EXHIBIT 99.1
GUARANTEED TRADE TRUSTS
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MASTER TERMS OF TRUST
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between
CITIBANK, N.A.,
as Trustee
and
CITICORP NORTH AMERICA, INC.,
as Depositor
Dated as of November 26, 1997
MASTER TERMS OF TRUST
GUARANTEED TRADE TRUSTS
MASTER TERMS OF TRUST dated as of November 26, 1997, between
Citibank, N.A., a national banking associa tion, as trustee (the
"Trustee"), and Citicorp North America, Inc., a Delaware corporation (the
"Depositor").
ARTICLE II
Definitions
Section 2.2 Definitions. As used in the Declaration of Trust
of which these Master Terms of Trust are a part, the following terms
shall, unless otherwise provided in the Supplement constituting a part of
the Declaration, have the following meanings:
"Advance" shall have the meaning assigned to such term in the
Liquidity Agreement, if any.
"Advance Rate" shall mean the rate of interest borne by
outstanding Advances made by the Liquidity Provider as set forth in any
applicable Liquidity Agree ment.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under
direct or indirect common control with, such specified Person. For the
purposes of this definition, "control," when used with respect to any
specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Assignment" shall mean the Assignment deliv ered by the
Trustee, on behalf of the Trust, to Eximbank as provided in Section 5.5,
in substantially the form attached to the Guarantee Agreement.
"Available Funds" shall have the meaning as signed in Section
5.3(a).
"Beneficiary" shall have the meaning assigned in Section
8.11.
"Book-Entry Certificates" shall mean Certificates in
book-entry form evidenced by a global Certificate registered in the name
of a nominee of DTC or a successor Depository.
"Borrower" shall have the meaning specified in the
Supplement.
"Borrower Payment Demand" shall mean any written demand,
delivered by the Trustee as provided herein, executed by a Responsible
Officer of the Trustee and ad dressed to the Borrower, for payment of
amounts due and unpaid under the Promissory Notes, in the form of Exhibit
B-1 to the Supplement.
"Borrower Payment Demand Date" shall mean the second Business
Day following each Note Payment Date.
"Business Day" shall mean any day except one on which the
Federal Reserve Bank of New York and banks in New York City are closed.
"Certificate" shall have the meaning specified in the
Supplement.
"Certificate Interest Rate" shall have the meaning specified
in the Supplement.
"Certificate Payment Date" shall have the meaning specified
in the Supplement.
"Certificate Register" shall mean the certificate register
maintained pursuant to Section 6.2.
"Certificate Registrar" shall have the meaning assigned in
Section 6.2.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered on the Certificate Register, except that,
solely for the purposes of giving any consent, waiver, request or demand
pursuant to the Declaration, any Certificate owned by the Borrower or any
of its Affiliates shall be deemed not to be outstanding and shall not be
taken into account in determining wheth er the requisite aggregate
Principal Amount necessary to effect any such consent, waiver, request or
demand has been obtained. In determining whether the Trustee shall be
protected in relying upon any consent, waiver, request or demand of
Certificateholders, only Certificates that are registered in the name of
the Borrower or any of its Affiliates or which a Responsible Officer of
the Trustee actually knows are so owned shall be deemed not outstand ing.
"Closing Date" shall have the meaning specified in the
Supplement.
"Code" shall mean the Internal Revenue Code of 1986, as in
effect from time to time.
"Credit Agreement" shall have the meaning specified in the
Supplement.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall have the meaning specified in the
Supplement.
"Definitive Certificate" shall mean a Certificate in
definitive form.
"Depository" shall mean DTC (as hereinafter defined) or any
successor securities depository for the Book-Entry Certificates.
"DTC" means The Depository Trust Company, a limited-purpose
trust company organized under the laws of the State of New York, as
Depository.
"DTC Letter" means the letter of representations executed by
the Trustee and the Depositor, on behalf of the Trust, and acknowledged
by DTC in the form prescribed by DTC.
"Eligible Investments" shall mean non-callable non-prepayable
bonds, notes, bills or similar obligations (i) issued or guaranteed by
the United States of America or an agency or instrumentality thereof or a
corporation sponsored thereby (including, without limitation, the Federal
Home Loan Banks, the Federal National Mortgage Association and the
Federal Home Loan Mortgage Corporation); (ii) that are either (a) backed
by the full faith and credit of the United States of America, (b) rated
in the highest long-term debt rating category of each of the Rating
Agencies, or (c) rated in the highest short-term debt rating category of
each of the Rating Agencies; (iii) purchased from the issuer thereof as
principal; and (iv) that mature on or prior to the Business Day immediately
preceding the next succeeding Certificate Payment Date.
"Event of Default" shall have the meaning assigned in the
Credit Agreement.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Eximbank" shall mean the Export-Import Bank of the United
States, or any successor thereto.
"Eximbank Payment Account" shall mean the segregated,
non-interest-bearing trust account maintained by the Trustee in its trust
capacity in the name of the Trust at the Trustee's Principal Corporate
Trust Office for the benefit of the Certificateholders and the Liquidity
Provider, if any, in respect of any Advance made under the Liquidity
Agreement, in accordance with Section 3.6(a)(ii).
"Eximbank Payment Certificate" shall mean the certificate, in
substantially the form of Annex D to the Guarantee Agreement, issued by
Eximbank to the Trust in accordance with the Guarantee Agreement upon the
occur rence of the Eximbank Payment Event, pursuant to which Eximbank
agrees to make timely payments to the Trust of the Guaranteed Amounts due
on the Promissory Notes, on each Note Payment Date, until the scheduled
maturity thereof.
"Eximbank Payment Demand" shall mean any written demand,
delivered by the Trustee as provided herein, executed by a Responsible
Officer of the Trustee and ad dressed to Eximbank, for payment of amounts
due and unpaid under the Guarantee, in the form of Exhibit B-2 to the
Supplement.
"Eximbank Payment Demand Date" shall mean, with respect to
any Note Payment Date upon which the Borrower fails to pay an installment
of principal of or interest on any of the Promissory Notes, the first
Business Day occurring on or after the later of (i) the fifteenth (15th)
calendar day following the date upon which the Trustee delivered a
Borrower Payment Demand to the Borrower and the Guarantor, if any, in
accordance with Sections 3.3(a)(ii) and 5.2(a)(i) and (ii) the
thirty-first (31st) calendar day following such Note Payment Date.
"Eximbank Payment Event" shall have the meaning set forth in
Section 5.5.
"Guaranteed Amounts" shall have the meaning specified in the
Guarantee Agreement.
"Guarantee" shall mean the obligation of Eximbank to make
payment on the Promissory Notes as evidenced by the guarantee legend
endorsed on each of the Promissory Notes by Eximbank.
"Guarantee Agreement" shall have the meaning specified in the
Supplement.
"Guarantor" shall have the meaning, if any, specified in the
Supplement.
"Information Request" shall mean an information request from
a beneficial owner of a Certificate in substantially the form of Exhibit
E to a Supplement.
"Initial Amount" shall mean (i) for the Promissory Notes,
the initial aggregate principal amount of the Promissory Notes, and (ii)
for any Certificate, the denomination thereof upon original issuance,
which shall be $1,000 or any integral multiple of $1 in excess there of.
"Interest" shall mean, for any Certificate, an amount payable
to the Certificateholder for a six-month Interest Period calculated by
multiplying the Principal Balance of such Certificate during such
Interest Period by the Certificate Interest Rate and dividing the result
by two. Interest on a Certificate for a period of less than six months
(without giving effect to any Certificate Payment Date adjustments) shall
be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Period" shall mean, for any Certifi cate, the
period from and including the most recent Certificate Payment Date (or,
with respect to the Initial Certificate Payment Date, from and including
the Closing Date) to but excluding the next succeeding Certificate
Payment Date.
"Interest Portion", on any Certificate Payment Date, shall
mean the remaining portion of the Available Funds which represents or is
attributable to payment of interest on the Promissory Notes after payment
of the Trustee Basic Fee, if any, pursuant to Sections 5.3 and 7.6.
"Investment Company Act" shall mean the Invest ment Company
Act of 1940, as amended.
"Investment Earnings" shall mean any amounts in the Trust
Account or Eximbank Payment Account, as the case may be, which represent
earnings on Eligible Investments.
"Investment Name" shall have the meaning specified in the
Supplement.
"Liquidity Agreement" shall have the meaning specified in the
Supplement.
"Liquidity Provider" shall have the meaning specified in the
Supplement.
"Master Terms of Trust" shall mean these Master Terms of
Trust.
"Note Interest Rate" shall mean, at any time, the then
applicable per annum interest rate borne by the Promissory Notes as
stated therein.
"Note Payment Date" shall have the meaning specified in the
Supplement.
"Notice of Drawing" shall have the meaning specified in the
Supplement.
"Opinion of Counsel" shall mean a written opinion of counsel
and complying with the requirements of Section 8.10.
"Paying Agent" shall have the meaning specified in Section
6.2(b).
"Payment Deficiency" shall mean, with respect to payments on
the Promissory Notes in respect of a Note Payment Date, the existence of
a positive amount when subtracting (x) all amounts paid by the Borrower
in respect of the Promissory Notes on such Note Payment Date from (y) all
amounts due on the Promissory Notes on such Note Payment Date.
"Payment Demand" shall mean a Borrower Payment Demand, an
Eximbank Payment Demand or a Preference Pay ment Demand.
"Percentage Interest" shall mean, with respect to any
Certificate, the percentage determined by dividing the Initial Amount of
such Certificate by the aggregate Initial Amounts of all Certificates and
multiplying such result by 100. The Percentage Interest of any Certificate
shall be rounded, if necessary, to the nearest one-hundred
thousandth of one percent.
"Person" shall mean any legal person, including any
individual, corporation, partnership, joint venture, association, joint
stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof.
"Place of Payment" shall mean the place or places designated
pursuant to Section 6.2(b) where the final distribution in respect of
each Certificate will be made upon presentation and surrender thereof.
"Preference Payment Demand" shall mean any written demand,
delivered by the Trustee as provided herein, executed by a Responsible
Officer of the Trustee and addressed to Eximbank, for payment of amounts
paid under the Promissory Notes, but rescinded or compelled to be
returned, in the form of Exhibit B-3 to the Supplement.
"Principal" shall mean, when used in reference to a
distribution made in respect of a Certificate on any Certificate Payment
Date, an amount calculated by multi plying the aggregate amount of
principal due and payable on the Promissory Notes on the Note Payment
Date immedi ately preceding such Certificate Payment Date by the
Percentage Interest represented by such Certificate.
"Principal Amount" shall mean, for any date with respect to
any Certificate, the Principal Balance thereof on such date.
"Principal Balance" shall mean, for any date, with respect to
the Promissory Notes, the Initial Amount of the Promissory Notes reduced
by all payments of principal on the Promissory Notes and, with respect
to any Certificate, the Initial Amount of such Certificate less all
distributions of Principal to the Certificateholder made prior to that
date.
"Principal Corporate Trust Office" shall mean the principal
office of the Trustee at which the Trustee administers its trust
activities, which office at the date of the making of the Declaration is
located at the address set forth in Section 8.4.
"Promissory Notes" shall have the meaning specified in the
Supplement.
"Rating Agencies" shall have the meaning speci fied in the
Supplement.
"Record Date" shall have the meaning specified in the
Supplement.
"Required Trustee Ratings" shall have the
meaning specified in the Supplement.
"Responsible Officer" shall mean, with respect to the
Trustee, any officer within the Principal Corporate Trust Office (or any
successor group) of the Trustee including any Vice President, any
Assistant Vice President, any Senior Trust Officer, any Trust Officer
and also means with respect to a particular matter, any other officer in
the Principal Corporate Trust Office to whom such matter is referred
because of such officer's knowl edge of, and familiarity with, the
particular matter.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Semi-annual Report" shall have the meaning assigned in
Section 4.1.
"Special Payment Amount" shall have the meaning assigned in
Section 3.7.
"Special Payment Date" shall have the meaning assigned in
Section 5.3(d).
"Special Record Date" shall have the meaning assigned in
Section 5.3(d).
"Special Trustee Payment Date" shall have the meaning
assigned in Section 3.7.
"Subsequent Amounts" shall have the meaning specified in
Section 5.3(b).
"Supplement" shall mean the supplement executed by the
Trustee and the Depositor, which supplement establishes a Trust and
incorporates these Master Terms of Trust.
"Trust" shall have the meaning specified in the Supplement.
"Trust Account" shall mean the segregated,
non-interest-bearing trust account maintained by the Trustee in its trust
capacity in the name of the Trust at the Trustee's Principal Corporate
Trust Office for the benefit of the Certificateholders and the Liquidity
Provider, if any, in respect of any Advance made under the Liquidity
Agreement, in accordance with Section 3.6(a)(i).
"Trust Property" shall mean the Promissory Notes and any
Eximbank Payment Certificate, all monies due or to become due with
respect to the Promissory Notes or the Eximbank Payment Certificates, all
amounts payable with respect to, and all rights under, the Guarantee and
the Guarantee Agreement and all monies due or to become due with respect
thereto.
"Trustee" shall mean Citibank, N.A., until any appointment of
a successor trustee pursuant to Section 7.8 or any succession described
in Section 7.10 and thereafter shall mean the trustee appointed pursuant
to Section 7.8 or the successor to the former trustee pursu ant to
Section 7.10, respectively.
"Trustee Basic Fee" shall have the meaning specified in the
Supplement.
"Trustee's Fees" shall mean the Trustee Basic Fee and the
Trustee Supplemental Fee.
"Trustee Supplemental Fee" shall mean (x) if no Liquidity
Agreement has been delivered, an amount payable to the Trustee on each
Certificate Payment Date equal to the remaining portion, after
distribution to Certificateholders of all amounts then due on the
Certificates, of the sum of (i) the amount of interest on any overdue
installment of principal or interest received by the Trustee from the
Borrower in accordance with the provisions of the Promissory Notes
accruing from such Note Payment Date to the date of payment thereof by
the Borrower and (ii) the amount of interest on any overdue installment
of principal or interest received by the Trustee from Eximbank pursuant
to the Guarantee accruing from such Note Payment Date to the related
Certificate Payment Date (it being agreed that until the Certificate
holders have been paid in full all amounts due on the Certificates on the
related Certificate Payment Date, all amounts of interest received from
the Borrower or Eximbank pursuant to clause (i) or (ii) of this
definition shall be for the benefit of and distributable to the
Certificateholders and it being further agreed that with respect to any
Certificate Payment Date with respect to which the Trustee has failed to
make on a timely basis any Payment Demand pursuant to Section 3.3 or
Section 5.2, the Trustee shall not be entitled to any Trustee
Supplemental Fee) and (y) if a Liquidity Agreement has been delivered,
$0.
"Trustee's Fees and Expenses" shall have the meaning assigned
in Section 7.6.
Certain additional capitalized terms shall have the meanings
assigned thereto in other provisions hereof. Any term defined both herein
and in the Supplement shall have the meaning specified in the Supplement.
All references herein to Articles or Sections shall be to the
Articles or Sections of these Master Terms unless such Article or Section
shall appear in the Supplement, in which event such reference shall be to
the Article or Section as it appears in the Supplement.
Section 1.2 Assumptions Regarding the Promis sory Notes. For
purposes of determining the Principal, Interest, Note Payment Dates,
Guaranteed Amounts, any amounts payable to the Certificateholders and the
Trustee and any other amounts calculated on the basis of the Promissory
Notes and the terms thereof, any such determination shall be made
without regard to any tender of the Promissory Notes to Eximbank pursuant
to Section 5.2(a)(ii), 5.2(b), 5.2(c) or 5.6 or any acceleration of the
Promissory Notes by Eximbank.
ARTICLE II
Delivery of the Promissory Notes
and the Other Trust Property
Section 2.1 Delivery of the Promissory Notes and the Other
Trust Property. On the Closing Date, but subject to satisfaction of the
conditions set forth in Section 2.2, the Depositor shall deliver the
Promissory Notes to the Trustee, and the Trustee, on behalf of the Trust,
shall take and hold the Promissory Notes in trust and the Trustee shall
on behalf of the Trust execute and deliver to the Depositor duly
authenticated Certificates in a principal amount equal in the aggregate
to the Initial Amount of the Promissory Notes and representing 100% of
the beneficial interest in the Trust. Such Certificates shall be in
authorized denominations. Except as expressly set forth in the
Declaration, the acquisition by the Trustee of the Promissory Notes, and
the declaration of the Trust under the Declaration, shall not constitute
and is not intended to result in an assumption by the Trustee, any
Certificateholder or any Liquidity Provider of any obligation of the
Borrower, Eximbank or any other Person in connection with the Promissory
Notes, the Credit Agreement, the Guarantee or the Guarantee Agreement, or
under any agreements or instruments relating to any of them.
Section 2.2 Conditions to Issuance of Certificates. (a) As a
condition to the issuance of the Certificates, the Trustee shall have
received, or shall receive simultaneously, with the issuance of the
Certificates, on the Closing Date, copies of all of the following legal
opinions, which opinions shall be addressed to the Trustee or delivered
to the Trustee with a letter stating that the Trustee shall be entitled
to rely on such accompanying opinions as if they were addressed to the
Trustee:
(i) the opinion of counsel for the Trustee, to the
effect set forth in an exhibit to the applicable Supplement;
(i1) the opinion of counsel to the Borrower, which
counsel shall be admitted to the practice of law in the country of
the Borrower, to the effect set forth in an exhibit to the
applicable Supplement;
(iii) the opinion of special U.S. counsel for the
Borrower, to the effect set forth in an exhibit to the applicable
Supple ment;
(iv) the opinion of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, special coun sel to the Trust, to the effect set forth in
an exhibit to the applicable Supplement;
(v) the opinion of the General Counsel of Eximbank, to
the effect set forth in an exhibit to the applicable Supplement;
and
(vi) if the applicable Supplemental requires that a
Liquidity Agreement be delivered, an opinion of counsel to the
Liquidity Provider to the effect set forth in the applicable
Supplement.
(b) As a further condition to the issu ance of the
Certificates, the following events shall have occurred prior to, or shall
occur simultaneously with, the issuance of the Certificates:
(i) delivery by the Depositor of the Promissory Notes,
with the Guarantee endorsed thereon, to the Trustee on behalf of
the Trust;
(ii) delivery by the Depositor of a fully executed copy
of the Guarantee Agreement and any amendments thereto to the
Trustee on behalf of the Trust;
(iii) delivery by the Depositor of a fully executed copy
of the Credit Agreement and any amendments thereto to the Trustee
on behalf of the Trust;
(iv) if the applicable Supplement requires that a
Liquidity Agreement be de livered, execution and delivery of such
Liquidity Agreement by the Liquidity Provider, the Borrower and
the Trustee, on behalf of the Trust; and
(v) letters from each of the Rating Agencies stating
that the Certificates have been rated in the highest rating
category of such Rating Agency.
(c) Subject to the satisfaction of the foregoing
conditions, the Trustee shall on the Closing Date deliver or cause to be
delivered to, or upon the written order of, the Depositor duly executed
and authen ticated Certificates in authorized denominations equal in the
aggregate to the Initial Amount of the Promissory Notes and representing
100% of the beneficial ownership interest in the Trust.
Section 2.3 Purposes of Trust. Notwithstanding anything to
the contrary contained herein, the Trust shall not engage in any activity
other than accepting the Promissory Notes and the other Trust Property in
accor dance with the Supplement, holding the Promissory Notes and the
other Trust Property or, in the event the Eximbank Payment Event occurs,
the Eximbank Payment Certificate (or any payments, proceeds or funds in
re spect of any thereof), issuing Certificates, agreeing to and accepting
the Liquidity Agreement, if any, performing its obligations under the
Declaration, the Guarantee Agreement and the Liquidity Agreement, if any,
and engaging in other activities related thereto and described or
contemplated herein or reasonably incident to any of the foregoing.
Section 2.4 No Transfer of the Promissory Notes and the Other
Trust Property by the Trustee. The Trustee shall not sell, assign, pledge
or otherwise transfer the Promissory Notes, the Credit Agreement, the
Guarantee, the Guarantee Agreement, the Eximbank Payment Certificate, if
any, the Liquidity Agreement, if any, or any interest of the Trust
therein, to any Person or Persons, except to Eximbank as provided in
Section 5.5 or to a successor trustee as provided in Section 7.8 or as
otherwise permitted in accordance with the Declaration, notwithstanding
any default under the Promissory Notes, the Guarantee or the Liquidity
Agreement, if any. This Section 2.4 shall not be construed to prohibit
transfers of the Certificates.
Section 2.5 Authority of Trustee. The Trustee is hereby
specifically authorized to do the following on behalf of the Trust: if so
provided in the applicable Supplement, to acknowledge and agree to the
Credit Agreement; if so provided in the applicable Sup plement, to
execute and deliver the Guarantee Agreement; to establish and maintain
the Trust Account and the Eximbank Payment Account hereunder; to accept
delivery of the Promissory Notes and the other Trust Property; if so
provided in the applicable Supplement, accept and agree to the Liquidity
Agreement, to execute and deliver cer tificates, documents and other
written instruments in connection with the creation of the Trust on the
Closing Date; to perform all other acts specifically provided for in the
Declaration. The Trustee is authorized to execute and deliver any
amendments to any of the documents rferred to or contemplated by the
preceding sentence; provided, however, the Trustee shall not agree to any
amendment of the Promissory Notes or the Credit Agreement, or consent to
any deviation from the respective provisions thereof, without the prior
written consent of Eximbank and the Liquidity Provider, if any; and
provided, further, after the initial issuance of the Certificates, the
Trustee shall not agree, without the prior written consent of the holders
of 100% of the Certificates, to any amendment of the Promissory Notes,
the Credit Agreement, the Guarantee or the Guarantee Agree ment if such
amendment would diminish, delay or adversely affect the distributions
which would otherwise be made to Certificateholders pursuant to the
Declaration (it being understood that, in determining whether any
proposed amendment would diminish, delay or adversely affect the
distributions which would otherwise be made to Certificateholders
pursuant to the Declaration that the Trustee may obtain and conclusively
rely upon an Opinion of Coun sel delivered (at the expense of the Person
requesting such amendment) pursuant to Section 7.2(c)) or, if such
amendment would, in and of itself, result in the reduc tion,
qualification or withdrawal of the rating then as signed to the
Certificates by either of the Rating Agen cies; and provided, further, no
such amendment, without the prior written consent of the holders of 100%
of the Certificates, as evidenced by an Opinion of Counsel (delivered at
the expense of the Person requesting such amendment), shall cause the
Trust to be treated other than as a grantor trust for federal income tax
purposes.
ARTICLE III
Additional Obligations of the Trustee
Section 3.1 General. From time to time hereafter, the
Trustee is hereby authorized to perform any acts which are described in
the Declaration as obligations of the Trustee, or which are necessary or
appropriate for the performance of such obligations, or which are
otherwise contemplated herein as acts required of the Trustee.
Section 3.2 Subsequent to the Closing Date. Following the
issuance of the Certificates, the Trustee will, in addition to any other
obligations or agreements of the Trustee contained in the Declaration, do
the following:
(i) prepare and file on behalf of the Depositor with
the Commission any information, documents or reports, if any,
required by the Exchange Act relating to the Trust and the
Depositor hereby appoints the Trustee as its attorney-in-fact for
the purpose of making such filings with respect to the Trust;
provid ed, however, that the Depositor shall file or cause to be
filed with the Commission a Current Report on Form 8-K in
connection with the initial issuance of the Certificates;
(ii) at the Depositor's written request, provide to the
Depositor any information, documents or reports as are in the
possession of the Trustee and are required by the Depositor for any
filing required to be made by the Depositor with the Commission or
applicable state authorities by the Securities Act, the Exchange
Act, the Investment Company Act, or any state Blue Sky laws,
relating to the Trust, the Credit Agreement, the Promissory Notes,
the Guarantee, the Guarantee Agreement, the Certificates, the
Liquidity Agreement, if any, or the Percentage Interests
represented by the Certif icates;
(iii) provide to Eximbank any information reasonably
requested by it in the possession of the Trustee concerning the
Trust, the Promissory Notes, the Credit Agreement, the Guarantee,
the Guarantee Agreement, the Eximbank Payment Certificate, the
Certificates, the Certificateholders or the compliance by the
Trustee with its obligations hereunder or under any of the other
documents referred to herein;
(iv) to the extent made available to the Trustee, make
generally available to the Certificateholders and to the
Representatives (as defined in the Underwriting Agreement) an
earning statement or statements of the Trust that satisfies the
provisions of Section 11(a) of the Securities Act of 1933, as amend
ed, and Rule 158 promulgated thereunder;
(v) comply with all obligations of a "Noteholder"
contained in the Credit Agreement and the Guarantee Agreement; and
(vi) provide to the Depositor copies of filings made by
the Trustee pursuant to clause (i) of this Section 3.2 and any
correspondence with the Commission with respect thereto.
The Depositor shall provide to the Trustee a copy of the
no-action request made to the Commission on June 21, 1995 seeking relief
for the Trusts from certain reporting requirements under the Exchange Act
and a copy of the response of the Commission dated June 23, 1995 granting
such no-action relief. Notwithstanding any other provision of this
Agreement, the Trustee has not assumed, and shall not by its performance
hereunder be deemed to have assumed, any of the duties or obligations of
the Depositor or any other Person with respect to (a) the registration of
the Certificates pursuant to the Securities Act or any state Blue Sky
laws, (b) the sale of or the direction to issue the Certificates, or (c)
the compliance with the Securities Act, the Investment Company Act or
any applicable state or federal securities or other laws (other than the
Exchange Act) including with out limitation any requirement to update the
registration statement or prospectus relating to the Certificates in
order to render the same not materially misleading to investors.
Section 3.3 Notices by the Trustee to the Borrower, the
Guarantor, the Liquidity Provider and Eximbank. (a) The Trustee shall,
prior to the Eximbank Payment Event, if on any Note Payment Date a
Payment Deficiency exists:
(i) if a Liquidity Agreement has been delivered with
respect to the related Trust and unless payment in full of all
amounts then due and payable on the Promissory Notes has been
received by the Trustee prior to such time, no later than 10:30
a.m., New York City time, on such Note Payment Date, the Trustee
shall deliver to the Liquidity Provider, if any (with copies to the
Borrower and the Guarantor, if any), by telegram, telex, facsimile
transmission or hand delivery a Notice of Drawing executed by a
Responsible Officer of the Trustee and setting forth the amounts
that were due and payable by the Borrower on such Note Pay ment
Date and the amounts which the Borrower and the Guarantor, if any,
failed to pay as of such Note Payment Date and otherwise complying
with the requirements for such Notice of Drawing set forth in the
Liquidity Agreement;
(ii) unless, prior to the second Business Day following
such Note Payment Date, payment in full of all amounts due on the
Promissory Notes (other than pursuant to an Advance) has been
received by the Trustee , the Trustee shall deliver a Borrower
Payment Demand, duly executed by a Responsible Officer of the
Trustee and dated the Borrower Payment Demand Date, by telegram,
telex, facsimile transmission, air courier or hand delivery to the
Borrower, not later than 9:30 a.m., New York City time, on such
second Business Day following such Note Payment Date with a copy to
the Guarantor, if any, the Liquidity Provider, if any, and
Eximbank, setting forth the amounts that were due and payable by
the Borrower on such Note Payment Date and the amounts which the
Borrower has as of such date failed to pay;
(iii) unless, at or prior to 9:30 a.m., New York City
time, on the Eximbank Pay ment Demand Date, payment in full of all
amounts due on the Promissory Notes (other than pursuant to an
Advance) has been received by the Trustee, the Trustee shall file
with and deliver to Eximbank an Eximbank Payment Demand, duly
executed by a Responsible Officer of the Trustee and dated the
Eximbank Payment Demand Date, by hand delivery not later than 5:00
p.m., New York City time, on such Eximbank Payment Demand Date (or,
if an Liquidity Agree ment has been delivered, by air courier or
hand delivery, not later than 12:00 noon, New York City time, on
the Business Day following such Eximbank Payment Demand Date with a
copy to the Liquidity Provider), setting forth the amounts that
were due and payable by the Borrower on such Note Payment Date and
the amounts which the Borrower failed to pay as of such date;
(iv) in the event the Trustee receives a payment from
the Borrower on the Promissory Notes (other than pursuant to an
Advance) at any time after the delivery of an Eximbank Payment
Demand with respect to such payment pursuant to Section 3.3(a)(ii),
the Trustee shall promptly deliver a notice, exe cuted by a
Responsible Officer of the Trustee, by telegram, telex, facsimile
transmission (confirmed by telephone) or hand delivery to Eximbank,
with a copy to the Guarantor, if any, and the Liquidity Provider,
if any, stating that the Borrower made a payment on the Promissory
Notes in respect of the immediately pre ceding Note Payment Date
and setting forth the date such payment was made and the amount of
such payment.
(b) The Trustee shall, at or prior to 9:30 a.m., New
York City time, on the second Business Day following the day on which the
Trustee receives notice that any payment with respect to the Promissory
Notes, or any part thereof, received by the Trustee, the Trust, any
Certificateholder or the Liquidity Provider, if any, is rescinded or is
compelled to be returned by law as the result of the bankruptcy or
insolvency of the Borrower or is rescinded or compelled to be returned as
a result of any law, regulation or decree applicable to the Borrower,
file with and deliver to Eximbank a Preference Payment Demand duly
executed by a Responsible Officer of the Trustee and dated the date of
such delivery, by hand delivery, setting forth the amounts of such
payment that were rescinded or compelled to be returned.
(c) If a Notice of Drawing is delivered to the
Liquidity Provider by the Trustee pursuant to Section 3.3(a)(i), a copy
thereof shall be promptly delivered by the Trustee to the Borrower and
the Guarantor, if any. If any Eximbank Payment Demand or Preference
Payment Demand is delivered to Eximbank by the Trustee pursuant to
Section 3.3(a)(iii) or 3.3(b), a copy thereof shall be promptly delivered
by the Trustee to the Borrower, the Guarantor, if any, and the Liquidity
Pro vider, if any.
(d) The Trustee shall promptly notify the
Certificateholders, the Liquidity Provider, if any, the Borrower and the
Guarantor, if any, in the event that Eximbank does not pay any amounts
due under the Guarantee in accordance with the terms thereof and, if any
failure in the payment of principal or interest in respect of the
Certificates occurs and is continuing, the Trustee shall mail to the
Certificateholders, the Borrower and the Guarantor, if any, a notice
thereof prior to the close of business on the second Business Day
following such failure.
(e) The Trustee shall promptly notify the
Certificateholders, the Borrower and the Guarantor, if any, in the event
that the Liquidity Provider, if any, does not pay any amounts due under
the Liquidity Agree ment in accordance with the terms thereof.
Section 3.4 Facilitation of Borrower Payments. The Trustee
shall provide the Borrower with any information in its possession
reasonably requested by the Borrower to facilitate payment by the
Borrower of the Prom issory Notes.
Section 3.5 Enforcement of Guarantee, the Eximbank Payment
Certificate and Liquidity Agreement. The Trustee will, at its own
expense, take all necessary steps to state a claim under the Guarantee,
the Eximbank Payment Certificate and Liquidity Agreement, if any, and
will, at the expense of the Certificateholders, take such other actions
as shall be necessary to enforce the Guar xxxxx, the Eximbank Payment
Certificate and the Liquidity Agreement, if any, in accordance with their
respective terms. The Trustee will provide (i) Eximbank with any
information in its possession requested by Eximbank to facilitate payment
by Eximbank pursuant to the Guarantee or the Eximbank Payment Certificate
and (ii) the Liquidi ty Provider, if any, with any information in its
posses sion requested by the Liquidity Provider to facilitate payment by
the Liquidity Provider pursuant to the Liquid ity Agreement.
Section 3.6 Maintenance of the Trust Account and the
Eximbank Payment Account. (a) (i) The Trustee shall establish and
maintain a trust account (the "Trust Account") as a segregated,
non-interest-bearing trust account in its trust capacity for the benefit
of the Certificateholders and the Liquidity Provider, if any, which Trust
Account shall become part of the corpus of the Trust. The Trustee shall
immediately deposit in the Trust Account all payments it receives with
respect to the Promissory Notes, but excluding amounts received with
respect to the Guarantee or the Eximbank Payment Certificate.
(ii) The Trustee shall establish and maintain a trust
account (the "Eximbank Payment Account") as a segregated,
non-interest-bearing trust account in its trust capacity for the benefit
of the Certificate holders and the Liquidity Provider, if any, which
Eximbank Payment Account shall become part of the corpus of the Trust.
The Trustee shall immediately deposit in the Eximbank Payment Account all
amounts it receives from Eximbank with respect to the Guarantee or the
Eximbank Payment Certificate.
(b) (i) Unless a Liquidity Agreement has been
delivered, the Trustee shall invest the amounts re ceived from payments
on the Promissory Notes in respect of a Note Payment Date and deposited
in the Trust Account in Eligible Investments that mature not later than
the Business Day immediately preceding the next succeeding Certificate
Payment Date. Any such amounts deposited in the Trust Account shall be
invested on the date received in Eligible Investments that bear interest
from and including such date, if received in immediately available funds
prior to 12:00 noon New York City time on such date, and any such amounts
received in immediately avail able funds at or after 12:00 noon New York
City time shall be so invested on the next succeeding Business Day. Any
returns of principal or earnings on investments of such amounts received
by the Trustee prior to the next succeeding Certificate Payment Date
shall, to the extent reasonably practicable, be reinvested by the Trustee
in accordance with the provisions of this paragraph. Any investments made
by the Trustee pursuant to this para graph shall be made through the
corporate trust depart ment of the Trustee, shall mature on the Business
Day immediately preceding the next succeeding Certificate Payment Date
or, if such a maturity date is not reason ably practicable, on the date
nearest to and preceding such Certificate Payment Date that is reasonably
practicable. The Trustee shall maintain possession of any Eligible
Investments which are evidenced by an instrument from the time of
purchase until maturity or redemption. Any Eligible Investments which are
not evidenced by an instrument shall be maintained in the Investment
Name. The Trustee shall not sell, assign or otherwise transfer any
Eligible Investment prior to the maturity thereof except to preserve the
value of the corpus of the Trust. The Trustee shall not have any
liability for losses incurred in connection with investments made in
accordance with the terms of this paragraph.
(ii) If a Liquidity Agreement has been delivered,
amounts held in the Trust Account shall not be invested by the Trustee
but shall be held in the Trust Account pending distribution pursuant
hereto.
(iii) Unless a Liquidity Agreement has been delivered,
following an Eximbank Payment Event, the Trustee shall invest all amounts
received from Eximbank with respect to the Guarantee or the Eximbank
Payment Certificate in respect of such Note Payment Date and deposited in
the Eximbank Payment Account in Eligible Investments that mature not
later than the Business Day immediately preceding the next succeeding
Certificate Payment Date. Any such amounts deposited in the Eximbank
Payment Account shall be invested on the date received in Eligible
Investments that bear interest from and includ ing such date, if received
in immediately available funds prior to 12:00 noon New York City time on
such date, and any such amounts received in immediately available funds
at or after 12:00 noon New York City time shall be so invested on the
next succeeding Business Day. Any re turns of principal or earnings on
investments of such amounts received by the Trustee prior to the next
succeeding Certificate Payment Date shall, to the extent reasonably
practicable, be reinvested by the Trustee in accordance with the
provisions of this paragraph. Any investments made by the Trustee
pursuant to this para graph shall be made through the corporate trust
depart ment of the Trustee, shall mature on the next succeeding
Certificate Payment Date or, if such a maturity date is not reasonably
practicable, on the date nearest to and preceding such Certificate
Payment Date that is reasonably practicable. The Trustee shall maintain
possession of any Eligible Investments which are evidenced by an
instrument from the time of purchase until maturity or redemption. Any
Eligible Investments which are not evidenced by an instrument shall be
maintained in the Investment Name. The Trustee shall not sell, assign or
otherwise transfer any Eligible Investment prior to the maturity thereof
except to preserve the value of the corpus of the Trust. In making
investments pursuant to this paragraph, the Trustee shall verify the
validity of the instruments purchased, the absence of liens thereon and
the conveyance of good title thereto. The Trustee shall not have any
liability for losses incurred in connection with investments made in
accordance with the terms of this paragraph.
(iv) If a Liquidity Agreement has been delivered,
following an Eximbank Payment Event, any amounts deposited in the
Eximbank Payment Account shall not be invested by the Trustee but shall
be held in the Eximbank Payment Account pending distribution to the
Certificateholders or the Liquidity Provider.
(c) Unless a Liquidity Agreement has been delivered, if
the funds in the Trust Account have been invested pursuant to Section
3.6(b)(i), at the time the Trustee distributes Available Funds in
accordance with Section 5.3(a), the Trustee will distribute to the Borrower
(at such account at such bank as the Borrower shall specify to the
Trustee in writing) any amounts in the Trust Account which represent
Investment Earnings, and all such Investment Earnings, as they are earned
and accumulated, subject to the following two sentences, shall be deemed
to be held in escrow by the Trustee for the benefit of the Borrower and
at no time shall such Investment Earnings be deemed to be held in trust
for the benefit of Certificateholders. No such Investment Earnings
amounts shall be distributed to the Borrower, if at the time of the
proposed distribution (i) a delinquency in payment under the Promissory
Notes or an Event of Default consisting of a payment default shall have
oc curred and be continuing or (ii) a delinquency in payment of the
Trustee Fees and Expenses shall have occurred and be continuing. Any
amounts so withheld from the Borrower shall be applied by the Trustee to
the payment of any overdue Trustee Fees and Expenses and the remainder,
if any, shall be retained by the Trustee in the Trust Ac count until (i)
such delinquency in payment under the Promissory Notes or Event of
Default consisting of a payment default shall have been cured or the
Certificates have matured and all amounts due on the Certificates have
been paid in full, in which event such amounts will be distributed to the
Borrower, or (ii) the Trustee is directed to distribute such funds by a
court of competent jurisdiction.
(d) Unless a Liquidity Agreement has been delivered, if
the funds in the Eximbank Payment Account have been invested pursuant to
Section 3.6(b)(iii), at all times after the occurrence of an Eximbank Payment
Event, at the time the Trustee distributes Available Funds in accordance with
Section 5.3(a), the Trustee will, to the extent of then due and unpaid
Trustee's Fees and Expenses, retain for its own account any amounts in the
Eximbank Payment Account which represent Investment Earnings and shall
distribute all amounts of such Invest ment Earnings remaining after such
retention by the Trustee to Eximbank at such account as Eximbank shall specify
to the Trustee in writing. All such Investment Earnings, as they are earned
and accumulated, shall be deemed to be held in escrow by the Trustee for
the benefit of Eximbank and the Trustee and at no time shall such
Investment Earnings be deemed to be held in trust for the benefit of
Certificateholders.
Unless a Liquidity Agreement has been delivered, the Trustee
hereby agrees that, even if on any date the amount of Investment Earnings
available to the Trust ee pursuant to this Section is insufficient to pay
the then due and payable Trustee's Fee and Expenses, the Trustee shall
have no claim against the Certificatehold ers or any other funds received
or held by the Trust for payment of its Trustee's Fee and Expenses.
However, the obligation of the Borrower pursuant to any agreement between
the Trustee and the Borrower providing for the payment of such due and
unpaid portion of the Trustee's Fee and Expenses shall remain outstanding
and in full force and effect at all times until such amounts are paid in
full.
Section 3.7 Trustee Obligation (a) Upon Failure to Deliver
Payment Demand. (a) Notwithstanding any other provision herein, if the
Trustee shall fail (x) to file with and deliver to Eximbank an Eximbank
Payment Demand and related documents as provided in Sections 3.3(a)(iii),
3.3(b), 5.2(a)(ii) and 5.5 by a date which is 150 days following the Note
Payment Date to which such Eximbank Payment Demand relates or (y) to
deliver to the Borrower and the Guarantor, if any, a Borrower Payment
Demand as provided in Sections 3.3(a)(ii) and 5.2(a)(i) by a date which
is 15 days prior to such 150th day, the Trustee, in its individual
capacity and not out of the assets of the Trust, shall pay to the Trust,
on the 151st day (or, if such 151st day is not a Business day, on the
next succeeding Business Day) (the "Special Trustee Payment Date"), an
amount equal to the sum of (i) the amount payable on the Promissory Notes
with respect to the related Note Payment Date, plus (ii) (x) if any
accrued interest on an Advance at the Advance Rate has not been paid to
the Liquidity Provider, such accrued interest at the Advance Rate from
and including such Note Payment Date to, but not including, the date of
payment by the Trustee pursuant to this Section 3.7(a) or (y) interest on
such Promissory Notes, from and excluding the related Certificate Payment
Date, through and including the date on which such funds are distributed
to Certifi cateholders, at the Certificate Interest Rate, less any
amounts paid on the Promissory Notes in respect of such Note Payment Date
prior to such Special Trustee Payment Date (other than pursuant to an
Advance). The Trustee shall deposit any Special Payment Amount which is
payable pursuant to this Section 3.7 in immediately available funds into
the Trust Account on the related Special Trustee Payment Date. Upon such
deposit, the Trustee shall establish a Special Record Date and a Special
Payment Date in accordance with Section 5.3(d). On such Special Payment
Date the Trustee shall distribute the Special Payment Amount to
Certificateholders as provided herein.
(b) The obligation of the Trustee to pay the Special
Payment Amount shall be absolute, unconditional and irrevocable and such
amount shall be payable on the related Special Trustee Payment Date
without the need for any notice or demand. Notwithstanding the foregoing,
if the Trustee shall fail to pay any required Special Payment Amount on
the related Special Trustee Payment Date, any Certificateholder or the
Liquidity Provider, if any, may give the Trustee notice of such failure,
and such amount shall be payable promptly upon receipt of such notice.
ARTICLE IV
Reports
Section 4.1 Reports to Certificateholders. (a) On or before
the tenth Business Day following each Certificate Payment Date, the
Trustee shall supply to each holder of Certificates (with a copy to the
Borrower) a semi-annual report in substantially the form attached as
Exhibit D to the related Supplement (a "Semi-Annual Report") which shall
include the following information, as of such Certificate Payment Date,
with respect to the distribution by the Trust:
(i) the aggregate amounts of Principal, if any, and
Interest distributed to the Certificateholders;
(ii) the aggregate Principal Balance of the
Certificates outstanding after such distribution; and
(iii) if the amounts referred to in (i) above are less
than the amounts of prin cipal and interest paid on the Promissory
Notes or the Eximbank Payment Certificate on the related Note
Payment Date (whether as a result of a withholding tax of the
country of the Borrower or through which payments were made which
has not been grossed-up or otherwise), the amount of any such
difference and the reason or reasons therefor (as determined on
the basis of information provided to the Trustee by the Borrower or
Eximbank or otherwise actually known by a Responsible Officer of
the Trustee); and
(iv) any additional information that the Trustee elects
to include in the SemiAnnual Report in order to satisfy
requirements, if any, under the Exchange Act, as then in effect,
with respect to the mailing of periodic reports to Certificateholders.
The Semi-Annual Report shall also state that neither a
delinquency in payment under the Promissory Notes, the Liquidity
Agreement, if any, the Guarantee or the Eximbank Payment Certificate nor
any Event of Default actually known to a Responsible Officer of the
Trustee has occurred and is continuing or, if such event has occurred and
is continuing, shall specify the event and its status and the amount, if
any, paid or payable under the Guarantee. A copy of each Semi-Annual
Report shall be sent by the Trustee to each of the Rating Agencies that
then maintains a rating for the Certificates.
(b) The fiscal year of the Trust shall be a calendar
year. Within the period of time specified in the Code or in the
regulations promulgated thereunder for federal income tax reporting
purposes after the end of each calendar year during the term of the
Declaration, the Trustee shall prepare and mail to each Certificate
holder a report setting forth the amounts distributed to such
Certificateholder and such other information as is reasonably necessary
for the preparation of such Certificateholder's federal income tax
returns for such calendar year or, in the event such person was a
Certificateholder for only a portion of such calendar year, for the
applicable portion of the year. The report required by this subsection
(b) may be combined with one of the Semi-Annual Reports sent by the
Trustee to Certificate holders each year pursuant to subsection (a)
of this Section.
(c) The Trustee will deliver, without charge, copies of
each related Semi-Annual Report to any beneficial owner of a Certificate
that delivers to it a completed Information Request at the address set
forth in Section 8.4.
Section 4.2 Tax Statements. The Trustee shall promptly
prepare and deliver to the appropriate tax authorities copies of any tax
filings for the Trust. The Borrower shall provide to the Trustee upon
request any information reasonably required by the Trustee in prepar ing
such tax filings, including, but not limited to, information with respect
to any taxes withheld by the country of the Borrower, or any country
through which payments were made, or any taxing authority or political
subdivision thereof.
Section 4.3 Annual Audits. For any year in which an Annual
Report on Form 10-K is required to be filed by the Trust with the
Commission, the Trustee shall, at the expense of the Borrower, obtain any
audit report of independent public accountants required to be filed with
such Annual Report.
Section 4.4 Notices to Rating Agencies. The Trustee will send
promptly to each of the Rating Agencies that then maintains a rating for
the Certificates, at the address set forth in Section 8.4, (a) a copy of
each notice or report provided by the Trustee to the Certifi cateholders
under this Article IV and (b) a report in the form of Exhibit F to the
related Supplement describing the occurrence of any of the following
events:
(i) any change in the identity of the Trustee or the
Liquidity Provider, if any;
(ii) any default by Eximbank in its obligation to make
payment pursuant to the Guarantee or any default by the Borrower of
its obligation to make payments pursuant to the Promissory Notes or
any default by the Liquidity Provider, if any, in its obligation to
make Advances pursuant to the Liquidity Agreement;
(iii) any amendment to the Declaration, the Promissory
Notes, the Credit Agree ment, the Guarantee, the Guarantee
Agreement or the Liquidity Agreement, if any; and
(iv) the giving of any direction by the
Certificateholders to the Trustee pursuant to Section 7.5(a) that
would alter the timing, method or effect of any claim or notice
required to be made by the Trustee pursuant to Section 3.3 or 5.2.
Section 4.5 Reports to the Borrower. If no Liquidity
Agreement has been delivered, on or before the tenth Business Day
following each Certificate Payment Date, the Trustee shall supply to the
Borrower and the Guarantor, if any, a written report in the form of Exhibit
G to the related Supplement including the following information, as of
the immediately preceding Certificate Payment Date:
(i) The amount(s) and date(s) of deposit by the Trustee
to the Trust Account of all payments received by the Trust from the
Borrower or the Guarantor, if any, or for the account of the
Borrower or the Guarantor, if any, during the period commencing on
the first calendar day following the Certificate Payment Date next
preceding such Certificate Payment Date and ending on such
Certificate Payment Date; and
(ii) The aggregate amounts of principal and interest
earned for all payments referred to in clause (i) above and
deposited in the Trust Account, and invested in Eligible
Investments during the period commencing on the first calendar day
following the Certificate Payment Date next preceding such
Certificate Payment Date and ending on such Certificate Payment
Date.
ARTICLE V
Payment and Collection
Section 5.1 Receipt of Payments. With respect to any Note
Payment Date, the Trustee shall:
(i) deposit in the Trust Ac count the amounts, if any,
received from or on behalf of the Borrower or the Guarantor, if
any, on the Promissory Notes, and, if no Li quidity Agreement has
been delivered, invest such amounts in Eligible Investments for the
benefit of the Borrower in accordance with Section 3.6(b)(i);
(ii) deposit in the Trust Ac count the amounts, if any,
received from the Liquidity Provider, if any, under the Liquidity
Agreement;
(iii) deposit in the Eximbank Payment Account the
amounts, if any, received from Eximbank on the Guarantee or the
Eximbank Payment Certificate;
(iv) deposit in the Eximbank Payment Account the
amounts, if any, received from the Trustee pursuant to Section 3.7;
and
(v) apply the amounts referred to in clauses (i), (ii),
(iii) and (iv) above on the next succeeding Certificate Payment
Date in the manner specified in Section 5.3.
Section 5.2 Occurrence of Payment Deficiency. (a) With
respect to any Note Payment Date prior to the Eximbank Payment Event upon
which there shall have occurred a Payment Deficiency:
(i) if a Liquidity Agreement has been delivered with
respect to the related Trust and if no Eximbank Payment Event shall
have occurred, no later than 10:30 a.m., New York City time, on the
Note Payment Date upon which there shall have occurred a Payment
Defi ciency, the Trustee shall deliver to the Li quidity Provider
(with copies to the Borrower and the Guarantor, if any) by
telegram, telex, facsimile transmission or hand delivery a Notice
of Drawing executed by a Responsible Offi cer of the Trustee and
setting forth the amounts that were due and payable by the Bor
rower and the Guarantor, if any, on such Note Payment Date and the
amounts which the Borrower and the Guarantor, if any, failed to pay
as of such Note Payment Date and otherwise complying with the
requirements for such Notice of Drawing set forth in the Liquidity
Agreement and to take such other actions as may be required to make
a claim on and to enforce payment from the Liquidity Provider under
the Liquidity Agreement;
(ii) no later than 9:30 a.m., New York City time, on
the second Business Day following such Note Payment Date upon which
there shall have occurred a Payment Deficiency, unless prior
thereto the Trustee shall have received payment in full of all
amounts due on the Promissory Notes (other than pursuant to an
Advance), the Trustee shall deliver to the Bor rower a Borrower
Payment Demand, with copies to the Guarantor, if any, the Liquidity
Provider, if any, and Eximbank, as set forth in Section 3.3(a)(ii);
(iii) unless on or before 9:30 a.m., New York City
time, on the Eximbank Pay ment Demand Date payment of all amounts
due on the Promissory Notes shall have been received in full (other
than pursuant to an Advance), the Trustee shall (A) no later than
5:00 p.m., New York City time on such Eximbank Payment Demand Date
(or, if a Liquidity Agreement has been delivered, 12:00 p.m., New
York City time, on the Business Day following such Eximbank Payment
Demand Date), file with and deliver to Eximbank (with copies to the
Liquidity Provid er, if any) an Eximbank Payment Demand as set
forth in Section 3.3(a)(iii) and (B) tender to Eximbank the
Promissory Notes, the Credit Agreement and the Assignment, as set
forth in Section 5.5; and
(iv) promptly upon receipt thereof, in the event the
Trustee receives a payment from the Borrower or Guarantor, if any,
on the Promissory Notes following the delivery of an Eximbank
Payment Demand with respect to such payment pursuant to Section
3.3(a)(iii), the Trustee shall send a written notice to Eximbank
(with a copy to the Liquidity Provid er, if any) in accordance with
Section 3.3(a)(iv).
(b) The Trustee shall, at or prior to 9:30 a.m., New
York City time, on the second Business Day following the day on which the
Trustee receives notice that any payment with respect to the Promissory
Notes, or any part thereof, received by the Trustee, the Trust, any
Certificateholder or the Liquidity Provider, if any, is rescinded or is
compelled to be returned by law as the result of the bankruptcy or
insolvency of the Borrower or the Guarantor, if any, or is rescinded or
compelled to be returned as a result of any law, regulation or decree
applicable to the Borrower or the Guarantor, if any, file with and
deliver to Eximbank a Preference Payment Demand duly executed by a
Responsible Officer of the Trustee and dated the date of such delivery,
by hand delivery, set ting forth the amounts of such payment that were
rescind ed or compelled to be returned, and accompanied by the Promissory
Notes and an Assignment, as set forth in Sections 3.3(b) and 5.5.
(c) In addition to the foregoing actions and subject to
Section 7.1(d), the Trustee shall have the right but not the obligation,
unless payment of all amounts due on the Promissory Notes or under the
Guaranty or the Eximbank Payment Certificate have been received in full
(other than pursuant to an Advance), to take all action permitted by the
Declaration or otherwise permit xxx by law to enforce any rights to any
payment due from Eximbank pursuant to the Guarantee or the Eximbank Payment
Certificate or from the Liquidity Provider, if any, under the
Liquidity Agreement, including, if necessary, any action specified in
Section 7.13; provided, however, the failure of the Trustee to take any
action to enforce any right under the Guarantee, the Eximbank Payment
Certificate or the Liquidity Agreement, if any, shall not constitute a
waiver of such right.
Section 5.3 Disposition of Proceeds of Payments. (a) On
each Certificate Payment Date, the Trust ee will apply or cause to be
applied all funds on deposit in the Trust Account or the Eximbank Payment
Account (collectively, and not including any Investment Earnings (which
shall be distributed in accordance with Section 3.6(c)), "Available
Funds"), in the following order of distribution:
(i) if a Liquidity Agreement has been delivered and
the Liquidity Provider shall have made an Advance under the
Liquidity Agreement, to the Liquidity Provider an amount equal to
all unpaid Advances, together with interest thereon at the
Guaranteed Interest Rate;
(ii) to the payment of the Trustee Basic Fee, if any,
due on such Certifi cate Payment Date;
(iii) to the payment of Interest on the Certificates
due on such Certificate Payment Date;
(iv) to the payment of Principal on the Certificates
due on such Certificate Payment Date;
(v) if a Liquidity Agreement has been delivered, to
Eximbank if there has previously been a payment by Eximbank under
the Guarantee unless Eximbank has notified the Trustee that the
Borrower has paid to Eximbank all amounts due to Eximbank;
(vi) if a Liquidity Agreement has been delivered and
the Liquidity Provider shall have made an Advance under the
Liquidity Agreement, to the Liquidity Provider an amount equal to
all interest on Advances remaining unpaid after giving effect to
the distributions pursuant to clause (i) above;
(vii) if no Liquidity Agreement has been delivered, to
the payment of the Trustee Supplemental Fee to the Trustee;
(viii) if no Liquidity Agreement has been delivered, to
Eximbank if there has previously been a payment by Eximbank under
the Guarantee unless Eximbank has notified the Trustee that the
Borrower has paid to Eximbank all amounts due to Eximbank; and
(ix) any remaining amount to the Certificateholders
which amount shall be treat ed as an additional payment of
interest;
provided, however, no Certificate shall have any priority over any other
Certificate in order of distribution of Principal or Interest.
(b) If a Liquidity Agreement has been delivered, after
a failure by the Borrower and Guarantor, if any, on any Note Payment Date
to pay in full the principal and interest due on the Promissory Notes,
amounts (other than Advances) subsequently received by the Trustee
(whether from Eximbank in respect of the Eximbank Guarantee or otherwise)
in respect of such defaulted payment (such amounts "Subsequent Amounts")
shall be distributed on the Business Day following re ceipt in the
following order of priority:
(i) if the Liquidity Provider shall have made an
Advance under the Liquidity Agreement, to the Liquidity Provider an
amount equal to all unpaid Advances, together with interest thereon
at the Guaranteed Interest Rate;
(ii) to the payment of the Trustee Basic Fee, if any,
due and unpaid on such date of distribution;
(iii) to the Certificateholders of record as of the date
of distribution (with out priority of any Certificate over any
other Certificate) under this Section 5.3(b) to the payment of
Interest on the Certificates due and unpaid on such date of
distribution;
(iv) to the Certificateholders of record as of the
date of distribution (with out priority of any Certificate over any
other Certificate) under this Section 5.3(b) to the payment of
Principal on the Certificates due and unpaid on such date of
distribution;
(v) to Eximbank if there has previously been a payment
by Eximbank under the Guarantee unless Eximbank has notified the
Trustee that the Borrower has paid to Eximbank all amounts due to
Eximbank;
(vi) to the Liquidity Provider an amount equal to all
interest on Advances remaining unpaid after giving effect to the
distributions pursuant to clause (i) above; and
(vii) to the Certificateholders of record as of the
date of distribution (with out priority of any Certificate over any
other Certificate) under this Section 5.3(b) any remaining portion
of such Subsequent Amount.
(c) All payments to holders of the Certificates shall
be made by the Trustee by check mailed to each such holder of record on
the relevant Record Date at the address appearing on the Certificate
Register, except that payments on Certificates having denominations of
$5,000,000 or more will be made by the Trustee by wire transfer at the
expense of the Borrower, if so instructed by the Certificateholder,
provided that the Trustee receives the necessary wire transfer
instructions from the Certificateholder no later than the close of
business at the Principal Corporate Trust Office on the second Business
Day next preceding the applicable Certificate Payment Date. Notwithstanding
the foregoing, the final payment on each Certificate shall be made only
against presentation and surrender of the Certificate at a Place
of Payment.
(d) If at any time (x) the Liquidity Provider shall
have received an amount equal to all unpaid Advances, together with
interest thereon at the Guaran xxxx Interest Rate and the Trustee shall
have received an amount equal to the entire due and unpaid Trustee Basis
Fee, if any, but (y) the Certificateholders shall not have received all
amounts due on the Certificates on the most recent Certificate Payment
Date and all prior Cer tificate Payment Dates, the Trustee shall, in
accordance with the following provisions of this subsection (d),
distribute to the Certificateholders, to the extent available, any
delinquent payments of principal on the Promissory Notes (and any amount
of interest earned thereon) and any delinquent payments of interest on
the Promissory Notes (and, to the extent permitted by law, any amounts of
interest earned thereon at the Note Inter est Rate), such distribution
not to exceed (i) the amount then overdue on the Certificates plus (ii)
an amount equal to the overdue Principal multiplied by the Note Interest
Rate (calculated on the basis of a 360-day year and actual days elapsed)
from and including the date due to but excluding the Special Payment Date
referred to below. If all amounts described in the foregoing sen tence
are paid in full to the Trustee and to the Certifi cateholders on a
Special Payment Date, then any addition al amounts held by the Trustee
shall be distributed in accordance with Section 5.3(a). When delinquent
payments of interest or principal on the Promissory Notes, or payments of
interest on any such payments, are received from the Borrower, the
Guarantor, Eximbank or the Liquid ity Provider by the Trustee, if the
Trustee is required to distribute such payments to Certificateholders
pursu ant to this subsection (d), the Trustee will establish a special
payment date (a "Special Payment Date") and a special record date (a
"Special Record Date"). The Special Payment Date will be the tenth
Business Day following such receipt of payment by the Trustee and the
Special Record Date will be the fifth Business Day pre ceding the Special
Payment Date. On the Business Day next following receipt by the Trustee
of the aforesaid payment by the Borrower, the Guarantor, Eximbank or the
Liquidity Provider, the Trustee will send a notice to all Certificateholders
informing them of the Special Payment Date, the Special Record Date and the
amount of the payments that will be made to the Certificateholders on the
Special Payment Date.
(e) The right of any Certificateholder to receive
distributions of payments on a Certificate pursu ant to the Declaration
when due or to direct the Trustee to bring suit for the enforcement of
any such payment on or after the date when due shall not be impaired or
affected without the consent of such Certificateholder.
(f) All distributions by the Trustee to holders of the
Certificates shall be made pro rata to each such holder on the basis of
the respective Percent age Interests of the Certificates held by such
holder.
Section 5.4 Extraneous Payments. (a) In the event that the
Trustee receives funds in respect of a Promissory Note payment which has
already been made and distributed in accordance with Section 5.3(a), the
Trust ee shall, subject to subsections (b) and (c) of this Sec tion 5.4
and any claims made by Eximbank pursuant to the Guarantee Agreement and
the Liquidity Provider, if any, pursuant to the Liquidity Agreement,
promptly return such funds to the source or sources from which received
and will not deposit such funds in the Trust Account.
(b) Subject to Section 5.4(c) and follow ing the
Eximbank Payment Event, in the event the Trustee receives funds from or
on behalf of the Borrower or the Guarantor in respect of a payment with
respect to the Promissory Notes, the Trustee shall promptly pay over such
funds to Eximbank and shall not deposit such funds in the Trust Account.
(c) Notwithstanding anything to the contrary contained in
subsections (a) and (b) above or any other provision hereof, if (i) a
Liquidity Agreement has been delivered with respect to the related Trust,
(ii) no amounts are at the time due and owing to the Certificateholders,
(iii) an Advance, together with interest thereon at the Advance Rate, has
not been repaid to the Liquidity Provider and (iv) the Trustee receives
funds from or on behalf of the Borrower, the Guarantor, if any, or
Eximbank in respect of the Promissory Notes or the Trustee makes a
payment pursuant to Section 3.7, the Trustee shall promptly pay over such
funds to the Li quidity Provider to the extent of such outstanding Ad
xxxxx and such interest thereon at the Advance Rate and shall not deposit
such funds in the Trust Account or the Eximbank Payment Account.
Section 5.5 Tender of Promissory Notes to Eximbank.
Simultaneously with the delivery to Eximbank of any Eximbank Payment
Demand by the Trustee pursuant to Sections 3.3(a)(iii), 3.3(b),
5.2(a)(iii) and 5.2(b) on the Eximbank Payment Demand Date in accordance
with the terms of the Guarantee Agreement, the Trustee shall tender to
Eximbank the Promissory Notes and the Assign ment, executed by the
Trustee, on behalf of the Trust, and dated the Eximbank Payment Demand
Date (such tender to Eximbank of an Eximbank Payment Demand together with
the Promissory Notes and the Assignment is referred to as the "Eximbank
Payment Event"), in exchange for the issu ance by Eximbank to the Trust
of the Eximbank Payment Certificate, which is required by the Guarantee
Agreement to be delivered by Eximbank to the Trustee for the bene fit of
the Certificateholders and the Liquidity Provider, if any, within five
Business Days thereof.
Section 5.6 Accelerated Promissory Notes. In the event that
the Promissory Notes are accelerated by Eximbank pursuant to the Credit
Agreement and the Trustee shall thereafter receive any payment of such
accelerated amount or portion thereof from or on behalf of the Borrower
(other than from Eximbank pursuant to the Guarantee or the Guarantee
Agreement), the Trustee shall no later than the Business Day following
such receipt (i) notify Eximbank, (ii) transmit all of such funds to
Eximbank in the form received and (iii) deliver to Eximbank the
Promissory Notes and an Assignment thereof.
ARTICLE VI
The Certificates
Section 6.1 The Certificates. The Certifi xxxxx shall be
issued in fully registered form, in the form or substantially the form of
Exhibit A to the Supplement. Each Certificate shall be denominated in an
Initial Amount of $1,000 or a multiple of $1 in excess thereof. The
Certificates shall be executed by the Trustee on behalf of the Trust by
manual or facsimile signature of a Responsible Officer. Each Certificate
shall be authenticated by the Trustee on behalf of the Trust by the
manual signature of a Responsible Officer. The Trustee shall deliver the
Certificates that are issued on original issuance to the Underwriters
upon the satisfaction of the conditions set forth in Section 2.2.
Certificates bearing the signatures of individuals who were the
authorized signatories of the Trustee at the time of execution of those
Certificates shall bind the Trust, notwithstanding that such individuals
or any of them have ceased to hold such offices or positions prior to the
delivery of such Certificates.
Section 6.2 Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall main tain, in the Borough of
Manhattan, The City and State of New York, and, at its discretion, at any
other location, an office or agency for the registration of Certificates
and of transfers and exchanges of Certificates in a Certificate Register
as herein provided. Any such office or agency is referred to in this
Agreement as the "Cer tificate Registrar"; provided, however, the Trustee
shall not be relieved of any of its duties under the Declara tion by
reason of such designation. The Trustee shall serve as Certificate
Registrar, unless it shall resign or be removed pursuant to Section 7.8.
The Trustee shall register the Certificates and shall effect transfers
and exchanges of the Certificates as provided in the Declaration. The
Trustee shall give prompt written notice to the Borrower and the
Certificateholders of any change in the location of the Certificate
Register or the appoint ment of any other Certificate Registrar.
(b) Unless it shall resign or be removed pursuant to Section
7.8, the Trustee shall maintain, in the Borough of Manhattan, The City
and State of New York, and, at its discretion, any other location, an
office or agency at which the Certificates may be presented or
surrendered for final distribution thereon. Each such location is herein
referred to as a "Place of Payment." Initially, the Trustee designates
its office at 000 Xxxx Xxxxxx - 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 for
such purpose. Any such office or agency may make any distri butions in
respect of the Certificates at the discretion of the Trustee, and when so
acting as a designee of the Trustee is referred to in the Declaration as
a "Paying Agent"; provided, however, the Trustee shall not be relieved of
any of its duties under the Declaration by reason of such designation.
(c) Subject to Section 6.3, upon surrender of any
Certificate for registration of transfer at such office, the Certificate
Registrar, if other than the Trustee, shall promptly notify the Trustee
to execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of authorized
denominations, of like tenor, like aggregate Initial Amount and like
aggregate Principal Balance, and dated the date of authentication by the
Trustee.
(d) At the option of a Certificateholder, Definitive
Certificates may be exchanged for other Cer tificates of authorized
denominations, and of like tenor, like aggregate Initial Amount and like
aggregate Principal Balance, upon surrender of the Definitive Certificates
to be exchanged at an office or agency maintained therefor.
Whenever any Definitive Certificates are so surrendered for exchange, the
Certificate Registrar, if other than the Trustee, shall promptly notify
the Trustee, which shall execute, authenticate and deliver the
Definitive Certificates which the Certificateholder making the exchange
is entitled to receive.
(e) Every Definitive Certificate present ed or
surrendered for transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to
the Trustee or the Certificate Registrar, if other than the Trustee, duly
executed by, the holder thereof or his or her attorney duly authorized in
writing.
Section 6.3 No Charge; Disposition of Void Certificates. No
service charge shall be made for any registration of transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar, if other
than 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. All cancelled Certificates held
by the Trustee or the Certificate Registrar, if other than the Trustee,
shall be destroyed by the Trustee.
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates. If (i) any mutilated Certificate is surrendered to the
Trustee, any authenticating agent or the Certificate Registrar, if other
than the Trustee, or if any of them receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to each such party such security or indemnity as they may
require to hold themselves and the Trust harmless, then, in the absence
of actual notice to a Responsible Officer of the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
authenticate and deliver in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of an
authorized denomina tion, of like tenor, like Initial Amount and like
Princi pal Balance. Upon the issuance of any new Certificate under this
Section 6.4, the Certificate Registrar, if other than the Trustee, the
Trustee and any authenticat ing agent may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses con nected therewith.
Any duplicate Certificate issued pursuant to this Section 6.4 shall
constitute complete and indefeasible evidence of ownership of the
undivided percentage interest in the Trust, as if originally is sued,
whether or not the mutilated, destroyed, lost or stolen Certificate shall
be found at any time.
Section 6.5 Persons Deemed Owners. The ownership of
Certificates shall be proved by the Certifi cate Register maintained by
Certificate Registrar pursu ant to the Declaration and neither the
Trustee nor the Borrower shall be affected by notice to the contrary.
Section 6.6 Access to List of Certificate- holders' Names
and Addresses. The Trustee will, at the request of any Certificateholder,
send communications to all Certificateholders by mail, but the Trustee
shall be entitled to all expenses, paid in advance, and an appropriate
indemnification from the requesting Certificate holder.
Section 6.7 Book Entry. Anything in the other provisions of
this Declaration to the contrary notwithstanding, it is intended that
beneficial ownership of the Certificates be evidenced by book entry. For
such purpose, effective as of the Closing Date, the Trustee
shall execute and deliver to DTC a single global certifi cate for the
Certificates, registered in the name of Cede & Co., DTC's nominee, for
deposit with DTC. On or prior to the Closing Date, the Trustee shall
enter into the DTC Letter, the terms of which shall take precedence over
any provisions in this Declaration to the contrary with respect to the
matters to which such terms relate. In the event that at any time when
DTC or a successor secu rities depository for the Certificates is acting
as securities depository for the Certificates, the Depositor shall
determine that the Certificateholders should be able to obtain
certificates representing the Certificates notwithstanding that DTC or a
successor securities depos itory will continue to act as securities
depository, the Depositor shall so notify the Trustee which shall in turn
notify DTC or such successor securities depository of the availability of
such certificates. In such event, the Trustee shall execute and deliver
on behalf of the Trust certificates representing the Certificates to DTC
or such successor securities depository for delivery thereof by DTC or
such successor securities depository to the Cer tificateholders. At any
time during the term of this Declaration, the Trustee shall have the
right, upon not less than thirty (30) days' notice to DTC, to remove DTC
as securities depository for the Certificates. In such event the Trustee
may, but need not, designate a succes sor securities depository for the
Certificates, subject to the terms and conditions of this Declaration.
ARTICLE VII
The Trustee
Section 7.1 Duties of Trustee. (a) The Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in the Declara tion. If an Event of Default that
is a payment default or any other Event of Default actually known to a
Respon sible Officer of the Trustee has occurred (which has not been
cured), the Trustee shall exercise such of the rights and powers vested
in it by the Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own af fairs.
(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 the Declaration, shall examine
them to determine whether they conform as to form to the requirements of
the Declaration.
(c) No provision of the Declaration shall be construed
to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided,
however, that:
(i) prior to the time that a Responsible Officer of
the Trustee gains actual knowledge of the occurrence of an Event of
Default and after the curing of all such Events of Default which
may have occurred, the duties and obligations of the Trustee shall
be deter mined solely by the express provisions of the Declaration,
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in the
Declaration, no implied covenants or obli gations shall be read
into the Declaration against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee (subject to Section
7.1(b)) 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 and conforming to
the requirements of the Declaration;
(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer of
the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the per tinent facts; and
(iii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of Certificateholders
representing a majority of the aggregate Principal Amount of
outstanding Certificates 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
the Declaration.
(d) Other than pursuant to Section 3.7, 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 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.
(e) Whether or not herein expressly so provided, every
provision of the Declaration relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provi sions of this Section 7.1.
Section 7.2 Certain Matters Affecting the Trustee. Subject to
Section 7.1, in its capacity as Trustee:
(a) in the administration of the Trust pursuant to this
Declaration, the Trustee may, whenever it reasonably deems it is
necessary or desirable that a matter be proved or established,
request a certificate signed by an authorized offi cer of the
Borrower for the purpose of proving or establishing such matter;
(b) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates, opinions, statements, instruments, reports, notices,
requests, consents or other documents furnished to the Trustee and
reasonably believed by it to be genuine and to have been signed and
presented to it pursuant to the Declaration; but in the case of any
such certificates, opinions, statements, instru ments, reports,
notices, requests, consents or other documents which by any
provisions hereof are spe cifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform as to form as to the
requirements of the Declaration;
(c) the Trustee may consult with counsel and the advice
of such counsel or 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 advice or Opinion of Coun sel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by the
Declaration, 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 the
Declaration, unless such Certificateholders shall have offered to
the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be in
curred therein or thereby; provided, however, subject to Section
7.1(d), nothing contained in the Declaration shall relieve the
Trustee of the obligations, upon the occurrence and continuance of
an Event of Default, to exercise such of the rights and powers
vested in it by the Declaration and to use the same degree of care
and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own
affairs;
(e) subject to Section 7.1(b), prior to the occurrence
of an Event of Default and after the curing of all such Events of
Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by
Certificateholders representing 25% or more in Percentage Interest
of the Certificates; provided, however, 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 reasonable opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of the Declaration, the Trustee may require indemnity
satisfactory to the Trustee against such cost, expense or liability
as a condition to so proceeding;
(f) the Trustee may exercise any of the trusts or
powers under the Declaration or perform any duties under the
Declaration either directly or by or through agents, attorneys,
custodians or nominees;
(g) except as otherwise expressly provided in Section
3.7, the Trustee shall not be liable, in its individual capacity,
for any action taken, suffered or omitted by it in good faith and
believed by it in good faith to be authorized or within the
discretion or rights or powers conferred upon it by the
Declaration; and
(h) the Trustee shall not be charged with actual
knowledge of an Event of Default or a default under the Guarantee,
the Eximbank Payment Certifi cate or the Liquidity Agreement, if
any (other than a failure by the Borrower, the Guarantor, if any,
Eximbank or the Liquidity Provider, if any, as the case may be, to
make a payment when due under the Promissory Notes, the Guarantee,
the Eximbank Pay ment Certificate or the Liquidity Agreement, if
any) unless a Responsible Officer of the Trustee at the Principal
Corporate Trust Office obtains actual knowledge of such Event of
Default or such default or the Trustee receives written notice
thereof from the Borrower, Eximbank or a Certificateholder and may
in the absence of such notice conclusively presume that no such
Event of Default has occurred.
Section 7.3 Trustee Not Liable for Certificates, etc. (a)
The Trustee assumes no responsibility or liability for, and makes no
representations as to, the validity or sufficiency of, or as to the
accuracy of the recitals, if any, set forth in the Certificates (other
than the execution and authentication thereof), the Promissory Notes, the
Credit Agreement, the Guarantee, the Guarantee Agreement, or the
Liquidity Agreement, if any, or the accuracy of the recitals contained in
the Declaration, except that the Trustee hereby represents, warrants and
covenants that the Declaration has been and each of such other agreements
or documents which contem plates execution thereof by the Trustee has
been or will be executed and delivered by a Responsible Officer of the
Trustee who is or will be duly authorized to execute and deliver such
agreement or document on the Trustee's behalf and that, when so duly
authorized, executed and delivered by the Trustee (assuming due
authorization, execution and delivery of such other documents by such
other parties thereto) the Declaration will constitute a valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, receivership, conservatorship, liquidation,
reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors of national banking associations
generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(b) Subject to Section 7.1, if no Event of Default has
occurred, the Trustee shall have no re sponsibility or liability for or
with respect to the enforcement of the Promissory Notes, the Guarantee or
the Liquidity Agreement, if any. If no default under the Eximbank Payment
Certificate has occurred, the Trustee shall have no responsibility or
liability for or with respect to the enforcement of the Eximbank Payment
Cer tificate. Except for such liability as is finally deter mined to have
resulted from the Trustee's negligence or bad faith and, except as
otherwise provided in Section 3.7, (i) no recourse shall be had for any
claim based on any provision of the Declaration, the Certificates, the
Promissory Notes, the Credit Agreement, the Guarantee, the Guarantee
Agreement or the Liquidity Agreement, if any, against the Trustee in its
individual capacity, (ii) the Trustee shall not have any obligation,
liability or duty whatsoever, in its individual capacity, to any
Certificateholder or any other person with respect to any such claim, and
(iii) any such claim shall be asserted solely against the Trust.
Section 7.4 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not the
Trustee.
Section 7.5 Rights of Certificateholders and Liquidity
Provider to Direct Trustee; Limitation of Exercise of Remedies by
Certificateholders and Liquidity Provider. (a) Certificateholders
representing 25% or more in Percentage Interest of the Certificates and
the Liquidity Provider, if any, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee under the Declaration, or exercising any trust power
conferred on the Trustee under the Declaration; provided, however, that
any direction to the Trustee which would alter the timing, method or
effect of any claim or notice required to be made by the Trustee pursuant
to Section 3.3 or Section 5.2 shall be given only with the written
consent of all of the Certificateholders and the Liquidity Provider, if
any; provided, further, subject to Section 7.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee, being
advised by counsel, determines that the action so directed may not
lawfully be taken, or if the Trustee in good faith determines that the
action so directed would be illegal or would be unduly prejudicial to the
rights of Certificateholders or the Liquidity Provider not parties to
such direction, or if the Trustee determines in good faith that the
action would involve it in personal liability, unless the Trustee shall
have been indemnified by such Certificateholders or Liquidity Provider
against liability, cost or expense (including counsel fees and expenses)
which may be in curred in connection therewith; and provided, further
that nothing in the Declaration shall impair the right of the Trustee to
take any action deemed proper by the Trustee and which is not
inconsistent with such direction by the Certificateholders or a Liquidity
Provider or the Declaration.
(b) Neither a Liquidity Provider nor a Certificateholder may
pursue any remedy with respect to the Declaration (including without
limitation the initiation of any action, suit or proceeding) or give any
Payment Demand unless:
(1) the Certificateholder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) such Liquidity Provider or the holders of at least 25% in
Percentage Interest of the Certifi xxxxx make a written request to
the Trustee to pursue the remedy or give the Payment Demand;
(3) the Liquidity Provider or Certificateholder or
Certificateholders, as the case may be, making the written request
pursuant to clause (2) above offer to the Trustee reasonable
security or indemni ty against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) in the case of a written request pursuant to clause (2)
above made by Certificateholders, neither the Liquidity Provider
nor the holders of at least 25% in Percentage Interest of the
Certificates do not give the Trustee a direction inconsistent with
the request during such 60-day period.
(c) Notwithstanding Section 7.5(b), the Liquidity
Provider or any Certificateholder may pursue remedies against the Trustee
upon any failure to pay any Special Payment Amount following notice by a
Certificate holder pursuant to Section 3.7(b).
(d) A Certificateholder may not use the Declaration to
prejudice the rights of another Certificateholder or to obtain a
preference or priority over another Certificateholder.
Section 7.6 Trustee's Fees and Expenses. (a) The Trustee
shall be entitled to the fees and ex penses and indemnity (the "Trustee's
Fees and Expenses") for the following:
(i) payment as compensation for all services
rendered by it under or as contemplated by the Declaration in its
capacity as Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee in an
express trust);
(ii) as reimbursement to the Trustee and any
predecessor Trustee for all expenses, disbursements and advances
incurred or made by the Trustee and any predecessor Trustee under
or as contemplated by the Decla ration in its capacity as Trustee
(including accountant's fees and expenses and fees and ex penses of
the Trustee's other agents and counsel); and
(iii) as indemnification of the Trustee and any
predecessor Trustee for, and to hold it harmless against any loss,
liability or expense arising out of or in connection with, the
acceptance or administration of the Trust and its duties as
Trustee, including the costs and expenses of defending itself
against any claim or liability in connection with the exer cise or
performance of any of its powers or duties except to the extent
attributable to negligence or bad faith on its part;
provided, however, that notwithstanding the foregoing, (a) the Trustee's
Fees and Expenses to which the Trustee shall be entitled to shall in no
event exceed the Trustee's Fees (except that, if no Liquidity Agreement
has been delivered, under the circumstances described in Section 3.6,
Investment Earnings to the extent set forth in such Section exceed such
Trustee's Fees), and (b) except as expressly provided otherwise in the
Declara tion, neither the Trust nor any Certificateholder shall in any
event be responsible for the payment to the Trust ee of any amount of
Trustee's Fees and Expenses.
(b) The Trustee hereby agrees that, if no Liquidity
Agreement has been delivered, under the circum stances described in
Section 3.6, the retention by the Trustee of Investment Earnings, if any,
to the extent set forth in such Section shall constitute full payment of
the Trustee Basic Fee.
Section 7.7 Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a corporation having a corporate
trust office in the United States and organized and doing business under
the laws of the United States or any state of the United States,
authorized under applicable law to exercise corporate trust powers, and
having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authorities.
Such corporation shall maintain bankers blanket bond or similar
insurance coverage against losses arising out of the infidelity of its
employees engaged in trust or other fiduciary capacities of the type and
in the amount and with the deductibles that are customary for its
business and size. If such corporation publishes reports of condition at
least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section
7.7, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
7.7, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.8. Notwithstanding anything to the contrary
contained in this Section 7.7, any such corporation shall be a bank or
trust company, the securities of which are exempt from registration with
the Commission pursuant to Section 3(a)(2) of the Securities Act.
Section 7.8 Resignation or Removal of Trustee.
(a) Subject to the following sentence, the Trustee may
at any time resign and be discharged from the Trust by giving written
notice thereof to the Borrow er, Eximbank, the Certificate Registrar, if
other than the Trustee and the Liquidity Provider, if any. Before such
resignation or discharge shall become effective, the Borrower shall
appoint, with the consent of Eximbank, a successor Trustee by written
instrument, one copy of which instrument shall be delivered to each of
the re signing Trustee, the Certificate Registrar, if other than the
Trustee, the Borrower, Eximbank, the Liquidity Pro vider, if any, and the
successor Trustee. If no succes sor Trustee shall have been so appointed
and have accept ed appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee or any bona fide
Certificateholder may petition any court of compe tent jurisdiction for
the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be
eligible with respect to the Trust in accor dance with the provisions of
Section 7.7 and shall fail to resign after written request therefor by
the Borrower, the Liquidity Provider, if any, or Certificateholders
representing 25% or more in Percentage Interest of the Certificates, or
if at any time the Trustee shall be legally unable to act, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
proper ty shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purposes of
rehabilitation, conservation or liquidation, then the Borrower, with the
consent of Eximbank, or any court of competent jurisdiction upon the
petition of one or more bona fide Certificateholders, may remove the
Trustee. If the Trustee is removed under the authority of the immediately
preceding sentences, the Borrower, with the consent of Eximbank, shall
promptly appoint a successor Trustee (other than the outgoing Trustee) by
written instrument, one copy of which instru ment shall be delivered to
each of the Trustee so re moved, the successor Trustee, the Certificate
Registrar, if any, Eximbank and the Liquidity Provider, if any. If no
successor Trustee shall have been so appointed and have accepted
appointment within 30 days after a determi nation to remove the Trustee,
the Trustee whose removal is sought or any bona fide Certificateholder
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to any of the provisions of
this Section 7.8 shall not become effective until acceptance of
appointment by the successor Trustee and transfer of the property of the
Trust to the successor Trustee as provided in Section 7.9.
Section 7.9 Successor Trustee. (a) Any successor Trustee
appointed as provided in Section 7.8 shall execute, acknowledge and
deliver to the Borrower, Eximbank and to its predecessor Trustee an
instrument accepting such appointment under the Declaration and the
transfer of the property of the Trust to such successor Trustee and
thereupon the resignation or removal of the predecessor Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under the Declaration
and with like effect as if origi xxxxx named as Trustee. The predecessor
Trustee shall deliver or cause to be delivered to the successor Trustee
or its designee the Promissory Notes, the Guarantee, the Guarantee
Agreement, the Eximbank Payment Certificate, if any, the Liquidity
Agreement, if any, any other Trust property and any related documents and
statements held by it under the Declaration, and the Borrower and the
prede cessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Trustee all such rights, powers,
duties and obligations. In addition, in the event that the related
Supplement provides for the payment in full of the fee of the Trustee on
the Closing Date, the predecessor Trustee shall pay to the successor
Trustee, on the date on which such successor Trustee becomes vested with
the rights, powers, duties and obligations of its predecessor under the
Declaration, an amount equal to the present value (calculated on the same
basis as the payment in full of such trustee fee at the Closing Date and
on the basis of a term equal to the period from the date of vesting to
the latest Maturity of any of the Promissory Notes) of any unearned
portion of the prepaid trustee fee.
(b) No successor Trustee shall accept appointment as
provided in this Section 7.9 unless at the time of such acceptance (i)
such successor Trustee is eligible under the provisions of Section 7.7
and (ii) the securities or deposits of such successor Trustee have the
Required Trustee Ratings or each of the Rating Agencies has confirmed in
writing that the appointment of such successor Trustee would not
adversely affect the ratings then assigned to the Certificates by such
Rating Agency.
(c) Upon acceptance of appointment by a successor
Trustee as provided in this Section 7.9, the successor Trustee shall
cause notice of the succession of the Trustee to be mailed to each
Certificateholder at its address as shown in the Certificate Register.
(d) In addition, no successor Trustee shall accept
appointment as provided in this Section 7.9 unless at the time of such
acceptance either (i) such successor Trustee is a bank or trust company
the securities of which are exempt from registration with the Commission
pursuant to Section 3(a)(2) of the Securities Act and such successor
Trustee has accepted the obliga tions of the predecessor Trustee pursuant
to Section 3.7 or (ii) the predecessor Trustee has retained the abso
lute, unconditional and irrevocable obligation pursuant to Section 3.7.
Section 7.10 Merger or Consolidation of Trustee. Without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate
trust busi ness of the Trustee, shall be the successor of the Trust ee
hereunder, if and only if (i) such corporation shall be eligible under
the provisions of Section 7.7 and (ii) the securities or deposits of such
corporation have the Required Trustee Ratings or each of the Rating
Agencies has confirmed in writing that the service by such corpo ration
as Trustee would not adversely affect the ratings then assigned to the
Certificates by such Rating Agency. Notwithstanding anything to the
contrary contained in this Section 7.10, any such corporation shall be a
bank or trust company, the securities of which are exempt from
registration with the Commission pursuant to Section 3(a)(2) of the
Securities Act.
Section 7.11 Authenticating Agent. (a) From time to time,
the Trustee may appoint one or more authen ticating agents with respect
to the Certificates which shall be authorized to act on behalf of the
Trustee in authenticating Certificates in connection with the issuance,
delivery and registration of transfer or exchange of the Certificates.
Wherever reference is made in the Declaration 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 an institution meeting the
requirements of Section 7.7.
(b) Any institution meeting the requirements of Section
7.7 succeeding to the corporate agency business of an authenticating
agent shall continue to be an authenticating agent without the execution
or filing of any paper or any further act on the part of the Trust ee or
such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Trustee. The Trustee may at
any time terminate the agency of an authenticating agent by giving notice
of termination to such authenticating agent.
(d) The Trustee agrees to pay to each authenticating
agent from time to time reasonable compen sation for its services under
this Section, and the Trustee shall be entitled to be reimbursed for such
payments only pursuant to the provisions of Section 7.6(a).
(e) The provisions of Sections 7.1, 7.2, 7.3 and 7.4
shall be applicable to any authenticating agent (other than for its
authentication of the Certifi xxxxx).
(f) Pursuant to an appointment made under this Section
7.11, the Certificates may have endorsed thereon, in lieu of the
Trustee's certificate of authen tication, an alternate certificate of
authentication in substantially the following form:
This is one of the Certificates described in the
within-mentioned Declaration of Trust.
[NAME OF AUTHENTICATING AGENT]
------------------------------
as Authenticating Agent
for the Trustee,
--------------------------------
Authorized Officer
Section 7.12 Trustee May Enforce Claims With out Possession
of Certificates. All rights of action and claims under the Declaration,
the Promissory Notes, the Guarantee, the Guarantee Agreement, the
Eximbank Payment Certificate, if any, or the Certificates may be prosecuted
and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be
brought in the name of the Trustee or in its capacity as Trustee. Any
recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel in con nection with such recovery, be for
the equal and ratable benefit of the Certificateholders, with any amount
avail able after distribution in full has been made to the
Certificateholders to be distributed in accordance with Section 5.3(a).
Section 7.13 Suits for Enforcement. In case an Event of
Default shall occur and be continuing, the Trustee in its discretion may
(but shall not be obligated to), subject to the provisions of Section 3.3
and Section 7.5, proceed to protect and enforce its rights and the rights
of the Certificateholders and Liquidity Provider, if any, under the
Declaration by a suit, action or pro ceeding in equity or at law or
otherwise, whether for (i) enforcement of the Credit Agreement, including
any cove nants contained therein, (ii) enforcement of the Promis sory
Notes, (iii) enforcement of the Guarantee, the Guar xxxxx Agreement and
the Eximbank Payment Certificate, (iv) the specific performance of any
covenant or agree ment contained in the Declaration, (v) in aid of the
execution of any power granted in the Declaration, the Promissory Notes,
the Guarantee, the Guarantee Agreement, the Eximbank Payment Certificate,
or the Liquidity Agree ment, if any, or (vi) for the enforcement of any
other legal, equitable or other remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee, the Certif icateholders or any Liquidity Provider;
provided, howev er, that, unless Eximbank shall have failed to make any
payment under the Guarantee or the Eximbank Payment Certificate, the
Trustee shall not take any action pursu ant to clauses (i) and (ii) of
this sentence without the written consent of Eximbank.
Section 7.14 Powers of Trustee. Anything in the Declaration
to the contrary notwithstanding, (i) the Trustee shall have the legal
power to exercise all the rights, powers and privileges of a holder of
and as Lender under the Promissory Notes as provided thereunder and under
the Guarantee Agreement and the Eximbank Pay ment Certificate, if any,
(ii) in case the Trustee has not received by a date on which
distributions are to be made on the Certificates an amount of principal
and interest under the Promissory Notes, the Eximbank Payment Certificate
or the Liquidity Agreement, if any, suffi cient to make the distributions
under clauses (i) and (ii) of Section 5.3(a) on such date, the Trustee
may recover judgment in its own name and as trustee of an express trust
(A) against Eximbank for the amount then due and payable under the
Guarantee and the Eximbank Payment Certificate, (B) against the Borrower
and the Guarantor, if any, if following an Eximbank Payment Event
Eximbank fails to make any payment under the Guarantee or the Eximbank
Payment Certificate, for the whole amount of principal of, interest on
and other amounts payable with respect to the Promissory Notes, and (C)
against the Liquidity Provider, if any, for the amount then due and
payable under the Liquidity Agreement, and (iii) the Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee, the
Certificateholders and the Liquidity Provider, if any, allowed in any
xxxx cial proceedings.
Section 7.15 Waiver of Setoff, Counterclaim. The Trustee, in
its capacity as Trustee and as "Noteholder" (as defined in the Credit
Agreement) and in its individual capacity with respect to amounts paid
under Section 3.7, hereby waives any rights that it may have of set-off
or counterclaim with respect to any amounts paid with respect to the
Promissory Notes (in cluding any Advance under the Liquidity Agreement),
the Credit Agreement or the Guarantee.
ARTICLE VIII
Miscellaneous
Section 8.1 Termination. The Declaration shall terminate
after the aggregate amount distributed to all Certificateholders
hereunder equals the full amount due and payable in respect of all the
Certificates in accordance with the terms thereof and any other amounts
held by the Trustee have been distributed in accordance with the
provisions hereof; provided, however, that the right of the Trustee to
the Trustee's Fees and Expenses shall survive termination and provided,
further that (i) the Trustee's obligations to file a Preference Payment
Demand and to distribute any payments from Eximbank with respect thereto
and (ii) the rights of the Liquidity Provider, if any, to receive funds
with respect to out standing Advances and interest thereon at the Advance
Rate, shall, in each case, survive termination. In no event shall the
trust created hereby continue beyond the expiration of 21 years from the
death of the last survi vor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living
on the date of the Supplement.
Section 8.2 Action by Certificateholders. (a) Except as
otherwise specifically provided in the Declaration, whenever
Certificateholder approval, autho rization, direction, notice, consent,
waiver, or other action is required under the Declaration, such
direction, notice, consent, waiver or other action shall be deemed to
have been given or taken on behalf of, and shall be binding upon, all
Certificateholders if agreed to by Certificateholders representing a
majority of the aggre gate Principal Amount of the outstanding
Certificates.
(b) Any request, demand, authorization, direction,
notice, consent, waiver or other action pro vided by the Declaration to
be given or taken by Certifi cateholders may be embodied in and evidenced
by an in strument in writing executed in one or more counterparts signed
by such Certificateholders in person or by an agent or attorney-in-fact
duly appointed and authorized in writing; and except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof of
execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of the Declaration and (subject
to Section 7.1) conclusive in favor of the Trustee if made in the manner
provided in this Section 8.2.
(c) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every
holder of Certificates issued upon the registration of transfer thereof
or an exchange therefor or in lieu thereof, whether or not notation of
such act is made upon such Certificate.
Section 8.3 Amendments. (a) Subject to Sec tion 8.3(g) and
Section 8.3(h), the Declaration may be amended from time to time by the
Trustee and the Borrow er, without the consent of the Depositor or any of
the Certificateholders except as required by Section 8.3(g), to cure any
ambiguity, to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or to add any other
provisions with respect to matters or questions arising under the
Declaration which shall not be inconsistent with the provisions of the
Declaration; provided, that, such action will not, as evidenced by an
Opinion of Counsel delivered to the Trustee (at the expense of the Person
requesting such action) adversely affect in any material respect the
interests of any Certificateholder.
(b) Subject to Section 8.3(g) and Section 8.3(h), the
Declaration may also be amended from time to time by the Trustee and the
Borrower, with the consent of Certificateholders representing at least
25% in Percent age Interest of the Certificates but without the consent
of the Depositor, for the purpose of adding any provi sions to or
changing in any manner or eliminating any of the provisions of this
Declaration or of modifying in any manner the rights of the
Certificateholders; provided, however, without the unanimous consent of
the Certif icateholders, no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, collections of payment on the
Promissory Notes, the Guarantee or the Eximbank Payment Certificate or
distributions which are required to be made on any Certificate, (ii)
reduce in any manner the amount of, or delay the timing of, the Trust's
receipt of Advances or any portion thereof, (iii) reduce the aforesaid
percentage required to consent to any such amendment or (iv) reduce the
aforesaid percent ages required to consent to any such amendment.
(c) Promptly after the execution of any amendment or
consent pursuant to this Section 8.3, the Trustee shall furnish or cause
to be furnished written notification of the substance of such amendment
to each Certificateholder, the Depositor, the Borrower, Eximbank, the
Liquidity Provider, if any, and the Rating Agencies.
(d) If the consent of Certificateholders under this
Section 8.3 is required in connection with a proposed amendment, it shall
not be necessary for the Certificateholders 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 authori zation of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as
the Trustee may prescribe.
(e) The Trustee may, but shall not be obligated to,
enter into any amendment under this Section 8.3 which affects the
Trustee's own rights, duties or immunities under the Declaration or
otherwise.
(f) In connection with any amendment pursuant to this
Section 8.3, the Trustee shall be entitled to receive an Officer's
Certificate and an Opinion of Counsel to the effect that such amendment
is autho rized or permitted by the Declaration.
(g) No amendment or supplement to, and no modification
of, the Declaration shall be made unless the Trustee shall have received
a statement in writing from each of the Rating Agencies to the effect
that the pro posed amendment, supplement or modification will not result
in a downgrading or withdrawal of the rating assigned to the Certificates
by such Rating Agency, which shall have received no less than 30 days'
notice (which notice may be waived by such Rating Agency) of such
amendment, supplement or modification; provided, however, the requirement
of this Section 8.3(g) shall not apply to any amendment, supplement or
modification that does not require the approval of any
Certificateholders; and provided, further, the requirement of this
Section 8.3(g) shall not apply to any amendment, supplement or modifica
tion that has been unanimously approved by all Certifi cateholders.
(h) No amendment or supplement to, and no modification of,
the Declaration shall be made unless the Trustee shall have received an
Opinion of Counsel to the effect that the proposed amendment, supplement
or modifi cation will not cause the Trust to be treated other than as a
grantor trust for federal income tax purposes or render any part of the
Guarantee ineffective; provided, however, the requirement of this Section
8.3(h) shall not apply to any amendment, supplement or modification that
has been unanimously approved by all Certificateholders.
(i) Notwithstanding anything to the contrary contained
in this Section 8.3, (i) no amendment or supplement to, and no
modification of, Sections 3.6(b)(ii) or 3.6(d) shall be made unless the
Trustee shall have received the written consent of Eximbank, (ii) the
last paragraph of Section 8.4(a) may not be modified, amended or
supplemented without the consent of the Trust ee, (iii) no amendment or
supplement to, and no modifica tion of, the Declaration shall be made
without the con sent of the Depositor if such amendment, supplement or
modification would have a material adverse effect on the obligations or
liabilities of the Depositor under the Declaration and (iv) if a
Liquidity Agreement has been delivered, no amendment or supplement to,
and no modifi cation of, the Declaration shall be made without the
consent of the Liquidity Provider if such amendment, supplement or
modification would have a material adverse effect on the Liquidity
Provider, including, without limitation, any adverse effect on the amount
and timing of distributions to the Liquidity Provider pursuant to
Sections 5.3(b) and 5.4(c).
Section 8.4 Notices. (a) All communications, notices and
demands sent pursuant to the Declaration shall be in writing and shall
be deemed to have been duly given if delivered by the specified method of
deliv ery, or, if not specified, by telegram, telex, facsimile
transmission or hand delivery, to the appropriate addresses set forth in
the Supplement. All communications, notices and demands sent pursuant to
the immediately preceding sentence shall be deemed to have been given at
the time of delivery if delivered by hand or when con firmed by telephone
if sent by telex, telecopy or other wire transmission; provided, however,
all notices and demands sent pursuant to the Declaration to Eximbank
shall not be deemed to have been given unless actually received by
Eximbank.
(b) All communications and notices pursu ant to the
Declaration to a Certificateholder shall be in writing and delivered at
or mailed to the address shown in the Certificate Register.
Section 8.5 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of the Declaration
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 the Declaration
and shall in no way affect the validity or enforceability of the other
provisions of the Declaration or of the Certificates or the rights of
the holders thereof.
Section 8.6 Intention of Parties. The parties intend that
the Trust be classified (for Federal income tax purposes) as a grantor
trust under Subpart E, Part I of Subchapter J of the Code, and not as a
trust or association taxable as a corporation or as a partnership. The
powers granted and obligations undertaken in the Declaration shall be so
construed so as to further such intent.
Section 8.7 Headings. The headings in the Declaration are
for purposes of reference only and shall not otherwise affect the meaning
or interpretation of any provision hereof.
Section 8.8 Governing Law. THE DECLARATION AND THE
CERTIFICATES ISSUED PURSUANT TO THE DECLARATION SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Section 8.9 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificate holder shall not operate to
terminate the Declaration 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 Trust, nor otherwise affect the rights, obligations and
liabilities of the Trustee or the Borrower.
Section 8.10 Statements Required in Certifi cate or Opinion.
Each certificate or opinion with re spect to compliance with a condition
or covenant provided for in the Declaration shall include:
(i) a statement that the person making such
certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opin ion are based;
(iii) a statement that, in the opinion of such
person, he has made such exami nation or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with.
Section 8.11 Third Party Beneficiary. The provisions of and
rights created by the Declaration shall inure to, and are intended for,
the benefit of the Cer tificateholders, the Borrower, any Liquidity
Provider and the Trustee (collectively, the "Beneficiaries"), each to the
extent provided herein, and each Beneficiary shall be deemed to be a
third party beneficiary with respect thereto, entitled to enforce
directly and in its own name any rights or claims it may have under the
Declaration. No provision of the Declaration shall create any rights for
or be enforceable by any Person other than a Benefi ciary.
IN WITNESS WHEREOF, the undersigned have exe cuted this
instrument as of the date first above written.
CITIBANK, N.A., as Trustee
By:_____________________________
Title:
CITICORP NORTH AMERICA, INC.
By:_____________________________
Title:
ARTICLE I
Definitions
Section 1.1 Definitions.............................................. 1
Section 1.2 Assumptions Regarding the Promissory Notes............... 11
ARTICLE II
Delivery of the Promissory Notes
and the Other Trust Property
Section 2.1 Delivery of the Promissory Notes and the
Other Trust Property..................................... 11
Section 2.2 Conditions to Issuance of Certificates................... 12
Section 2.3 Purposes of Trust........................................ 13
Section 2.4 No Transfer of the Promissory Notes and the
Other Trust Property by the Trustee...................... 14
Section 2.5 Authority of Trustee..................................... 14
ARTICLE III
Section 3.1 General.................................................. 15
Section 3.2 Subsequent to the Closing Date........................... 15
Section 3.3 Notices by the Trustee to the Borrower, the
Guarantor, the Liquidity Provider and
Eximbank................................................. 17
Section 3.4 Facilitation of Borrower Payments........................ 20
Section 3.5 Enforcement of Guarantee, the Eximbank
Payment Certificate and Liquidity
Agreement.......................................... 20
Section 3.6 Maintenance of the Trust Account and the
Eximbank Payment Account................................. 20
Section 3.7 Trustee Obligation Upon Failure to Deliver
Payment Demand........................................... 24
ARTICLE IV
Reports
Section 4.1 Reports to Certificateholders............................ 25
Section 4.2 Tax Statements........................................... 27
Section 4.3 Annual Audits............................................ 27
Section 4.4 Notices to Rating Agencies............................... 27
Section 4.5 Reports to the Borrower.................................. 28
ARTICLE V
Payment and Collection
Section 5.1 Receipt of Payments...................................... 29
Section 5.2 Occurrence of Payment Deficiency......................... 29
Section 5.3 Disposition of Proceeds of Payments...................... 32
Section 5.4 Extraneous Payments...................................... 35
Section 5.5 Tender of Promissory Notes to Eximbank................... 36
Section 5.6 Accelerated Promissory Notes............................. 36
ARTICLE VI
The Certificates
Section 6.1 The Certificates......................................... 36
Section 6.2 Registration of Transfer and Exchange of
Certificates....................................... 37
Section 6.3 No Charge; Disposition of Void Certificates.............. 38
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates....................................... 38
Section 6.5 Persons Deemed Owners.................................... 39
Section 6.6 Access to List of Certificate-holders' Names
and Addresses............................................ 39
Section 6.7 Book Entry............................................... 39
ARTICLE VII
The Trustee
Section 7.1 Duties of Trustee........................................ 40
Section 7.2 Certain Matters Affecting the Trustee.................... 42
Section 7.3 Trustee Not Liable for Certificates, etc................. 44
Section 7.4 Trustee May Own Certificates............................. 45
Section 7.5 Rights of Certificateholders and Liquidity
Provider to Direct Trustee; Limitation of
Exercise of Remedies by Certificateholders
and Liquidity Provider................................... 45
Section 7.6 Trustee's Fees and Expenses.............................. 47
Section 7.7 Eligibility Requirements for Trustee..................... 48
Section 7.8 Resignation or Removal of Trustee........................ 48
Section 7.9 Successor Trustee........................................ 50
Section 7.10Merger or Consolidation of Trustee....................... 51
Section 7.11Authenticating Agent..................................... 51
Section 7.12Trustee May Enforce Claims Without Possession
of Certificates.......................................... 53
Section 7.13Suits for Enforcement.................................... 53
Section 7.14Powers of Trustee........................................ 54
Section 7.15Waiver of Setoff, Counterclaim........................... 54
ARTICLE VIII
Miscellaneous
Section 8.1 Termination.............................................. 54
Section 8.2 Action by Certificateholders............................. 55
Section 8.3 Amendments............................................... 56
Section 8.4 Notices.................................................. 58
Section 8.5 Severability of Provisions............................... 58
Section 8.6 Intention of Parties..................................... 59
Section 8.7 Headings................................................. 56
Section 8.8 Governing Law............................................ 56
Section 8.9 Limitation on Rights of Certificateholders............... 56
Section 8.10Statements Required in Certificate or
Opinion............................................ 56
Section 8.11Third Party Beneficiary.................................. 57
