for
federal income tax purposes, differ as between Series and any given Class may
vary as between the other Classes within any given Series.
Section 5.02. Execution, Authentication and Delivery. (a) The
--------------------------------------
Certificates shall be executed by the Trustee by a corporate trust officer
thereof, under its corporate seal, which may be in facsimile form and imprinted
or otherwise reproduced thereon. 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 Trustee shall be
binding, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
- 35 -
(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
Trust Agreement or be valid or obligatory for any purpose, unless there appears
on such Certificate a certificate of authentication substantially in one of the
forms provided for herein 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 Trust Agreement.
Section 5.03. Temporary Certificates. Pending the preparation
----------------------
of Definitive Certificates of any Series (or Class within each such Series),
the Depositor may execute, and upon receipt of a Depositor Order, the Trustee
shall authenticate and deliver temporary Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive
Certificates in lieu of which they are issued, in registered form and with such
appropriate insertions, omissions, substitutions and other variations as may be
authorized by such Depositor Order. Any such temporary Certificate may be in
global form, representing all or a portion of the Outstanding Certificates of
such Series or Class. Every such temporary Certificate shall be executed by
the Depositor and shall be authenticated and delivered by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the Definitive Certificate or Definitive Certificates in lieu of which is
issued.
If temporary Certificates of any Series (or Class within such
Series) are issued, the Trustee will cause Definitive Certificates of such
Series or Class to be prepared without unreasonable delay. 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 Delivery Office of the Trustee,
without charge to the Holder, except as provided in Section 5.04 in connection
with a transfer. Upon surrender for cancellation of any one or more temporary
Certificates of any Series or Class within such Series, the Trustee shall
execute, authenticate and deliver in exchange therefore Definitive Certificates
with a like Certificate Principal Balance or Notional Amount, as applicable, of
the same Series (or Class within such Series) of authorized denominations and
of like tenor. Until so exchanged, temporary Certificates of any Series (or
Class within such Series) shall in all respects be entitled to the same
benefits under this Trust Agreement as Definitive Certificates of such Series
or Class, except as otherwise specified in the applicable Series Supplement
with respect to the payment of interest on Global Securities in temporary form.
- 36 -
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.03 or Section 5.04, the
temporary Global Security shall be endorsed by the Trustee to reflect the
reduction of the aggregate Certificate Principal Balance or Notional Amount, as
applicable, evidenced thereby, whereupon the aggregate Certificate Principal
Balance or Notional Amount, as applicable, of such temporary Global Security
shall be reduced for all purposes by the amount so exchanged and endorsed.
Section 5.04. Registration; Registration of Transfer and
-------------------------------------------
Exchange. (a) The Trustee shall cause to be kept a register for each Series
--------
of Registered Certificates (the "CERTIFICATE REGISTER") in which a transfer
agent and registrar (which may be the Trustee) (the "CERTIFICATE
REGISTRAR") shall provide for the registration of Certificates and the
registration of transfers and exchanges of Certificates. The Trustee is hereby
initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided;
provided, however, that the Trustee may appoint one or more co-Certificate
Registrars. Upon any resignation of any Certificate Registrar, the Depositor
shall promptly appoint a successor or, in the absence of such appointment,
assume the duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the Depositor as
Certificate Registrar, the Depositor will give the Trustee prompt written
notice of the appointment of a Certificate Registrar and of the location, and
any change in the location, of the Certificate Register, and the Trustee shall
have the right to rely upon a certificate executed on behalf of the Certificate
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders and the principal amounts and numbers of the Certificates held by each
Holder.
(b) Upon surrender for registration of transfer 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 Trustee shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, of a
like Series, Class and aggregate Certificate Principal Balance or Notional
Amount, as applicable.
(c) Notwithstanding any other provisions of this Section, unless
and until it is exchanged in whole or in part for the individual Certificates
represented thereby, a Global Security representing all or a portion of the
Certificates of a Series (or Class within such Series) may not be transferred
except as a whole by the Depository for such Series or Class to a nominee of
such Depository or by a nominee of such Depository to such Depository or
another nominee of such Depository or by such Depository or any such nominee to
a successor Depository for such Series or Class or a nominee of such successor
Depository.
- 37 -
(d) 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.
(e) If at the time the Depository for the Certificates of a Series
(or Class within such Series) notifies the Depositor that it is unwilling or
unable to continue as Depository for the Certificates of such Series or Class
or if at any time the Depository for the Certificates of such Series or Class
shall no longer be eligible under Section 5.08(b), the Depositor shall appoint
a successor Depository with respect to the Certificates of such Series or
Class. If a successor Depository for the Certificates of such Series or Class
is not appointed by the Depositor within 90 days after the Depositor receives
such notice or becomes aware of such ineligibility, the Depositor's election
pursuant to Section 5.01 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.
(f) The Depositor may at any time and in its sole discretion
determine that individual Certificates of any Series (or Class within such
Series) issued in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Trustee
shall execute, and, 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.
(g) If specified by the Depositor pursuant to Section 5.01 with
respect to a Series (or Class within such Series) of Certificates, the
Depository for such Series may surrender a Global Security for such Series or
Class in exchange in whole or in part for individual Certificates of such
Series or Class on such terms as are acceptable to the Depositor and such
Depository. Thereupon, the Trustee shall execute, and, upon receipt of a
Depositor Order, shall authenticate and deliver, without service charge,
- 38 -
(i) to each Person specified by such Depository a new individual
Certificate or Certificates of the same Series or Class, of any
authorized denomination as requested by such Person in an aggregate
Certificate Principal Balance or Notional Amount, as applicable, equal to
and in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depository a new Global Security in a denomination
equal to the difference, if any, between the aggregate Certificate
Principal Balance or Notional Amount, as applicable, of the surrendered
Global Security and the aggregate Certificate Principal Balance or
Notional Amount, as applicable, of individual Certificates delivered to
Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Trustee shall execute, and, 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
5.04 shall be registered in such names and in such authorized denominations as
the Depository for such Global Security, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificates to the Person in whose
names such Certificates are so registered.
(h) All Certificates issued upon any registration of transfer or
exchange of Certificates shall constitute complete and indefeasible evidence of
ownership in the Trust related to such Certificates and be entitled to the same
benefits under this Trust Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
(i) 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 or
the Certificate Registrar, duly executed, by the Holder thereof or his attorney
duly authorized in writing, with such signature guaranteed by a brokerage firm
or financial institution that is a member of a Securities Approved Medallion
Program such as Securities Transfer Agents Medallion Program (STAMP), Stock
Exchange Medallion Program (SEMP) or New York Stock Exchange Inc. Medallion
Signature Program (MSP).
(j) No service charge shall be made to a Holder for any
registration of transfer or exchange of Certificates, but the Trustee 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,
- 39 -
other than exchanges pursuant to Section 5.03 not involving any transfer.
Section 5.05. Mutilated, Destroyed, Lost and Stolen
--------------------------------------
Certificates. If (i) any mutilated Certificate is surrendered to the Trustee
------------
at the Delivery Office or (ii) the Depositor and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Certificate, and
there is delivered to the Depositor and the Trustee such security or indemnity
as they may require to hold each of them and any Paying Agent harmless, and
neither the Depositor nor the Trustee receives notice that such Certificate has
been acquired by a bona fide purchaser, then the Trustee shall execute and,
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 or 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
Trustee 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 Trust 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 5.06. Persons Deemed Owners. (a) The Depositor, the
---------------------
Trustee and any agent of the Depositor or the Trustee may treat the Person in
whose name any 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 4.02) interest, if any, on such Certificate and for all
other purposes whatsoever, whether or not such Certificate be overdue, and
neither the Depositor or the Trustee, nor any agent of the Depositor or the
Trustee shall be affected by notice to the contrary.
(b) None of the Depositor, the Trustee or any of their agents will
have any responsibility or liability for any aspect of the records relating to
or distributions made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
- 40 -
Section 5.07. Cancellation. Unless otherwise specified
------------
pursuant to Section 5.01 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 the Trustee. 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 Trust Agreement.
Section 5.08. Global Securities. (a) If the Series Supplement
-----------------
pursuant to Section 5.01 provides that a Series (or Class within such Series)
of Certificates shall be represented by one or more Global Securities, then the
Depositor shall execute and, upon receipt of a Depositor Order, 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 Depository for such Global Security or Securities
or the nominee of such Depository, (iii) shall be delivered by the Trustee to
such Depository or pursuant to such Depository's instruction and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for the individual Certificates represented
hereby, this Global Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository or
by the Depository or any such nominee to a successor Depository or a nominee of
such successor Depository."
No Holder of a Certificate of such Series or Class will receive a
Definitive Certificate representing such Holder's interest in such Certificate
or Certificates, except as provided in Section 5.10. Unless and until
definitive, fully registered Certificates (the "DEFINITIVE CERTIFICATES")
have been issued to Holders of such Series or Class pursuant to Section 5.10:
(i) the provisions of this Section 5.08 shall be in full force and
effect;
(ii) the Certificate Registrar and the Trustee shall be entitled to
deal with the Depository for all purposes of this Trust Agreement
(including the distribution of principal of, and premium, if any, and
interest on the Certificates and the giving of instructions or directions
hereunder) as the sole Registered Holder of the Certificates of such
Series or Class, and shall have no obligation to the owners of beneficial
interests in such Series or Class (collectively, the "CERTIFICATE
OWNERS");
(iii) to the extent that the provisions of this Section 5.08
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.08 shall control;
- 41 -
(iv) the rights of Certificate Owners of such Series or class shall
be exercised only through the Depository and shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository or its Participants; and
(v) whenever this Trust Agreement requires or permits actions to be
taken based upon instructions or directions of Registered Holders of
Certificates of such Series or Class evidencing a specified percentage of
the aggregate Voting Rights of such Series or Class, the Depository shall
be deemed to represent such percentage only to the extent that it has
received instructions to such effect from Certificate Owners of such
Series or Class or Participants in such Depository's system owning or
representing, respectively, such required percentage of the beneficial
interest in the Certificates of such Series or Class and has delivered
such instructions to the Trustee.
(b) Each Depository designated pursuant to Section 5.01 for a
Global Security must, at the time of its designation and at all times while it
serves as such Depository, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
Section 5.09. Notices to Depository. Whenever a notice or
---------------------
other communication to the Holders of a Series or Class within such Series
represented by one or more Global Securities is required under this Trust
Agreement, unless and until Definitive Certificates for such Series or Class
shall have been issued to such Certificate Owners pursuant to Section 5.10, the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Certificates of such Series to the Depository, and
shall have no obligation to the Certificate Owners.
Section 5.10. Definitive Certificates. If in respect of a
-----------------------
Series (or Class within such Series) represented by one or more Global
Securities (i) the Depositor advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities with
respect to the Certificates of such Series or Class and the Depositor is unable
to locate a qualified successor, (ii) the Depositor at its option advises the
Trustee in writing that it elects to terminate the book-entry system of such
Series or Class through the Depository or (iii) Certificate Owners representing
beneficial interests aggregating at least a majority (or such other Required
Percentage-Definitive Certificates that may be specified in a Series
Supplement) of the Voting Rights of the Certificates of such Series or Class
advise the Depository in writing that the continuation of a book-entry system
for such Series or Class through the Depository is no longer in the best
interests of the Certificates Owners of such Series or Class, then the
Depository shall notify all Certificate Owners or Participants in the
Depository's system with respect to such Series or Class and the Trustee of the
occurrence of any such event and of the availability of Definitive Certificates
for such Series or Class
- 42 -
to Certificate Owners of such Series or Class requesting the same.
Upon surrender to the Trustee of the Global Securities of such
Series or Class by the Depository, accompanied by registration instructions,
the Depositor shall execute and the Trustee shall authenticate the Definitive
Certificates of such Series or Class in accordance with the instructions of the
Depository. None of the Depositor, the Certificate Registrar or the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates of Series or Class, the Trustee
shall recognize the holders of the Definitive Certificates of such Series or
Class as Holders.
Section 5.11. Conditions of Authentication and Delivery of New
-------------------------------------------------
Series. Certificates of a new Series may be issued at any time and from time
------
to time after the execution and delivery of these Standard Terms and the
related Series Supplement. The Depositor shall execute and deliver
Certificates of such Series to the Trustee 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) The delivery of the Underlying Securities in accordance with
Section 2.01(b);
(2) An Officer's Certificate of the Depositor, dated as of the
Closing Date, to the effect that all of the requirements of this Section
5.11 have been satisfied, and that the Depositor is not in breach of this
Trust Agreement and that the issuance of the Certificates will not result
in any breach of any of the terms, conditions, or provisions of, or
constitute a default under, the Depositor's Memorandum and Articles of
Association, 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;
(3) A Series Supplement consistent with the applicable provisions
of these Standard Terms;
(4) All agreements, instruments or other documents called for by
the applicable Series Supplement as a condition to the issuance of the
Certificates of such Series;
(5) If applicable, a fully executed copy of the Swap Agreement,
together with all documents and opinions required to be delivered to the
Trust upon execution thereof pursuant to the terms thereof; and
(6) Written instructions by the Depositor to the Trustee directing
the Trustee to enter into and perform any
- 43 -
obligations under the Swap Agreement, if applicable, and/or the Market
Agent Agreement, if applicable.
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 5.11 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 this
Section 5.11 shall be true and correct as if made on such date.
Section 5.12. Appointment of Paying Agent. The Trustee may
---------------------------
appoint one or more paying agents (each, a "PAYING AGENT") with respect to
the Certificates of any Series. Any such Paying Agent shall be authorized to
make distributions to Certificateholders of such Series from the Certificate
Account for such Series pursuant to the provisions of the applicable Series
Supplement and shall report the amounts of such distributions to the Trustee.
Any Paying Agent shall have the revocable power to withdraw funds from such
Certificate Account for the purpose of making the distributions referred to
above. The Trustee may revoke such power and remove the Paying Agent if the
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any material
respect. The Paying Agent shall initially be the Trustee and any co-paying
agent chosen by the Trustee and acceptable to the Depositor, 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 Trustee an instrument in which
such successor or additional Paying Agent shall agree with the Trustee that it
will hold all sums, if any, held by it for distribution to the
Certificate-holders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be distributed to such Certificateholders and
will agree to such other matters as are required by Section 317(b) of the Trust
Indenture Act. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal shall also return all funds in its possession to the
Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 7.06 shall apply to
the Trustee also in its role as Paying Agent, for so long as the Trustee shall
act as Paying Agent. Any reference in this Trust Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Notwithstanding anything contained herein to the contrary, the appointment of a
Paying Agent pursuant to this Section 5.12 shall not release the Trustee from
the duties, obligations, responsibilities or liabilities arising under this
Trust Agreement other than with respect to funds paid to such Paying Agent.
- 44 -
Section 5.13. Authenticating Agent. (a) The Trustee may
--------------------
appoint one or more Authenticating Agents (each, an "AUTHENTICATING AGENT")
with respect to the Certificates of any Series which shall be authorized to act
on behalf of the Trustee in authenticating such Certificates in connection with
the issuance, delivery and registration of transfer or exchange of such
Certificates. Whenever reference is made in this Trust Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Depositor. Notwithstanding
anything contained herein to the contrary, the appointment of an Authenticating
Agent pursuant to this Section 5.13 shall not release the Trustee from the
duties, obligations, responsibilities or liabilities arising under this Trust
Agreement.
(b) Any institution succeeding to the corporate agency business of
any Authenticating Agent shall continue to be an Authenticating Agent without
the execution or filing of any power or any further act on the part of the
Trustee or such Authenticating Agent. An Authenticating Agent may at any time
resign by giving notice of resignation to the Trustee and to the Depositor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving notice of termination to such Authenticating Agent and to the Depositor.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time an Authenticating Agent shall cease to be acceptable to the
Trustee or the Depositor, the Trustee promptly may appoint a successor
Authenticating Agent. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless acceptable to the Depositor. The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section. The provisions of Section 7.01, 7.03 and 7.04 shall be
applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
- 45 -
"This is one of the Certificates described in the Standard Terms
and the related Series Supplement.
NAME OF TRUSTEE,
not in its individual
capacity but solely as
Trustee,
By:___________________________
Authorized Officer"
Section 5.14. Voting Rights with Respect to Underlying
-----------------------------------------
Securities. (a) Within five Business Days after receipt of notice of any
----------
meeting of, or other occasion for the exercise of voting rights or the giving
of consents ("VOTING RIGHTS") by, owners of any of the Underlying
Securities, the Trustee shall give notice to the Certificateholders, setting
forth (i) such information as is contained in such notice to owners of
Underlying Securities, (ii) a statement that the Certificateholders will be
entitled, subject to any applicable provision of law and any applicable
provisions of such Underlying Securities (and to the extent of the voting
rights allocated to the Certificateholders pursuant to Section 5.14(b)), to
instruct the Trustee as to the exercise of voting rights, if any, pertaining to
such Underlying Securities and (iii) a statement as to the manner in which
instructions may be given to the Trustee to give a discretionary proxy to a
person designated in the notice received by the Trustee. Such notice shall be
given by the Trustee to the Certificateholders of record on such Record Date.
Upon the written request of the applicable Certificateholder,
received on or before the date established by the Trustee for such purpose, the
Trustee shall endeavor, insofar as practicable and permitted under any
applicable provision of law and any applicable provision of or governing the
Underlying Securities, to vote in accordance with any nondiscretionary
instruction set forth in such written request. The Trustee shall not vote
except as specifically authorized and directed in written instructions from the
applicable Certificateholder entitled to give such instructions.
Notwithstanding the foregoing, if the Trustee determines (based upon advice
furnished by nationally recognized independent tax counsel, whether at the
request of any Certificateholder or otherwise) that the exercise of voting
rights with respect to any Underlying Securities could result in a "sale or
other disposition" of such Underlying Securities within the meaning of Section
1001(a) of the Internal Revenue Code of 1986, as amended, the Trustee shall
exercise such voting rights in a manner that would not result in any such sale
or other disposition. The Trustee will have no responsibility to undertake on
its own initiative to determine that any exercise of voting rights will result
in any such sale or other disposition.
(b) Unless otherwise specified in the applicable Series Supplement,
the voting rights allocable to the owners of the Underlying Securities pursuant
to the terms thereof shall be
- 46 -
allocated among the Certificateholders pro rata, in the proportion that the
denomination of each Certificate bears to the aggregate denomination of all
Certificates.
(c) By accepting delivery of a Certificate, whether upon original
issuance or subsequent transfer, exchange or replacement thereof, and without
regard to whether ownership is beneficial or otherwise, the Certificateholder
agrees so long as it is an owner of such Certificate that it shall not grant
any consent (i) to any conversion of the timing of payment of, or the method or
rate of accruing, interest on the Underlying Securities underlying the
Certificates held by such Certificateholder or (ii) to any redemption or
prepayment of the Underlying Securities underlying the Certificates held by
such Certificateholder. The Trustee shall not grant any consent solicited from
the owners of the Underlying Securities underlying the Certificates with
respect to the matters set forth in this Section nor shall it accept or take
any action in respect of any consent, proxy or instructions received from any
Certificateholder in contravention of the provisions of this Section.
Section 5.15. Actions by Certificateholders. (a) Wherever in
-----------------------------
this Trust Agreement a provision is made that an action may be taken or a
notice, demand or instruction given by Certificateholders or Beneficial Owners,
such action, notice or instruction may be taken or given by any
Certificateholder or Beneficial Owner.
(b) Each Certificateholder or Beneficial Owner shall have the right
to assert any rights and privileges of a Certificateholder or Beneficial Owner,
and shall have the right to proceed directly and individually against any
Person to enforce any remedies hereunder and shall not be required to act in
concert with any other Certificateholder or Beneficial Owner or any other
Person.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder or Beneficial Owner of a Certificate
shall bind such Certificateholder or Beneficial Owner and every subsequent
Certificateholder or Beneficial Owner of such Certificate or any Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted to be done by the
Certificateholder or Beneficial Owner or the Trustee in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(d) Certificateholders of Certificates are beneficial owners of the
right to receive principal payments and interest payments to which such
Certificates relate and, as such, will have the right following an event of
default with respect to any Underlying Security to proceed directly against the
Underlying Securities Issuer(s). Such Certificateholders are not required to
join other Certificateholders of Certificates, the Depositor or the Trustee in
order to proceed against the Underlying Securities Issuer(s).
- 47 -
Section 5.16. Events of Default. If any Event of Default
-----------------
shall occur and be continuing with respect to any Class of Certificates, then,
and in each and every case, the Trustee shall exercise any rights in respect of
the related Underlying Securities as provided in the applicable Series
Supplement.
Section 5.17. Judicial Proceedings Instituted by Trustee;
--------------------------------------------
Trustee May Bring Suit. If there shall be a failure to make payment of the
----------------------
principal of or premium, if any, or interest on any Underlying Security, then
the Trustee, in its own name, and as trustee of an express trust, as holder of
such Underlying Security, shall be, to the extent permitted by and in
accordance with the terms of the Underlying Security, subject to the
limitations on acceleration and the exercise of remedies set forth therein,
entitled and empowered to institute any suits, actions or proceedings at law,
in equity or otherwise, including the power to make a demand on the trustee in
respect of such Underlying Security, if provided for, to take action to enforce
the Underlying Security for the collection of the sums so due and unpaid on
such Underlying Security and may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
Section 5.18. Control by Certificateholders. The Holders of
-----------------------------
Certificates of any Class holding Certificates representing not less than the
Required Percentage-Direction of Trustee of the aggregate Voting Rights of the
Outstanding Certificates of such Class shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee under this
Trust Agreement, including any right of the Trustee as holder of the Underlying
Securities; provided, that:
(1) such direction shall not be in conflict with any rule of law or
with this Trust Agreement and would not involve the Trustee in personal
liability or expense;
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders of Certificates of such
Class not taking part in such direction;
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.19. Waiver of Past Defaults. The Holders of the
-----------------------
Required Percentage-Waiver of Certificates of any Series may direct the Trustee
to vote such percentage of the Underlying Securities held by the Trustee as
corresponds to the percentage of the aggregate Principal Amount of the
Certificates of such Series held by such Holders to waive any past Event of
Default thereunder with respect to such Series of Certificates and its
consequences or may instruct the Trustee to waive any past default under this
Trust Agreement and its consequences, except a default:
- 48 -
(1) in the payment of the principal of or premium, if any, or
interest on the Underlying Securities;
(2) in respect of a covenant or provision hereof which under
Article VIII hereof cannot be modified or amended without the consent of
the Holder of each Outstanding Certificate affected; or
(3) specified in the applicable Series Supplement, if any, unless
the applicable Series Supplement provides otherwise.
Upon any such direction, the Trustee shall vote such percentage of
the Underlying Securities of the corresponding Series held by the Trustee as
corresponds to the percentage of the aggregate Principal Amount of the
Outstanding Certificates of such Series held by Holders who directed the
Trustee to waive such default or Event of Default thereunder. Upon any waiver
that is effective under the terms of such Class of Underlying Securities to
waive such default or Event of Default, such default or Event of Default shall
cease to exist with respect to this Trust Agreement, and, in the case of a
default, any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Trust Agreement and any direction given by the
Trustee on behalf of such Certificateholders or in respect of any Underlying
Securities shall be annulled with respect thereto; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
Section 5.20. Right of Certificateholders to Receive Payments
------------------------------------------------
Not to Be Impaired. Anything in this Trust Agreement to the contrary
------------------
notwithstanding, the right of any Certificateholder to receive distributions of
payments required pursuant to Section 4.01 hereof on the Certificates when due,
or to institute suit for enforcement of any such payment on or after the
applicable Distribution Date or other date specified herein for the making of
such payment, shall not be impaired or affected without the consent of such
Certificateholder.
Section 5.21. Remedies Cumulative. Every remedy given
-------------------
hereunder to the Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor. The Depositor shall
--------------------------
be liable in accordance herewith only to the extent of the obligations
specifically imposed by these Standard Terms and the related Series Supplement.
- 49 -
Section 6.02. Limitation on Liability of the Depositor. (a)
----------------------------------------
The Depositor shall not be under any obligation to expend or risk its own funds
or otherwise incur financial liability in the performance of its duties
hereunder or under a Series Supplement or in the exercise of any of its rights
or power if reasonable grounds exist for believing that the repayment or such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(b) Neither the Depositor nor any of its directors, officers,
employees or agents shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Trust Agreement, or
for errors in judgment; provided, however, that this provision shall not
protect the Depositor against any breach of representations, warranties or
covenants made herein, or against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder.
(c) The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Trust Agreement and, in its opinion, does not
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Trust Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. The
Depositor shall be under no obligation whatsoever to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Underlying
Securities.
(d) The Depositor shall not be liable to any Certificateholder for
any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any Certificateholder of a Certificate or any
other person believed by it in good faith to be competent to give such advice
or information, including, without limitation, the Calculation Agent, the
Market Agent or the other party to this Trust Agreement. The Depositor may
rely and shall be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(e) The Depositor shall not incur any liability to any
Certificateholder if, by reason of any provision of any present or future law,
or regulation thereunder, or any governmental authority, or by any reason of
any act of God or war or other circumstance beyond the control of the relevant
party, the Depositor shall be prevented or forbidden from doing or performing
any act or thing which the terms of this Trust Agreement provide shall be done
or performed; and the Depositor shall not incur any liability to any
Certificateholder by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this Trust
- 50 -
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Trust
Agreement.
Section 6.03. Depositor May Purchase Certificates. The
-----------------------------------
Depositor may at any time purchase Certificates in the open market or
otherwise. Certificates so purchased by the Depositor may, at the discretion
of the Depositor, be held or resold. Certificates beneficially owned by the
Depositor will be disregarded for purposes of determining whether the required
percentage of the aggregate Voting Rights has given any request, demand,
authorization, direction, notice, consent or waiver hereunder.
Section 6.04. Merger or Consolidation of the Depositor.
----------------------------------------
Nothing in this Trust Agreement shall prevent any consolidation or merger of
the Depositor with or into any other corporation, or any consolidation or
merger of any other corporation with or into the Depositor or any sale or
transfer of all or substantially all of the property and assets of the
Depositor to any other Person lawfully entitled to acquire the same; provided,
however, that, so long as Certificates are outstanding hereunder, the Depositor
covenants and agrees that any such consolidation, merger, sale or transfer
shall be upon the condition that the due and punctual performance and
observance of all the terms, covenants and conditions of this Trust Agreement
to be kept or performed by the Depositor shall be assumed by the Person (if
other than the Depositor) formed by or resulting from any such consolidation or
merger, or which shall have received the transfer of all or substantially all
of the property and assets of the Depositor, just as fully and effectually as
if successor Person had been the original party of the first part hereto; and
in the event of any such sale or transfer the predecessor Depositor may be
dissolved, wound up and liquidated at any time thereafter.
Section 6.05. No Liability of the Depositor with Respect to the
--------------------------------------------------
Underlying Securities; Certificateholders to Proceed Directly Against the
--------------------------------------------------------------------------
Underlying Securities Issuer(s). (a) The sole obligor with respect to any
-------------------------------
Underlying Security is the Underlying Securities Issuer(s). The Depositor
shall not have any obligation on or with respect to the Underlying Securities;
and its obligations with respect to Certificates shall be solely as set forth
in this Trust Agreement.
(b) The Depositor is not authorized to proceed against the
Underlying Securities Issuer in the event of a default or to assert the rights
and privileges of Certificateholders of Certificates and has no duty in respect
thereof.
- 51 -
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Duties of Trustee. (a) The Trustee undertakes
-----------------
to perform such duties and only such duties as are specifically set forth in
these Standard Terms and the related Series Supplement. In case an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Trust 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. The
Trustee shall exercise those rights in a manner consistent with the status of
any Trust created hereunder as a fixed investment trust for federal income tax
purposes. The Trustee shall not have any power to vary the investment of any
Certificateholders of any Series or to accept any assets (other than proceeds
of the Underlying Securities) other than the Underlying Securities transferred
to it on the Closing Date of any Series. Any permissive right of the Trustee
enumerated in this Trust Agreement shall not be construed as a duty and shall
be interpreted consistently with the status of the Trust as a fixed investment
trust.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Trust Agreement, shall examine them to determine whether they
conform to the requirements of this Trust Agreement. If any such instrument is
found not to conform to the requirements of this Trust Agreement, the Trustee
shall take action as it deems appropriate to have the instrument corrected, and
if the instrument is not corrected to the Trustee's satisfaction, the Trustee
will provide notice thereof to the Depositor and Certificateholders.
(c) No provision of this Trust Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Trust Agreement, the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust Agreement, no
implied covenants or obligations shall be read into this Trust Agreement
against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee that conform to the
requirements of this Trust Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it
- 52 -
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of the Required
Percentage-Direction of Trustee of the aggregate Voting Rights of a given
Series (or Class or group of Classes within such Series), as specified in
the applicable Series Supplement relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Trust Agreement;
(iv) the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it;
(v) except for actions expressly authorized by this Trust
Agreement, the Trustee shall take no actions reasonably likely to impair
the interests of the Trust in any Underlying Security now existing or
hereafter acquired or to impair the value of any Underlying Security now
existing or hereafter acquired;
(vi) except as expressly provided in this Trust Agreement, the
Trustee shall have no power to vary the corpus of the Trust including by
(A) accepting any substitute obligation or asset for an Underlying
Security initially assigned to the Trustee under Section 2.01, (B) adding
any other investment, obligation or security to the Trust or (C)
withdrawing from the Trust any Underlying Securities;
(vii) in the event that the Paying Agent or the Registrar shall
fail to perform any obligation, duty or agreement in the manner or on the
day required to be performed by the Paying Agent or Registrar, as the
case may be, under this Trust Agreement, the Trustee shall be obligated
promptly upon its knowledge thereof to perform such obligation, duty or
agreement in the manner so required;
(viii) the Trustee shall not be liable to any Certificateholder for
any action or non-action by it in reliance upon the advice of or
information from legal counsel, accountants, any Certificateholder of a
Certificate or any other person believed by it in good faith to be
competent to give such advice or information, including, without
limitation, the Calculation Agent, the Market Agent or the other party to
this Trust Agreement. The Trustee may rely and shall be protected in
acting upon any written notice, facsimile transmission, request,
direction or other
- 53 -
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ix) the Trustee shall not incur any liability to any
Certificateholder if, by reason of any provision of any present or future
law, or regulation thereunder, or any governmental authority, or by any
reason of any act of God or war or other circumstance beyond the control
of the relevant party, the Trustee shall be prevented or forbidden from
doing or performing any act or thing which the terms of this Trust
Agreement provide shall be done or performed; and the Trustee shall not
incur any liability to any Certificateholder by reason of any
non-performance or delay, caused as aforesaid, in the performance of any
act or thing which the terms of this Trust Agreement provide shall or may
be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Trust Agreement;
(x) the Trustee shall be under no obligation whatsoever to appear
in, prosecute or defend any action, suit or other proceeding in respect
of any Underlying Securities;
(xi) whenever in the administration of this Trust Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers'
Certificate; and
(xii) the Trustee may consult with counsel of its selection and, in
the absence of bad faith or willful misconduct, the advice of such
counsel or any Opinion of Counsel selected by the Trustee with due care
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in reliance thereon.
(d) As promptly as practicable after, and in any event within 10
days after, the occurrence of any default (as such term is defined below)
hereunder with respect to any Class of Certificates, the Trustee shall transmit
by mail to the Depositor and the Holders of Certificates of such Class in
accordance with Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of or premium, if any, or interest on any
Underlying Security, the Trustee shall be protected in withholding such notice
if and so long as a trust committee of Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Certificates of such Class. For the purpose of this
Section, the term "DEFAULT" means, with respect to any Class of
Certificates, any event that is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Class of Certificates.
- 54 -
(e) Within five Business Days after the receipt by the Trustee of a
written application by any three or more Certificateholders stating that the
applicants desire to communicate with other Certificateholders with respect to
their rights under this Trust Agreement or under the Certificates, and
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, and by reasonable proof that each such
applicant has owned its Certificates for a period of at least six months
preceding the date of such application, the Trustee shall, at its election,
either:
(i) afford to such applicants access to all information so
furnished to or received by the Trustee; or
(ii) inform such applicants as to the approximate number of
Certificateholders according to the most recent information so furnished
to or received by the Trustee, and as to the approximate cost of mailing
to such Certificateholders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all such Certificateholders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.02. Between Trustee and Sub-Administrative Agents.
---------------------------------------------
(a) Unless otherwise provided in a Series Supplement, the Trustee may enter
into Sub-Administration Agreements with one or more Sub-Administrative Agents
in order to delegate certain of its administrative obligations with respect to
a related Series under this Trust Agreement to such Sub-Administrative Agents;
provided, however, that (i) such delegation shall not release the Trustee from
the duties, obligations, responsibilities or liabilities arising under this
Trust Agreement; (ii) the Rating Agency Condition shall have been satisfied
with respect to the entering into of any such agreement and (iii) such
agreements are consistent with the terms of these Standard Terms and, with
respect to Certificates of any Series, the related Series Supplement. With
respect to any Series (or Class within such Series) of Certificates, each
Sub-Administration Agreement shall impose on the Sub-Administrative Agent
requirements conforming to the provisions set forth in Section 3.01 and provide
for administration of the related Trust and all or certain specified Underlying
Securities for such Series consistent with the terms of this Trust Agreement.
Additional requirements relating to the scope and contents of any
Sub-Administration Agreement may be provided in the applicable Series
Supplement. The Trustee shall deliver to the Depositor copies of all
Sub-Administration Agreements which it enters into, and any amendments or
modifications thereof, promptly upon the Trustee's execution and delivery of
any such instruments.
- 55 -
(b) The Trustee shall 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 Trustee 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 shall administer directly the related
Underlying Securities or shall enter into a Sub-Administration Agreement with a
successor Sub-Administrative Agent which so qualifies under Section 7.02.
(c) Unless otherwise provided in the applicable Series Supplement,
in the event a Sub-Administrative Agent is administering one or more Underlying
Securities pursuant to a Sub-Administration Agreement, the Sub-Administrative
Agent shall be required immediately to 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 all such amounts shall be deposited into the related Certificate Account
not later than the Business Day after receipt thereof.
Section 7.03. Certain Matters Affecting the Trustee. (a)
-------------------------------------
Except as otherwise provided in this Article VII:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, facsimile transmission, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Trust Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Trust Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Trust Agreement;
- 56 -
(v) the Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, facsimile transmission, request,
consent, order, appraisal, approval, bond or other paper or document
believed by it to be genuine, unless requested in writing to do so by
Holders of the Required Percentage-Direction of Trustee of the aggregate
Voting Rights of the affected Series (or Class or Classes within any such
Series), as specified by the applicable Series Supplement; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Trust Agreement, the Trustee may require reasonable
indemnity against such expense or liability as a condition to taking any
such action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys or a custodian; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account or
Reserve Account in accordance with Section 3.05.
(b) All rights of action under this Trust Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the Trustee
shall be brought in its name for the benefit of all the Holders of such
Certificates, subject to the provisions of this Trust Agreement.
Section 7.04. Trustee Not Liable for Recitals in Certificates or
---------------------------------------------------
Underlying Securities. The Trustee assumes no responsibility for the
---------------------
correctness of the recitals contained herein and in the Certificates or in any
document issued in connection with the sale of the Certificates (other than the
signature and authentication on the Certificates). Except as set forth in
Section 7.10, the Trustee makes no representations or warranties as to the
validity or sufficiency of this Trust Agreement or of the Certificates of any
Series (other than the signature and authentication on the Certificates) or of
any Underlying Security or related document. The Trustee shall not be
accountable for the use or application by the Depositor, of any of the
Certificates or of the proceeds of such Certificates.
Section 7.05. Trustee May Own Certificates. The Trustee in
----------------------------
its individual capacity or any other capacity may become the owner or pledgee
of Certificates with the same rights it would have if it were not Trustee;
provided, however, that in determining whether the required percentage of
aggregate Voting
- 57 -
Rights shall have consented to any action hereunder requiring the consent of
the Certificateholders, the Trustee's interest shall be excluded.
Section 7.06. Trustee's Fees and Expenses. (a) The applicable
---------------------------
Series Supplement shall specify the amount and circumstances of the Trustee's
compensation and the source thereof.
(b) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is greater than zero, the Trustee acknowledges that the Depositor
has paid to the Trustee an amount equal to the Prepaid Ordinary Expenses, and
the Trustee agrees that the payment of such amount shall constitute full and
final satisfaction of and payment for all Ordinary Expenses.
(c) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is zero, the Series Supplement may indicate that Ordinary Expenses
will be paid for by the Trust, in which case the Trustee shall be paid on a
periodic basis by the Trust or the Retained Interest at the rate or amount and
on the terms provided for in the Series Supplement. The Trustee agrees that
its right to receive such payments from the Trust shall constitute full and
final satisfaction of and payment for all Ordinary Expenses and that the
Trustee shall have no claim on payment of Ordinary Expenses from any other
source, including the Depositor.
(d) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is zero, the Series Supplement may provide that the Depositor shall
pay to the Trustee from time to time a fee for its services and expenses as
Trustee as set forth in the Series Supplement payable at the times set forth
therein. The Trustee agrees that its right to receive such payments from the
Depositor shall constitute full and final satisfaction of and payment for all
Ordinary Expenses and that the Trustee shall have no claim for payment of
Ordinary Expenses from the Trust. The Trustee further agrees that,
notwithstanding any failure by the Depositor to make such periodic payments of
the Ordinary Expenses, the Trustee shall continue to perform its obligations
under this Trust Agreement. The Depositor's obligations to pay Ordinary
Expenses under this Trust Agreement shall be extinguished and of no further
effect upon the payment of Ordinary Expenses due and owing on the termination
of the Trust pursuant to Section 9.01 hereof.
(e) Subject to subsection 7.06(f), all Extraordinary Expenses, to
the extent not paid by a third party are, and shall be, obligations of the
Trust and when due and payable shall be satisfied solely by the Trust.
(f) The Trustee shall not take any action, including appearing in,
instituting or conducting any action or suit hereunder or in relation hereto
and is not indemnifiable under Section 7.11 hereof which, in the Trustee's
opinion, would or might cause it to incur costs, expenses or liabilities that
are Extraordinary Expenses unless (i) the Trustee is satisfied that it will
have adequate security or indemnity in respect of such
- 58 -
costs, expenses and liabilities, (ii) the Trustee has been instructed to do so
by Certificateholders representing not less than the Required
Percentage-Remedies of the aggregate principal amount of Certificates then
outstanding, and (iii) the Certificateholders, pursuant to the instructions
given under clause (ii) above, have agreed that such costs, expenses or
liabilities shall either be (x) paid by the Trustee from the Trust, in the case
of a vote of 100% of the aggregate principal amount of Certificates then
outstanding, or (y) paid by those Certificateholders who have agreed to bear
the entire amount of such costs, expenses or liabilities, on a pro rata basis
among such Certificateholders.
Section 7.07. Eligibility Requirements for Trustee. (a) The
------------------------------------
Trustee hereunder shall at all times be a corporation or an association which
is not an Affiliate of the Depositor (but may have normal banking relationships
with the Depositor and its Affiliates) organized and doing business under the
laws of any State or the United States, authorized under such laws to exercise
corporate trust powers which shall be eligible to act as a trustee under
Section 310(a) of the Trust Indenture Act, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal or State authority. If such corporation or association 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. In the event that at any
time such Trustee shall cease to be eligible in accordance with the provisions
of this Section, such Trustee shall resign immediately in the manner and with
the effect specified in Section 7.08.
(b) In determining whether the Trustee has a conflicting interest
with respect to any Class of Certificates under Section 310(b) of the Trust
Indenture Act and this Section, each other Class of Certificate will be treated
as having been issued under an indenture other than this Trust Agreement.
Section 7.08. Resignation or Removal of the Trustee; Appointment
---------------------------------------------------
of Successor Trustee. (a) The Trustee may at any time resign as Trustee
--------------------
hereunder by written notice of its election so to do, delivered to the
Depositor, and such resignation shall take effect upon the appointment of a
successor Trustee and its acceptance of such appointment as hereinafter
provided; provided, however, that in the event of such resignation, the Trustee
shall (a) assist the Depositor in finding a successor Trustee acceptable to the
Depositor and (b) negotiate in good faith concerning any prepaid but unaccrued
fees.
(b) The Depositor or Holders of the Required Percentage-Removal of
Trustee of Certificates may at any time remove the Trustee as Trustee hereunder
by written notice delivered to the Trustee in the manner provided in Section
10.04 hereof, and such removal shall take effect upon the appointment of the
successor trustee and its acceptance of such appointment
- 59 -
as provided in the succeeding paragraph; provided, however, that in the event
of such removal, the Depositor shall negotiate in good faith with the Trustee
in order to agree regarding payment of the termination costs of the Trustee
resulting from such removal.
(c) Upon the designation of a successor Trustee, following either
resignation or removal of the Trustee, the Trustee shall deliver to the
successor Trustee all records relating to the Certificates in the form and
manner then maintained by the Trustee, which shall include a hard copy thereof
upon written request of the successor Trustee.
(d) If at any time the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property of affairs for the purpose of
rehabilitation, conservation or liquidation, the Depositor shall petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. In the event the Trustee resigns or is
removed, the Trustee shall reimburse the Depositor for any fees or charges
previously paid to the Trustee in respect of duties not yet performed under
this Trust Agreement which remain to be performed by a successor Trustee.
(e) In case at any time the Trustee acting hereunder notifies the
Depositor that it elects to resign or the Depositor or Holders of the Required
Percentage-Removal of Trustee of Certificates notifies or notify the Trustee
that it or they elects or elect to remove the Trustee as Trustee, the Depositor
shall, within 90 days after the delivery of the notice of resignation or
removal, appoint a successor Trustee, which shall satisfy the requirements for
a trustee under Section 7.07. If no successor Trustee has been appointed
within 90 days after the Trustee has given written notice of its election to
resign or the Depositor or Holders of the Required Percentage-Removal of
Trustee of Certificates have given written notice to the Trustee of its or
their election to remove the Trustee, as the case may be, the Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee. Every successor Trustee shall execute and deliver to its predecessor
and to the Depositor an instrument in writing accepting its appointment
hereunder, and thereupon such successor Trustee, without any further act or
deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor and for all purposes shall be the Trustee under
this Trust Agreement, and such predecessor, upon payment of all sums due it and
on the written request of the Depositor, shall execute and deliver an
instrument transferring to such successor all rights, obligations and powers of
such predecessor hereunder, and shall duly assign, transfer and deliver all
right, title and interest in the Underlying Securities and parts thereof to
such successor. Any successor Trustee shall promptly give notice of its
appointment to the Certificateholders of Certificates for which it is successor
Trustee in the manner provided in Section 10.04 hereof.
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(f) Any corporation into or with which the Trustee may be merged,
consolidated or converted shall be the successor of such Trustee without the
execution or filing of any document or any further act.
Section 7.09. Appointment of Office or Agency. As specified
-------------------------------
in a Series Supplement, the Trustee shall appoint an office or agency in The
City of New York where the Certificates may be surrendered for registration of
transfer or exchange, and presented for the final distribution with respect
thereto, and where notices and demands to or upon the Trustee in respect of the
Certificates of the related Series and this Trust Agreement may be served.
Section 7.10. Representations and Warranties of Trustee. The
-----------------------------------------
Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
association;
(ii) neither the execution nor the delivery by the Trustee of this
Trust Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will contravene any Federal or New York law,
governmental rule or regulation governing the banking or trust powers of
the Trustee or any judgment or order binding on it, or violate its
charter documents or by-laws or constitute a default under (or an event
which, without notice or lapse of time or both, would constitute a
default) under, or result in the breach or acceleration of any material
contract, indenture, mortgage, agreement or instrument to which it is a
party or by which any of its properties may be bound.
(iii) the Trustee has full power, authority and right to execute,
deliver and perform its duties and obligations as set forth herein and in
each Series Supplement to which it is a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Trust Agreement;
(iv) this Trust Agreement has been duly executed and delivered by
the Trustee and constitutes the legal, valid and binding obligation of
the Trustee, enforceable in accordance with its terms, except as
enforcement may be limited by the applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(v) the Trustee is not in violation, and the execution and delivery
of the Trust Agreement by the Trustee and its performance and compliance
with the terms thereof will not constitute a violation, of any order or
decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over the Trustee
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or its properties, which violation would reasonably be expected to have a
material adverse effect on the condition (financial or otherwise) or
operations of the Trustee or its properties or on the performance of its
duties hereunder;
(vi) there are no actions or proceedings against, or investigations
of, the Trustee pending, or, to the knowledge of the Trustee, threatened,
before any court, administrative agency or other tribunal (A) that could
reasonably be expected to prohibit its entering into the Trust Agreement,
(B) seeking to prevent the issuance of the Certificates contemplated by
the Trust Agreement or (C) that could reasonably affect the performance
by the Trustee of its obligations under, or the validity or
enforceability against the Trustee of, the Trust Agreement; and
(vii) no consent, approval, authorization or order of any court,
governmental agency or body is required for the execution, delivery and
performance by the Trustee of, or compliance by the Trustee with, the
Trust Agreement, or for the consummation of the transactions contemplated
by the Trust Agreement, except for such consents, approvals,
authorizations and orders, if any, that have been obtained prior to the
Closing Date.
The representations and warranties of the Trustee set forth in this Section
7.10 shall survive the receipt of Underlying Securities by the Trustee and
shall survive the delivery of the Trust Agreement by the Trustee to the
Depositor.
Section 7.11. Indemnification of Trustee by the Depositor;
---------------------------------------------
Contribution. (a) The Depositor agrees, to the extent the Trustee is not
------------
reimbursed pursuant to Section 7.06 hereof, to indemnify the Trustee against,
and hold it harmless from, any loss, expense or liability incurred in
connection with any legal action relating to this Trust Agreement or the
Certificates or the performance of any of the Trustee's duties hereunder, other
than any loss, liability or expense (i) that constitutes a specific liability
of the Trustee under this Trust Agreement or (ii) incurred by reason of wilful
misfeasance, bad faith or negligence in the performance of the Trustee's duties
hereunder or by reason of reckless disregard of the Trustee's obligations and
duties hereunder or as a result of a breach of the Trustee's obligations and
duties hereunder.
(b) If the indemnification provided for in the preceding paragraph
is invalid or unenforceable in accordance with its terms, then the Depositor
shall contribute to the amount paid or payable by the Trustee as a result of
such liability in such proportion as is appropriate to reflect the relative
benefits received by the Depositor on one hand and the Trustee as Trustee on
the other hand. For this purpose (i) the benefits received by the Depositor
shall be the aggregate amount received by it upon the sale of such
Certificates, less the costs and expenses of such sale, including the cost of
acquisition of the Underlying Securities or parts thereof evidenced thereby,
and (ii) the benefits received by the Trustee as Trustee shall be the aggregate
amount of fees received by it as Trustee, less costs
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and expenses incurred by it as Trustee in relation to such Certificates. If,
however, the allocation provided by the immediately preceding two sentences is
not permitted by applicable law, then the Depositor shall contribute to such
amount paid or payable by the Trustee in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Depositor on the one hand and the Trustee on the other in connection with the
actions or omissions which resulted in such liability, as well as any other
relevant equitable considerations.
(c) In case any claim shall be made or action brought against the
Trustee for any reason for which indemnity may be sought against the Depositor
as provided above, the Trustee may promptly notify the Depositor in writing
setting forth the particulars of such claim or action and the Depositor may
assume the defense thereof. In the event that the Depositor assumes the
defense, the Trustee shall have the right to retain separate counsel in any
such action but shall bear the fees and expenses of such counsel unless (i) the
Depositor shall have specifically authorized the retaining of such counsel or
(ii) the parties to such suit include the Trustee and the Depositor, and the
Trustee has been advised in writing by such counsel that one or more legal
defenses may be available to it which may not be available to the Depositor, in
which case the Depositor shall not be entitled to assume the defense of such
suit notwithstanding its obligation to bear the reasonable fees and expenses of
such counsel.
(d) The term "LIABILITY", as used in this Section 7.11, shall
include any losses, claims, damages, expenses (including without limitation the
Trustee's reasonable costs and expenses) in defending itself against any
losses, claims or investigations of any nature whatsoever.
(e) The obligations of the Depositor under this Section 7.11 shall
be in addition to any liability which the Depositor may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Trustee, and to each person, if any, who controls the Trustee within the
meaning of the Exchange Act.
(f) Notwithstanding anything to the contrary contained in this
Section 7.11, the Depositor shall not be liable for settlement of any such
claim by the Trustee entered into without the prior written consent of the
Depositor, which consent shall not be unreasonably withheld.
(g) The indemnity provided in this Section shall survive the
termination or discharge of this Trust Agreement.
Section 7.12. No Liability of the Trustee with Respect to the
------------------------------------------------
Underlying Securities; Certificateholders to Proceed Directly Against the
--------------------------------------------------------------------------
Underlying Securities Issuer(s). (a) The sole obligor with respect to any
-------------------------------
Underlying Security is the Underlying Securities Issuer(s). The Trustee shall
not have any obligation on or with respect to the Underlying Securities; and
- 63 -
its obligations with respect to Certificates shall be solely as set forth in
this Trust Agreement.
(b) The Trustee is not authorized to proceed against the Underlying
Securities Issuer in the event of a default or to assert the rights and
privileges of Certificateholders of Certificates and has no duty in respect
thereof except as expressly provided herein.
Section 7.13. The Depositor To Furnish Trustee with Names and
------------------------------------------------
Addresses of Certificateholders. The Depositor will furnish to the Trustee
-------------------------------
within 15 days after each Record Date with respect to any Distribution Date,
and at such other times as the Trustee may request in writing, within 30 days
after receipt by the Depositor of any such request, a list, in such form as the
Trustee may reasonably require, of all information in the possession or control
of the Depositor as to the names and addresses of the Certificateholders, in
each case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole
Registrar, no such list need be furnished.
Section 7.14. Preservation of Information. The Trustee shall
---------------------------
preserve, in as current a form as is reasonably practicable, the names and
addresses of Certificateholders contained in the most recent list furnished to
the Trustee as provided in Section 7.13, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in
Section 7.13, upon receipt of a new list so furnished.
Section 7.15. Reports by Trustee. If required, within 60 days
------------------
after [________] of each year, commencing with the year 199__, the Trustee
shall transmit to the Certificateholders, as provided in Section 313(c) of the
Trust Indenture Act, a brief report dated as of such [________], if required by
Section 313(a) of the Trust Indenture Act.
Section 7.16. Trustee's Application for Instructions from the
------------------------------------------------
Depositor. Any application by the Trustee for written instructions from the
---------
Depositor may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Trust Agreement and
the date on and/or after which such action shall be taken or such omission
shall be effective, if, but only if, the obligations of the Trustee with
respect to such proposed action or omission are not set forth reasonably
clearly in these Standard Terms and the related Series Supplement. The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than 10 Business
Days after the date an officer of the Depositor actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless, prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken
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or omitted; provided, however, that this provision shall not protect the
Trustee from liability for any action or omission constituting willful
misconduct, bad faith or negligence.
ARTICLE VIII
MARKET AGENT
Section 8.01. Market Agent. (a) If specified for a specific
------------
Series, on the Closing Date the Trustee shall enter into a Market Agent
Agreement with Citicorp Securities, Inc., as the initial Market Agent, in the
form attached to the related Series Supplement. The Market Agent shall serve
as such under the terms and provisions hereof and of the Market Agent
Agreement. The Market Agent, including any successor appointed pursuant
hereto, shall be a member of the National Association of Securities Dealers,
Inc., have capitalization of at least $25,000,000, and be authorized by law to
perform all the duties imposed upon it by this Trust Agreement and the Market
Agent Agreement. The Market Agent may be removed at any time by the Trustee,
acting at the written direction of the Depositor; provided, however, that such
removal shall not take effect until the appointment of a successor Market
Agent. The Market Agent may resign upon 30 days' written notice delivered to
the Trustee. The Depositor shall use its best efforts to appoint a successor
Market Agent that is a qualified institution, effective as of the effectiveness
of any such resignation or removal.
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation of All Underlying
-----------------------------------------------
Securities. (a) The respective obligations and responsibilities under this
----------
Trust Agreement of the Depositor and the Trustee (other than the obligations of
the Trustee to make distributions to Holders of the Certificates of any given
Series as hereafter set forth and to provide information reports and
information tax reporting) shall terminate upon the distribution to such
Holders of all amounts held in all the Accounts for such Series and required to
be paid to such Holders pursuant to this Trust Agreement on the Distribution
Date coinciding with the final payment on or other liquidation (which may
include redemption or other purchase thereof by the applicable Underlying
Securities Issuer) (or any Advance with respect thereto) of the last Underlying
Security remaining in the Trust for such Series or the disposition of all
property acquired upon liquidation of any such Underlying Security; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of
St. Xxxxx, living on the date hereof.
(b) Written notice of any termination shall be provided as set
forth in Section 10.04.
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(c) 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 9.01(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 4.01 in respect of the
Certificates so presented and surrendered, or (ii) as specified in the
applicable Series Supplement, if in connection with the Trustee's sale of all
the remaining Underlying Securities. Any funds not distributed on such
Distribution Date shall be set aside and held in trust for the benefit of
Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner, and shall be disposed of in accordance with this Section 9.01
and Section 4.01 hereof. Immediately following the deposit of funds in trust
hereunder, the Trust for such Series shall terminate. Subject to applicable
escheat laws, the Trustee shall pay to the Depositor any cash that remains
unclaimed, together with interest, if any, thereon, held by the Trustee on the
date two years after such termination.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment. (a) This Trust Agreement may be
---------
amended from time to time by the Depositor and the Trustee without the consent
of any of the Certificateholders for any of the following purposes: (i) to cure
any ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or to provide for any
other terms or modify any other provisions with respect to matters or questions
arising under this Trust Agreement which shall not adversely affect the
interests of the Holders in any material respect; (ii) to evidence and provide
for the acceptance of appointment hereunder of a change in Trustee as Trustee
for a Series of Certificates subsequent to the Closing Date for such Series,
and to add to or change any of the provisions of this Trust Agreement as shall
be necessary to provide for or facilitate the administration of the separate
Trusts hereunder by more than one trustee, pursuant to the requirements of
Section 5.01 hereof; or (iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Certificate of
one or more Series or to add or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the administration
of the trusts hereunder; provided, however, that in the case of any amendment
the Rating Agency Condition shall be satisfied with respect to such amendment
and that no such amendment shall cause any Trust created hereunder to fail to
qualify as a "grantor trust" for U.S. Federal income tax purposes.
(b) Without limiting the generality of the foregoing, with respect
to any Series this Trust Agreement may also be modified or amended from time to
time by the Depositor and the Trustee with the consent of the Holders of
Certificates
- 66 -
representing the Required Percentage-Amendment of the aggregate Voting Rights
of those Certificates to which such modification or amendment relates for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Trust Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received on Underlying Securities which are required to be distributed
on any Certificate without the consent of the Holders of such Certificates,
(ii) adversely affect in any material respect the interests of the Holders of
any Series (or Class within such Series) of Certificates in a manner other than
as described in (i), without the consent of the Holders of Certificates of such
Series or Class evidencing not less than the Required Percentage-Amendment of
the aggregate Voting Rights of such Series or Class or (iii) reduce the
percentage of aggregate Voting Rights required by (ii), as described in (ii),
without the consent of the Holders of all Certificates of such Series or Class
then Outstanding.
Notwithstanding any other provision of this Trust Agreement, for
purposes of the giving or withholding of consents pursuant to this Section
10.01, Certificates registered in the name of the Depositor or the Trustee or
any affiliate thereof shall be entitled to Voting Rights with respect to
matters affecting such Certificates; and provided, further, that in the event
the Rating Agency Condition is not satisfied with respect to such modification
or amendment, the Required Percentage-Amendment shall be increased to require
an aggregate percentage of the aggregate Voting Rights in the amount specified
in the applicable Series Supplement. Notwithstanding any other provision of
this Trust Agreement, this Section 10.01(b) shall not be amended without the
unanimous consent of the Holders of all such Certificates.
(c) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or
modification to each Certificateholder of the affected Series or Class and to
the Rating Agency. It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Section 10.02. Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Trust Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
applicable Trust, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them.
(b) No Certificateholder of a given Series shall have any right to
vote (except as expressly provided for herein) or in
- 67 -
any manner otherwise control the operation and management of any Trust, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute
the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Trust
Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have any right by
virtue of any provision of this Trust Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this Trust
Agreement, unless (i) such Holder previously shall have given to the Trustee a
written notice of breach and of the continuance thereof, (ii) the Holders of
Certificates of such Series evidencing not less than the Required
Percentage-Remedies of the aggregate Voting Rights of such Series shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, (iii) the Trustee, for 15
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding, and
(iv) no direction inconsistent with such written request has been given to the
Trustee during such 15-day period by Certificateholders evidencing not less
than the Required Percentage-Remedies of the aggregate Voting Rights of such
Series. It is understood and agreed that the Trustee shall not be obligated to
make any investigation of matters arising under this Trust Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any Certificateholders unless such
Certificateholders have offered to the Trustee the reasonable indemnity
referred to above. It is further understood and agreed, and expressly
covenanted by each Certificateholder of each Series with every other
Certificateholder of such Series and the Trustee, that no one or more Holders
of Certificates of such Series shall have any right in any manner whatever by
virtue of any provision of this Trust Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates of such Series, or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Trust Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 10.03. Governing Law. THIS TRUST AGREEMENT SHALL BE
-------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK AND WITHOUT GIVING EFFECT TO SUCH STATE'S PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
- 68 -
JURISDICTION WOULD BE REQUIRED THEREBY, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 10.04. Notices. (a) All directions, demands and
-------
notices hereunder shall be in writing and shall be delivered as set forth in
the applicable Series Supplement.
(b) Any notice required to be provided to a Holder shall be given
by first class mail, postage prepaid, at the last address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Trust Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice.
(c) Any and all notices to be given to the Depositor shall be
deemed to have been duly given if sent by facsimile transmission to the
Depositor at P.O. Box 1984, Elizabethan Square, Xxxxxx Town, Grand Cayman,
Cayman Islands, British West Indies. The Depositor may change this information
by written notice to the Trustee.
(d) Any and all notices to be given to the Trustee shall be deemed
to have been duly given if sent by facsimile transmission to the Trustee at 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Trust
Certificates, Elmwood Funding Limited, referencing the designation of the
applicable Series of Certificates, facsimile transmission number (212)
000-0000, telephone confirmation number (000) 000-0000. The Trustee may change
this information by notice to the Depositor.
(e) Any and all notices to be given to the Swap Counterparty, if
any, will be specified in the Series Supplement.
Section 10.05. Notice to Rating Agencies. (a) The Trustee
-------------------------
shall use its best efforts promptly to provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any change or amendment to this Trust Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the final payment to Holders of the Certificates of any
Class;
(iv) any change in the location of the Certificate Account; and
(v) any event that would result in the inability of the Trustee to
make Advances.
(b) In addition, the Trustee shall promptly furnish to each Rating
Agency copies of each report to Certificateholders described in Section 4.02.
- 69 -
(c) Any such notice pursuant to this Section shall be in writing
and shall be deemed to have been duly given if personally delivered or mailed
by first class mail, postage prepaid, or by express delivery service to each
Rating Agency at the address specified below or in the applicable Series
Supplement.
(d) (i) Any and all notices to be given to Moody's shall be deemed
to have been duly given if sent by facsimile transmission to Moody's at Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
CBO/CLO Monitoring Department, facsimile transmission number (000) 000-0000,
telephone confirmation number (000) 000-0000. Moody's may change this
information by notice to the Depositor and the Trustee.
(ii) Any and all notices to be given to S&P shall be deemed to have
been duly given if sent by facsimile transmission to S&P at Standard & Poor's
Rating Group, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured
Finance Surveillance Group, facsimile transmission number (000) 000-0000,
telephone confirmation number (000) 000-0000. S&P may change this information
by notice to the Depositor and the Trustee.
Section 10.06. Severability of Provisions. If any one or more
--------------------------
of the covenants, agreements, provisions or terms of this Trust Agreement shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Trust Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Trust
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Grant of Security Interest. (a) It is the
--------------------------
express intent of the parties hereto that each conveyance of any Underlying
Securities by the Depositor to the Trustee be, and be construed as, a sale of
the Underlying Securities by the Depositor and not a pledge of any Underlying
Securities by the Depositor to secure a debt or other obligation of the
Depositor.
(b) In the event that, notwithstanding the aforementioned intent of
the parties, any Underlying Securities are held to be property of the
Depositor, then, (x) it is the express intent of the parties that such
conveyance be deemed a pledge of such Underlying Securities by the Depositor to
the Trustee to secure a debt or other obligation of the Depositor and (y)(1)
this Trust Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York, or such other State as may be specified
in the related Series Supplement; (2) the conveyance provided for in Section
2.01 hereof shall be deemed to be a grant by the Depositor to the Trustee of a
security interest in all the Depositor's right, title and interest in and to
such Underlying Securities and all amounts payable to the holders of such
Underlying Securities in accordance with the terms hereof and all proceeds of
the conversion, voluntary or involuntary, of the
- 70 -
foregoing into cash, instruments, securities or other property including all
amounts from time to time held or invested in the applicable Certificate
Account, whether in the form of cash, instruments, securities or other
property; (3) the obligations secured by such security agreement shall be
deemed to be all the Depositor's obligations under this Trust Agreement,
including the obligation to provide to the Certificateholders the benefits of
this Trust Agreement relating to such Underlying Securities and the applicable
Trust; and (4) notifications to persons holding such property, and
acknowledgements, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgements, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law.
Accordingly, the Depositor hereby grants to the Trustee a security
interest in the Underlying Securities and all other property described in
clause (y)(2) of the preceding paragraph, for the purpose of securing to the
Trustee the performance by the Depositor of the obligations described in clause
(y)(3) of the preceding paragraph. Notwithstanding the foregoing, the parties
hereto intend the Grant pursuant to Section 2.01 to be a true, absolute and
unconditional sale of the Underlying Securities and assets constituting the
applicable Trust by the Depositor to the Trustee.
(c) The Depositor and the Trustee shall, to the extent consistent
with this Trust Agreement, take such actions as may be necessary to ensure
that, if this Trust Agreement were deemed to create a security interest in the
Underlying Securities, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such for so long as any of the Underlying Securities remain outstanding.
Without limiting the generality of the foregoing, the Trustee shall file, or
shall cause to be filed, all filings necessary to maintain the effectiveness of
any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in or lien on
the Underlying Securities, including (x) continuation statements and (y) such
other statements as may be occasioned by (1) any change of name of the
Depositor or the Trustee, (2) any change of location of the place of business
or the chief executive office of the Depositor or (3) any transfer of any
interest of the Depositor in any Underlying Security.
Section 10.08. Nonpetition Covenant. Notwithstanding any
--------------------
prior termination of this Trust Agreement, each of the Trustee (including any
Sub-Administrative Agent, Authenticating Agent, Calculation Agent and Paying
Agent) and the Depositor agrees that it shall not, until the date which is one
year and one day after such termination, 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,
- 71 -
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or all
or any part of the property or assets of the Trust or ordering the winding up
or liquidation of the affairs of the Trust.
Section 10.09. No Recourse. Neither the Trustee (including
-----------
any Sub-Administrative Agent, Authenticating Agent, Calculation Agent, or
Paying Agent) nor the Depositor shall have any recourse to the Underlying
Securities, except as specifically provided in the related Series Supplement.
Section 10.10. Article and Section References. All article
------------------------------
and section references used in these Standard Terms, unless otherwise provided,
are to articles and sections in these Standard Terms.
Section 10.11. Counterparts. These Standard Terms may be
------------
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute one and the same instrument.
Section 10.12. Trust Indenture Act Controls. This Trust
----------------------------
Agreement is subject to the provisions of the Trust Indenture Act and shall, to
the extent applicable, be governed by such provisions. The Trustee agrees to
take all actions within its control to prevent these Standard Terms, as
supplemented by any Series Supplements, from failing to qualify under the Trust
Indenture Act.
- 72 -
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.
ELMWOOD FUNDING LIMITED,
as Depositor
By:_____________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK,
as Trustee
By:_____________________________
Name:
Title:
- 73 -
Reconciliation and tie between the Trust Agreement, dated as of
February [__], 1997, and the Trust Indenture Act of 1939, as amended. This
reconciliation does not constitute part of Trust Agreement.
Trust Indenture Act Trust
of 1939 Section Agreement Section
-----------------
310(a)(1) 7.07
(a)(2) 7.07
(a)(5) 7.07
312(a) 7.14
313(a) 7.16
314(a) 3.10
(b) 3.11(d)
(c)(1) 1.03
(c)(2) 1.03
(e) 1.03
315(a)(1) 7.01
315(a)(2) 7.03
315(b) 7.01(d)
315(d) 7.01(c)
316(a)(1)(A) 5.18
(a)(1)(B) 5.19
(b) 5.20
(c) 1.03(b)
317(a)(1) 5.17
(b) 5.12
318(a) 10.12
SERIES SUPPLEMENT
[NAME OF] CERTIFICATES
SERIES 199[__]-[SERIES DESIGNATION]
between
ELMWOOD FUNDING LIMITED,
as Depositor
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
[NAME OF] CERTIFICATES
Dated as of [Month __, 199_]
TABLE OF CONTENTS
SCHEDULE I SERIES 199[__]-[SERIES DESIGNATION] UNDERLYING
SECURITIES SCHEDULE
SCHEDULE II DESCRIPTION OF THE RETAINED INTEREST
SCHEDULE III DESCRIPTION OF THE CALL WARRANT
EXHIBIT A STANDARD TERMS FOR TRUST AGREEMENTS
EXHIBIT B FORM OF TRUST CERTIFICATE
EXHIBIT C FORM OF MARKET AGENT AGREEMENT
[NAME OF] CERTIFICATES
SERIES SUPPLEMENT
SERIES 199[__]-[SERIES DESIGNATION]
SERIES SUPPLEMENT, SERIES 199[__]-[SERIES DESIGNATION], dated as of
[Month __, 199_] (the "SERIES SUPPLEMENT"), by and between ELMWOOD FUNDING
LIMITED, a Cayman Islands company as Depositor (the "DEPOSITOR"), and
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee (the "TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated
herein (the "TRUST") by executing and delivering this Series Supplement,
which shall incorporate the terms of the Standard Terms for Trust Agreements,
dated as of February [__], 1997 (the "STANDARD TERMS"; together with this
Series Supplement, the "TRUST AGREEMENT"), by and between the Depositor and
the Trustee, as modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit the Underlying Securities
set forth on Schedule I attached hereto (the "UNDERLYING SECURITIES
SCHEDULE") into the Trust;
WHEREAS, in connection with the creation of the Trust and the
deposit therein of the Underlying Securities, it is desired to provide for the
issuance of trust certificates (the "CERTIFICATES"), the Retained Interest
(the "RETAINED INTEREST") and the Call Warrant (the "CALL WARRANT")
evidencing undivided interests in the Trust; and
WHEREAS, the Trustee has joined in the execution of the Standard
Terms and this Series Supplement to evidence the acceptance by the Trustee of
the Trust;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee as follows:
Section 1. Incorporation of Standard Terms. All of the
-------------------------------
provisions of the Standard Terms, a copy of which is attached hereto as Exhibit
A, are hereby incorporated herein by reference in their entirety and this
Series Supplement and the Standard Terms shall form a single agreement between
the parties. In the event of any inconsistency between the provisions of this
Series Supplement and the provisions of the Standard Terms, the provisions of
this Series Supplement will control with respect to the transactions described
herein.
Section 2. Definitions. Except as otherwise specified herein
-----------
or as the context may otherwise require, the following terms shall have the
respective meanings set forth below for all
- 2 -
purposes under this Series Supplement. Capitalized terms used but not defined
herein shall have the meanings assigned to them in the Standard Terms.
* * *
Section 3. Designation of Trust and Certificates. (a) The
-------------------------------------
Trust created hereby shall be known as the "[Name of] Certificates Trust,
Series 199[__]-[SERIES DESIGNATION]", the Certificates evidencing certain
undivided ownership interests therein shall be known as "[Name of]
Certificates, Series 199[__]-[SERIES DESIGNATION]", the Retained Interest
evidencing certain undivided ownership interests in the remainder of the
Underlying Securities (as described on Schedule II hereto) shall be known as
the "Series 199[__]-[SERIES DESIGNATION] Retained Interest" and the Call
Warrant evidencing certain undivided ownership interests in the remainder of
the Underlying Securities (as described on Schedule III hereto) shall be known
as the "Series 199[__]-[SERIES DESIGNATION] Call Warrant".
(b) The Certificates shall be held through the Depository in
book-entry form and shall be substantially in the form attached hereto as
Exhibit B. The Certificates shall be issued in minimum denominations of $1,000
and integral multiples of $1,000 in excess thereof. Except as provided in the
Standard Terms, the Trust shall not issue additional Certificates or incur any
indebtedness.
(c) The Retained Interest will be uncertificated and shall be as
described in Schedule II attached hereto. The Retained Interest will be issued
to the Depositor and may be transferred by the Depositor to another party at
the sole option of the Depositor without the consent of the Certificateholders
or any other party. The beneficial ownership interest in the Retained Interest
will be recorded on the records of the Trustee. On each Distribution Date,
payments will be made on the Retained Interest by wire transfer to the
account(s) of holder(s) thereof on the related Record Date as specified in
written instructions to the Trustee. Notwithstanding any other provision of
this Agreement, the Trustee shall not agree to any amendment or modification of
this Agreement (including the Standard Terms) which would adversely affect in
any material respect the holder of the Retained Interest without the consent of
the holder of the Retained Interest.
Section 4. Satisfaction of Conditions to Initial Execution and
----------------------------------------------------
Delivery of Trust Certificates. The Trustee hereby acknowledges receipt, on
------------------------------
or prior to the Closing Date, of:
(i) the Underlying Securities set forth on the Underlying
Securities Schedule; and
(ii) all documents required to be delivered to the Trustee pursuant
to Section 2.01 of the Standard Terms.
Section 5. Distributions. (a) On each Distribution Date other
-------------
than the Redemption Date, the Trustee shall apply
- 3 -
Available Funds in the Certificate Account as follows (subject to Section 5(c)
below):
(i) first, to the Certificateholders and the holder of the Retained
Interest, proportionately to the ratio of their respective entitlements
to interest, the Required Interest and the Interest Strip, respectively;
and
(ii) second, to the Certificateholders, Required Principal, if any.
(b) On the Redemption Date, if applicable, the Trustee shall apply
Available Funds in the Certificate Account as follows:
(i) first, to the Certificateholders and the holder of the Retained
Interest, proportionately to the ratio of their respective entitlements
to interest, the Required Interest and the Interest Strip, respectively;
(ii) second, to the Certificateholders, Required Principal;
(iii) third, to any creditors of the Trust in satisfaction of
liabilities thereto; and
(iv) fourth, to the Warrantholder, any remaining amounts.
(c) Amounts recovered in respect of the Underlying Securities
following a default by the Underlying Securities Issuer under the Underlying
Securities Indenture shall, to the extent allocable to interest, be distributed
in accordance with the provisions of Section 5(a)(i), and, to the extent
allocable to principal, in accordance with the provisions of Section 5(a)(ii).
Section 6. Trustee's Fees. (a) As compensation for its
--------------
services hereunder, the Trustee shall be entitled to Ordinary Expenses. The
Ordinary Expenses will be paid to the Trustee by the holder of the Retained
Interest which, for convenience, may be retained out of the Interest Strip on
each Distribution Date.
(b) Extraordinary Expenses shall not be paid out of the Trust
Property unless (i) such Extraordinary Expenses relate to a time when the
Underlying Securities Issuer was in default of any payment obligation under the
Underlying Securities Indenture, or (ii) Certificateholders representing 100%
of the aggregate Voting Rights of the Certificates have voted to require the
Trustee to incur such Extraordinary Expenses.
Section 7. Events of Default. Within 30 days of the
-----------------
occurrence of an Event of Default, the Trustee will give notice to the
Certificateholders, the Warrantholder and the holder of the Retained Interest,
transmitted by mail, of all such uncured or unwaived Events of Default known to
it.
- 4 -
Section 8. Miscellaneous.
-------------
(a) The Trustee shall forward reports to Certificateholders
pursuant to Section 4.03 of the Standard Terms to the New York Stock Exchange.
(b) In any conflict between the provisions of the Prospectus
Supplement and this Agreement (including the Standard Terms), the provisions of
the Prospectus Supplement shall prevail. Any affirmative statement of rights
or obligations of Certificateholders or the parties hereto included in the
Prospectus Supplement shall be deemed to be included herein.
(c) If the Trustee has not received payment with respect to a
Collection Period on the Underlying Securities on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of such
payment. No additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Certificateholders and the holder of
the Retained Interest, proportionately to the ratio of their respective
entitlements to interest.
(d) In any conflict between the provisions of this Series
Supplement and the Standard Terms, the provisions of this Series Supplement
shall control.
(e) The outstanding principal balance of the Certificates shall not
be reduced by the amount of any Realized Loss (as defined in the Standard
Terms).
Section 9. Notices. All directions, demands and notices
-------
hereunder or under the Standard Terms shall be in writing and shall be
delivered as set forth below (unless written notice is otherwise provided to
the Trustee).
If to the Depositor, to:
Elmwood Funding Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to the Directors:
c/o Deutsche Xxxxxx
Xxxxxxxx (Cayman) Limited
X.X. Xxx 0000
Xxxxxx Xxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxx Indies
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
- 5 -
If to the Trustee, to:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust Certificates
Elmwood Funding Limited
Referencing: The designation of the applicable Series of
Certificates
Attention: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Standard & Poor's
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE
-------------
TRANSACTIONS DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF
LAWS PROVISIONS THEREOF.
Section 11. Counterparts. This Series Supplement may be
------------
executed in any number of counterparts, each of which shall be deemed to be an
original, and all such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of
the date first written above.
ELMWOOD FUNDING LIMITED,
as Depositor
- 6 -
By:_____________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK,
as Trustee
By:_____________________________
Name:
Title:
SCHEDULE I
SERIES 199[__]-[SERIES DESIGNATION]
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: [__.__]% Debentures due [DATE], subject to
the Retained Interest and the Call Warrant
Underlying Securities Issuer: [_____________]
CUSIP Number: [__________]
Principal Amount Deposited: $[Amount]
Original Issue Date: [DATE]
Principal Amount of
Underlying Securities
Originally Issued: $[Amount]
Maturity Date: [DATE]
Principal Payment Date: [DATE]
Interest Rate: [__.__]% per annum
Interest Payment Dates: [Date] and [Date], commencing [Date]
Initial Accrued Interest: $[Amount]
Redemption Dates: None
Redemption Prices: None
Priority: Based upon the Prospectus relating to the
Underlying Securities, the Underlying
Securities rank on a parity with all other
unsecured and unsubordinated indebtedness
of the Underlying Securities Issuer
Security: None
Rating as of Closing: "[___]" by Moody's and "[___]" by S&P.
Form of
Underlying Securities: Book-entry debt security with DTC
Retained Interest: As described on Schedule II hereto
SCHEDULE II
SERIES 199[__]-[SERIES DESIGNATION]
DESCRIPTION OF THE RETAINED INTEREST
The holder of the Retained Interest will retain the right with
respect to the Underlying Securities to receive (i) on the [First Month]
Distribution Date occurring in 1996, the Initial Accrued Interest, and (ii) on
each Distribution Date, from payments received on the Underlying Securities, a
distribution equal to [__.__]% per annum of the principal amount of the
Underlying Securities (the "INTEREST STRIP"). The rights of the holder of
the Retained Interest to the Interest Strip are of equal priority with the
rights of the Certificateholders to receive distributions of interest.
The Retained Interest will be issued to [__________] and may be
transferred by [__________] to another party at the sole option of [__________]
without the consent of the Certificateholders or any other party but upon
written notice to the Trustee. The beneficial ownership interest in the
Retained Interest will be recorded on the records of the Trustee. On each
Distribution Date, payments will be made on the Retained Interest by wire
transfer to the account of the holder thereof on the related Record Date as
specified in written instructions to the Trustee. The Trustee shall not agree
to any amendment or modification of the Standard Terms or the Series Supplement
which would adversely affect in any material respect the holder of the Retained
Interest without the consent of the holder of the Retained Interest.
EXHIBIT A
Standard Terms for Trust Agreements
(begins on next page)
EXHIBIT B
Form of Certificate
No. ___ $[Amount]
CUSIP NO. _________
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE
TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
ELMWOOD FUNDING LIMITED
[NAME OF] CERTIFICATES
SERIES 199[__]-[SERIES DESIGNATION]
$[AMOUNT] PRINCIPAL BALANCE
[__.__]% PASS-THROUGH RATE
evidencing a fractional undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $[Amount]
aggregate principal amount of [__.__]% Debentures due [DATE] of [__________]
(the "UNDERLYING SECURITY ISSUER") and all payments received thereon (the
"TRUST PROPERTY"), deposited in trust by [Elmwood Funding Limited] (the
"DEPOSITOR").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of $[Amount] DOLLARS
nonassessable, fully-paid, fractional undivided interest in the [Name of]
Certificates Trust, Series 199[__]-[SERIES DESIGNATION], formed by the
Depositor.
The Trust was created pursuant to a Standard Terms for Trust
Agreements, dated as of February [__], 1997 (the "STANDARD TERMS"), between
the Depositor and [Name of Trustee], a New York banking corporation, not in its
individual capacity but solely as Trustee (the "TRUSTEE"), as supplemented
by the Series Supplement, Series 199[__]-[SERIES DESIGNATION], dated as of
[Month __, 199_] (the "SERIES SUPPLEMENT" and, together with the Standard
Terms, the "TRUST AGREEMENT"), between the Depositor and the Trustee. This
Certificate does not purport to summarize the
- 2 -
Trust Agreement and reference is hereby made to the Trust Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee with respect hereto. A copy of the Trust Agreement may be obtained
from the Trustee by written request sent to the Corporate Trust Office.
Capitalized terms used but not defined herein have the meanings assigned to
them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as the "[Name of] Certificates, Series 199[__]-[SERIES DESIGNATION]"
(herein called the "CERTIFICATES"). This Certificate is issued under and
is subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. The Trust
Property consists of: (i) Underlying Securities described in the Trust
Agreement; (ii) all payments on or collections in respect of the Underlying
Securities accrued on or after [Month __, 199_] (the "CLOSING DATE")
together with any proceeds thereof, subject to the Retained Interest; and (iii)
all funds from time to time deposited with the Trustee relating to the
Certificates and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, distributions will be made on each Distribution Date, to the Person
in whose name this Certificate is registered on the applicable Record Date, in
an amount equal to such Certificateholder's fractional undivided interest in
the amount required to be distributed to the Holders of the Certificates on
such Distribution Date. The Record Date applicable to any Distribution Date is
the close of business on the day immediately preceding such Distribution Date
(whether or not a Business Day). If a payment with respect to the Underlying
Securities is made to the Trustee after the date on which such payment was due,
then the Trustee will distribute any such amounts received on the next
occurring Business Day (a "SPECIAL DISTRIBUTION DATE").
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Trust, or join in any institution against the Trust of, any
bankruptcy proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates or
the Trust Agreement.
Distributions made on this Certificate will be made as provided in
the Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee shall be Cede & Co.),
- 3 -
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the Delivery Office or such other location as may be specified in such
notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee, by manual signature, this Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
[NAME OF] CERTIFICATES
TRUST, SERIES 199[__]-[SERIES
DESIGNATION],
By: [NAME OF TRUSTEE] not in its
individual capacity but solely as
Trustee,
By:___________________________
Authorized Officer
Dated: [Month __, 199_]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Name of] Certificates, Series 199[__]-[SERIES
DESIGNATION], described in the Trust Agreement referred to herein.
[NAME OF TRUSTEE],
not in its individual
capacity but solely as
Trustee,
Date: By:___________________________
Authorized Officer
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to the
[Trust Property] (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the Holders of Certificates evidencing greater
than 66-2/3% of the aggregate Voting Rights of the Certificates subject to
certain provisions set forth in the Trust Agreement. Any such consent by the
Holder of this Certificate (or any predecessor Certificate) shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
The Certificates are issuable in fully registered form only in
minimum original principal amounts of $1,000 and integral multiples of $1,000
in excess thereof.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, The City of New York, duly endorsed
by or accompanied by an assignment in the form below and by such other
documents as required by the Trust Agreement, and thereupon one or more new
Certificates of the same class in authorized denominations evidencing the same
principal amount will be issued to the designated transferee or transferees.
The initial Certificate Registrar appointed under the Trust Agreement is [Name
of Trustee].
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
- 2 -
It is the intention of the parties to the Trust Agreement that the
Trust created thereunder shall constitute a fixed investment trust for federal
income tax purposes under Treasury Regulation Section 301.7701-4, and the
Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust may not engage in any business or activities other than
in connection with, or relating to, the holding, protecting and preserving of
the Trust Property and the issuance of the Certificates, and other than those
required or authorized by the Trust Agreement or incidental and necessary to
accomplish such activities. The Trust may not issue or sell any certificates
or other obligations other than the Certificates or otherwise incur, assume or
guarantee any indebtedness for money borrowed.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall terminate
upon the earliest to occur of (i) the distribution in full of all amounts due
to Certificateholders and retirement of the Underlying Securities, (ii) the
distribution in full of all amounts due to Certificateholders on any Redemption
Date, and (iii) the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), including an individual
retirement account or Xxxxx plan (any such plan or account, a "PLAN") may
purchase Certificates if either (i) the Underwriter is able to confirm the
existence of at least 100 independent purchasers or (ii) the Plan can represent
that its purchase of the Certificates would not be prohibited under ERISA or
the Code.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
____________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
____________________________________________________________
the within Certificate, and all rights thereunder,
hereby irrevocably constituting and appointing
____________________________________________________________
Attorney to transfer said Certificate on the books of the Certificate Register,
with full power of substitution in the premises.
Dated:
_______________________*
Signature Guaranteed:
_______________________*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
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).
EXHIBIT C
Form of Market Agent Agreement
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