EXHIBIT 4.1
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Standard Terms for Trust Agreements
between
Southpoint Structured Assets, Inc.,
as Depositor
and
[Trustee],
as Trustee
Trust Certificates
dated as of [__________, 199___]
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TABLE OF CONTENTS
HEADING DESCRIPTION PAGE
PRELIMINARY STATEMENT........................................................ 1
ARTICLE I DEFINITIONS AND ASSUMPTIONS................................... 1
Section 1.01. Definitions.............................................. 1
Section 1.02. Rules of Construction.................................... 16
Section 1.03. Compliance Certificates and Opinions; Record Date........ 16
ARTICLE II DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES;
PURPOSE AND CLASSIFICATION OF TRUSTS.......................... 17
Section 2.01. Creation and Declaration of Trusts: Assignment of
Underlying Securities.................................... 17
Section 2.02. Acceptance by Trustee.................................... 19
Section 2.03. Representations and Warranties of the Depositor.......... 19
Section 2.04. Breach of Representation, Warranty or Covenant........... 20
Section 2.05. Agreement to Authenticate and Deliver Certificates....... 20
ARTICLE III ADMINISTRATION OF EACH TRUST.................................. 20
Section 3.01. Administration of each Trust............................. 20
Section 3.02. Collection of Certain Underlying Security Payments....... 21
Section 3.03. Certificate Account...................................... 21
Section 3.04. Liquidation of the Underlying Securities................. 22
Section 3.05. Investment of Funds in the Accounts...................... 22
Section 3.06. Maintenance of Credit Support............................ 23
Section 3.07. Realization Upon Defaulted Underlying Securities......... 23
Section 3.08. Retained Interest........................................ 24
Section 3.09. Access to Certain Documentation.......................... 24
Section 3.10. Reports by the Depositor................................. 24
Section 3.11. Charges and Expenses..................................... 25
ARTICLE IV DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS............... 25
Section 4.01. Distributions............................................ 25
Section 4.02. Distributions on Certificates............................ 26
Section 4.03. Reports to Certificateholders............................ 27
Section 4.04. Advances................................................. 28
Section 4.05. Allocation of Realized Losses and Trust Expenses......... 29
Section 4.06. Compliance with Withholding Requirements................. 29
ARTICLE V THE CERTIFICATES.............................................. 30
Section 5.01. The Certificates......................................... 30
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Section 5.02. Execution, Authentication and Delivery........................................................... 30
Section 5.03. Temporary Certificates........................................................................... 31
Section 5.04. Registration; Registration of Transfer and Exchange.............................................. 32
Section 5.05. Mutilated, Destroyed, Lost and Stolen Certificates............................................... 35
Section 5.06. Persons Deemed Owners............................................................................ 35
Section 5.07. Cancellation..................................................................................... 35
Section 5.08. Global Securities................................................................................ 36
Section 5.09. Notices to Depository............................................................................ 37
Section 5.10. Definitive Certificates.......................................................................... 37
Section 5.11. Conditions of Authentication and Delivery of New Series.......................................... 37
Section 5.12. Appointment of Paying Agent...................................................................... 38
Section 5.13. Authenticating Agent............................................................................. 39
Section 5.14. Voting Rights with Respect to Underlying Securities.............................................. 40
Section 5.15. Actions by Certificateholders.................................................................... 41
Section 5.16. Events of Default................................................................................ 41
Section 5.17. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit............................... 41
Section 5.18. Control by Certificateholders.................................................................... 42
Section 5.19. Waiver of Past Defaults.......................................................................... 42
Section 5.20. Right of Certificateholders to Receive Payments Not to Be Impaired............................... 43
Section 5.21. Remedies Cumulative.............................................................................. 43
ARTICLE VI THE DEPOSITOR..................................................................................... 43
Section 6.01. Liability of the Depositor....................................................................... 43
Section 6.02. Limitation on Liability of the Depositor......................................................... 43
Section 6.03. Depositor May Purchase Certificates.............................................................. 44
Section 6.04. Merger or Consolidation of the Depositor......................................................... 44
Section 6.05. No Liability of the Depositor with Respect to the Underlying Securities.......................... 45
ARTICLE VII CONCERNING THE TRUSTEE............................................................................ 45
Section 7.01. Duties of Trustee................................................................................ 45
Section 7.02. Between Trustee and Sub-Administrative Agents.................................................... 48
Section 7.03. Certain Matters Affecting the Trustee............................................................ 49
Section 7.04. Trustee Not Liable for Recitals in Certificates or Underlying Securities......................... 50
Section 7.05. Trustee May Own Certificates..................................................................... 50
Section 7.06. Trustee's Fees and Expenses...................................................................... 51
Section 7.07. Eligibility Requirements for Trustee............................................................. 52
Section 7.08. Resignation or Removal of the Trustee; Appointment of Successor Trustee.......................... 52
Section 7.09. Appointment of Office or Agency.................................................................. 53
Section 7.10. Representations and Warranties of Trustee........................................................ 53
Section 7.11. Indemnification of Trustee by the Depositor; Contribution........................................ 55
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Section 7.12. No Liability of the Trustee with Respect to the
Underlying Securities; Certificateholders to
Proceed Directly Against the Underlying
Securities Issuer(s) ............................... 56
Section 7.13. The Depositor To Furnish Trustee with Names and
Addresses of Certificateholders .................... 56
Section 7.14. Preservation of Information ........................ 56
Section 7.15. Reports by Trustee ................................. 57
Section 7.16. Trustee's Application for Instructions from the
Depositor .......................................... 57
[ARTICLE VIII MARKET AGENT] ........................................ 57
[Section 8.01. Market Agent] ...................................... 57
ARTICLE IX TERMINATION .......................................... 58
Section 9.01. Termination upon Liquidation of All Underlying
Securities ......................................... 58
ARTICLE X MISCELLANEOUS PROVISIONS ............................. 58
Section 10.01. Amendment .......................................... 58
Section 10.02. Limitation on Rights of Certificateholders ......... 60
Section 10.03. Governing Law ...................................... 61
Section 10.04. Notices ............................................ 61
Section 10.05. Notice to Rating Agencies .......................... 61
Section 10.06. Severability of Provisions ......................... 62
Section 10.07. Grant of Security Interest ......................... 62
Section 10.08. Nonpetition Covenant ............................... 63
Section 10.09. No Recourse ........................................ 64
Section 10.10. Article and Section References ..................... 64
Section 10.11. Counterparts ....................................... 64
Section 10.12. Trust Indenture Act Controls ....................... 64
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Standard Terms for Trust Agreements, dated as of [_________, 199___], among
Southpoint Structured Assets, Inc., a Delaware corporation, as Depositor, and
[Trustee], a _____________ banking corporation, as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the execution and
delivery of these Standard Terms for Trust Agreements (the "Standard Terms") to
provide for one or more Series (and one or more Classes within each such Series)
of Certificates, issuable from time to time as provided in these Standard Terms.
Each such Series (inclusive of any Classes specified within such Series) of
Certificates will be issued only under a separate Series Supplement to these
Standard Terms, duly executed and delivered by the Depositor and the Trustee.
With respect to each Series, the applicable Series Supplement, together with
these Standard Terms, shall be known as the "Trust Agreement."
All representations, covenants and agreements made herein by each of the
Depositor and the Trustee are for the benefit and security of the
Certificateholders and, to the extent provided in the applicable Series
Supplement, for the benefit and security of any Credit Support Provider or any
other party as specified therein;
The Depositor is entering into these Standard Terms, and the Trustee in
accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
Section 1.01. Definitions. Except as otherwise specified herein r in the
applicable Series Supplement or as the contex may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Trust Agreement.
"Account." As defined in Section 3.05.
"Accounting Date." With respect to any Series, if applicable, as
defined in the related Series Supplement.
"Advance." As defined in Section 4.04.
"Affiliate." With respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to
any specified Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Allowable Expense Amount." With respect to any Series, as defined in
the related Series Supplement.
"Authenticating Agent." As defined in Section 5.13.
"Authorized Newspaper." A newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 5.01
with respect to the Certificates of any Series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Available Funds." Unless otherwise specified in the applicable Series
Supplement, for any Distribution Date in respect of a given Series or Class, the
sum of (i) all amounts actually received on or with respect to the Underlying
Securities (including Liquidation Proceeds and investment income on amounts in
the Accounts) with respect to such Series during the related Collection Period,
(ii) all amounts received pursuant to any Credit Support Instruments with
respect to such Series for such Distribution Date and (iii) all other amounts,
if any, specified by the applicable Series Supplement.
"Basic Documents." With respect to any Series, if applicable, as
defined in the related Series Supplement.
"Beneficial Owner." Shall mean, with respect to Certificates held
through a Depository, the beneficial owner of a Certificate. For purposes only
of Section 5.15, the Trustee shall be obligated to treat a Person who claims to
be a beneficial owner of a Certificate as a "Beneficial Owner" within the
meaning of the Series Supplement only if such Person has first delivered to the
Trustee, (i) a certificate or other writing executed by such Person stating the
full name and address of such Person, the principal distribution amount of the
Certificate with respect to which such Person claims to be the Beneficial Owner,
and the participant in the Depository ("such Person's Participant") through
which such Person holds its beneficial ownership interest in the Certificates
and (ii) a certificate or other writing executed by such Person's Participant
confirming that such Person's Participant holds on its own books and records
Certificates for the account of such Beneficial Owner and identifying the
principal distribution amount held for such Beneficial Owner.
"Business Day." With respect to any Place of Distribution specified
pursuant to Section 5.01, any day that is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in such Place
of Distribution are authorized or obligated by law, regulation or executive
order to close or any day which is not a Business
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Day with respect to the Underlying Securities, except as otherwise specified
pursuant to Section 5.01 and any Business Day specified with respect to the
Underlying Securities.
"Call Premium Percentage." With respect to any Series (or Class with
such Series), if applicable, as defined in the related Series Supplement.
"Certificate Account." As defined in Section 3.03.
"Certificate Owners." As defined in Section 5.08.
"Certificate Principal Balance." With respect to an Outstanding
Certificate, as determined at any time, the maximum amount that the Holder
thereof is entitled to receive as distributions allocable to principal payments
on the Underlying Securities. The Certificate Principal Balance, if any, of any
Class within a given Series (other than those Classes, if any, specified in the
related Series Supplement), as of any date of determination, shall be equal to
the aggregate initial Certificate Principal Balance thereof less the sum of
(i) all amount allocable to prior distributions made to such Class in respect to
principal of the Underlying Securities, and (ii) any reductions in the
Certificate Principal Balance thereof deemed to have occurred in connection with
allocations of (A) Realized Losses in respect of principal of the Underlying
Securities and (B) expenses of the Trust, if any, only to the extent specified
in the applicable Series Supplement, each as allocated to such Class pursuant to
the applicable Series Supplement.
"Certificate Register" and "Certificate Registrar." As respectively
defined in Section 5.04.
"Certificateholder." Any Holder of a Certificate.
"Certificates." Any trust certificates authorized by, and
authenticated and delivered under, this Trust Agreement.
"Class." With respect to any Series, any one of the classes of
Certificates of such Series, each consisting of Certificates having identical
terms.
"Clearing Agency." An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Closing Date." With respect to any Series, the day on which
Certificates of such Series are first executed, authenticated and delivered.
"Code." The Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder.
"Collection Period." With respect to any Distribution Date for a
Series (or Class within such Series), the period specified in the related Series
Supplement.
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"Commission." The Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution and delivery of this Trust Agreement such Commission is not existing
and performing the duties now assigned to it, then the body then performing such
duties.
"Corporate Trust Office." The principal corporate trust office of the
Trustee located at the address set forth in the related Series Supplement or
such other addresses as the Trustee may designate from time to time by notice to
the Holders and the Depositor, or the principal corporate trust office of any
successor Trustee (or such other addresses as a successor Trustee may designate
from time to time by notice to the Holders and the Depositor).
"Credit Support." With respect to any Series (or any Class within such
Series), a letter of credit, surety bond, swap agreement, put or call option or
other asset intended to support or ensure the timely or ultimate distributions
of amounts due in respect of all or certain of the Underlying Securities for
such Series or Class, which in each case is specified as such in the related
Series Supplement.
"Credit Support Instrument." The instrument or document pursuant to
which the Credit Support for a given Series (or any Class within such Series) is
provided, as specified in the applicable Series Supplement.
"Credit Support Provider." With respect to any Series (or any Class
with such Series), the Person, if any, that will provide any Credit Support with
respect to all or a portion of the Underlying Securities for such Series or
Class as specified in the applicable Series Supplement.
"Cut-off Date." With respect to any Series, the date specified as such
in the related Series Supplement. For purposes of this Trust Agreement, any
Underlying Security acquired by the Depositor after the applicable Cut-off Date
but prior to the applicable Closing Date and included in the related Trust as of
such Closing Date shall be deemed to have been Outstanding as of such Cut-off
Date and references to the principal balance of such Underlying Security as of
such Cut-off Date shall be deemed to be to the principal balance of such
Underlying Security as of the date on which it was acquired by the Depositor.
"Definitive Certificates." As defined in Section 5.10.
"Depository." With respect to the Certificates of any Series (or Class
within such Series) issuable in whole or in part in the form of one or more
Global Securities, the Person designated as Depository by the Depositor pursuant
to Section 5.01 until a successor Depository shall have become such pursuant to
the applicable provisions of this Trust Agreement, and thereafter "Depository"
shall mean or include each Person who is then a Depository hereunder, and if at
any time there is more than one such Person, "Depository" as used with respect
to the Certificates of any such Series or Class shall mean the Depository with
respect to the Certificates of that Series or Class.
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"Depositor." Southpoint Structured Assets, Inc., a Delaware
corporation, and, if a successor Person shall have become the Depositor pursuant
to any applicable provisions of this Trust Agreement, "Depositor" shall mean
such successor Person. With respect to any provisions of this Trust Agreement
that relate to the provisions of the Trust Indenture Act, "Depositor" shall
include any obligor on the Certificates as the term obligor is defined in the
Trust Indenture Act.
"Depositor Order" or "Depositor Request." A written order or request,
respectively, signed in the name of the Depositor by any of its President or
Vice Presidents.
"Depository Agreement." If applicable, the agreement pursuant to which
the Depository will agree to act as Depository with respect to any Series (or
Class within such Series) of Certificates in accordance with Section 5.08.
"Discount Certificate." Any Certificate that is issued with "original
issue discount" within the meaning of Section 1273(a) of the Code and any other
Certificate designated by the Depositor as issued with original issue discount
for United States Federal income tax purposes.
"Distribution Date." With respect to any Series (or Class within such
Series) of Certificates, each date specified as a "Distribution Date" for such
Series (or Class) in the related Series Supplement.
"Dollar" or "$". Such currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Eligible Account." Either (i) an account or accounts maintained with
a Federal or State chartered depository institution or trust company the long
term unsecured debt obligations of which are rated by the Rating Agency the
higher of (x) at least the then current long-term rating of the Certificates or
(y) in one of its two highest long-term rating categories (unless otherwise
specified in the Series Supplement) at the time any amounts are held in deposit
therein or (ii) a trust account(s) maintained as a segregated account(s) and
held by a Federal or State chartered depository institution or trust company in
trust for the benefit of the Certificateholders; provided, however, that such
depository institution or trust company has a long-term rating in one of the
four highest categories by the Rating Agency.
"Eligible Expense." With respect to any Series, as specified in the
related Series Supplement.
"Eligible Investments." With respect to any Series, unless otherwise
specified in the related Series Supplement, any one or more of the following
obligations or securities; provided, however, that the total stated return
specified by the terms of each such obligation or security is at least equal to
the purchase price thereof; and provided, further, that no such instrument may
carry the symbol "R" in its rating:
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(i) direct obligations of, and obligations fully guaranteed by,
the United States, the Federal Home Loan Mortgage Corporation, the Federal
National Mortgage Association, the Federal Farm Credit System or any agency
or instrumentality of the United States the obligations of which are backed
by the full faith and credit of the United States of America; provided,
however, that obligations of, or guaranteed by, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association or the
Federal Farm Credit System shall be Eligible Investments only if, at the
time of investment, it has the rating specified in such Series Supplement
for Eligible Investments;
(ii) demand and time deposits in, certificates of deposit of, or
banker's acceptances issued by any depository institution or trust company
(including the Trustee or any agent of the Trustee acting in their
respective commercial capacities) incorporated under the laws of the United
States or any State and subject to supervision and examination by Federal
and/or State banking authorities so long as the commercial paper and/or the
short-term debt obligations of such depository institution or trust company
(or, in the case of a depository institution which is the principal
subsidiary of a holding company, the commercial paper or other short-term
debt obligations of such holding company) at the time of such investment or
contractual commitment providing for such investment have the rating
specified in such Series Supplement for Eligible Investments; provided,
however, that such rating shall be no lower than the rating on the
Underlying Securities at the time of purchase of the investments;
(iii) repurchase agreements with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States, with an
entity having the credit rating specified in such Series Supplement for
Eligible Investments;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States or any
State that have the rating specified in such Series Supplement for Eligible
Investments at the time of such investment or contractual commitment
providing for such investment; provided, however, that such rating shall be
no lower than the rating on the Underlying Securities; and provided,
further, that securities issued by any particular corporation will not be
Eligible Investments to the extent that investment therein will cause the
then outstanding principal amount of securities issued by such corporation
and held as part of the Trust for such Series to exceed 10% of the
aggregate outstanding principal balances and amounts of all the Underlying
Securities and Eligible Investments held as part of the Trust for such
Series;
(v) commercial paper having at the time of such investment the
rating specified in the Series Supplement for Eligible Investments; and
(vi) a Guaranteed Investment Contract if and only if specified in
the related Series Supplement, provided that the Rating Agency Condition is
met.
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"Event of Default." With respect to any Series (or Class within such
Series) of Certificates, as specified in the related Series Supplement.
"Exchange Act." The Securities Exchange Act of 1934, as amended.
"Extraordinary Trust Expense." Unless otherwise specified in the
related Series Supplement, any and all costs, expenses or liabilities arising
out of the establishment, existence or administration of the Trust, other than
(i) Ordinary Expenses, and (ii) costs and expenses payable by a particular
Certificateholder, the Trustee or the Depositor pursuant to this Trust
Agreement.
"Final Scheduled Distribution Date." With respect to any Certificate,
the date on which all the unpaid principal of (and premium, if any, on) such
Certificate is scheduled, without giving effect to any prepayment or early
termination, to become due and payable as provided therein and in the applicable
Series Supplement.
"Fixed Pass-Through Rate." With respect to any Fixed Rate Certificate,
as defined in the related Series Supplement.
"Fixed Rate Certificate." A Certificate that provides for a payment of
interest at a Fixed Pass-Through Rate.
"Floating Pass-Through Rate." With respect to any Floating Rate
Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate." A Certificate that provides for the
payment of interest at a Floating Pass-Through Rate determined periodically by
reference to a formula specified pursuant to Section 5.01 and the related Series
Supplement.
"Global Security." A Registered Certificate or Bearer Certificate
evidencing all or part of a Series (or Class within such Series) of
Certificates, issued to the Depository for such Series or Class in accordance
with Section 5.08 and bearing the legend prescribed therein.
"Grant." To sell, convey, assign, transfer, create, xxxxx x xxxx upon
and a security interest in and right of set-off against, deposit, set over and
confirm to the Trustee pursuant to these Standard Terms and a related Series
Supplement; and the terms "Granted" and "Granting" have the meanings correlative
to the foregoing. A Grant of any Underlying Securities or of any other
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal,
premium, if any, and interest payments in respect of such Underlying Securities
and all other moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Granting party or otherwise,
and generally to do and receive anything that the Granting party is or may be
entitled to do or receive thereunder or with respect thereto.
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"Guaranteed Investment Contract." With respect to any Series (or Class
within such Series), a guaranteed investment contract or surety bond provided
for in the related Series Supplement, Granted as part of the Trust or to the
Trustee for the benefit of the Certificateholders for such Series, providing for
the investment of funds in a related Account or related Accounts and insuring a
minimum or a fixed rate of return on the investment of such funds, which
contract or surety bond shall be an obligation of an insurance company or other
entity whose rating is no lower than the rating on the Underlying Securities and
shall satisfy any other requirements specified in such Series Supplement.
"Holder." With respect to a Registered Certificate, the Registered
Holder thereof.
"Independent." When used with respect to any specified Person means
that the Person (1) is in fact independent of the Depositor and of any
Affiliate, (2) does not have any direct or indirect material financial interest
in the Depositor or in any Affiliate and (3) is not connected with the Depositor
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
"Initial Accrued Interest." With respect to any Series, shall mean,
with respect to each Underlying Security, the amount of interest which accrued
thereon from the Underlying Security Interest Payment Date of such Underlying
Security next preceding the deposit of such Underlying Security hereunder (or,
in the event that such Underlying Security Interest Payment Date is the first
Underlying Security Interest Payment Date to occur after the original issuance
of such Underlying Security, from the dated date thereof) to, but excluding, the
Closing Date.
"Letter of Credit." With respect to any Series or Class within such
Series, the letter of credit, if any, providing for the payment of all or a
portion of amounts due in respect of such Series or Class, issued to the Trustee
for the benefit of the Holders of such Series or Class, issued by the related
Credit Support Provider, all as specified in the related Series Supplement.
"Limited Guarantor." With respect to the Underlying Securities
relating to any series (or Class within such Series), a Person specified in the
related Series Supplement as providing a guarantee or insurance policy or other
credit enhancement supporting the distributions in respect of such Series (or
Class) as and to the extent specified in such Series Supplement.
"Limited Guaranty." With respect to any Series or Class within such
Series, any guarantee of or insurance policy or other comparable form of credit
enhancement with respect to amounts required to be distributed in respect of
such Series or Class or payments under all or certain of the Underlying
Securities relating to such Series or Class, executed and delivered by a limited
Guarantor in favor of the Trustee, for the benefit of the Certificateholders, as
specified in the related Series Supplement.
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"Liquidation Proceeds." The amounts received by the Trustee in
connection with (i) the liquidation of a defaulted Underlying Security or
collateral, if any, related thereto or (ii) the repurchase, substitution or sale
of a Underlying Security.
["Market Agent." Shall mean the market agent or market agents
appointed pursuant to Section 8.01, and its or their successors or assigns.]
["Market Agent Agreement." With respect to any Series shall mean the
Market Agent Agreement, dated as of the Closing Date, between the Trustee and
the Market Agent, the form of which will be attached to the Series Supplement,
and any similar agreement with a successor Market Agent, in each case as from
time to time amended or supplemented.]
"Moody's." Shall mean Xxxxx'x Investors Service Inc. and any
successors thereto.
"Notional Amount." With respect to any Class of Certificates, if
applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass-Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"Officer's Certificate." A certificate signed by anyone (or, if
specified in these Standard Terms or any Series Supplement, more than one)
Executive Officer of the Depositor, and delivered to the Trustee.
"Opinion of Counsel." A written opinion of counsel, who may, except as
otherwise expressly provided in this Trust Agreement, be counsel for the
Depositor acceptable to the Trustee, except that any opinion of counsel relating
to the qualification of any account required to be maintained pursuant to this
Trust Agreement as an Eligible Account must be an opinion of counsel who is in
fact Independent of the Depositor.
"Ordinary Expenses." The Trustee's customary fee for its services as
Trustee, including but not limited to (i) the costs and expenses of preparing,
sending and receiving all reports, statements, notices, returns, filings,
solicitation of consent or instructions, or other communications required by
this Trust Agreement, (ii) the costs and expenses of holding and making ordinary
collection or payments on the assets of the Trust and of determining and making
distributions, (iii) the costs and expenses of the Trust's or Trustee's counsel,
accountants and other experts for ordinary or routing consultation or advice in
connection with the establishment, administration and termination of the Trust,
and (iv) any other costs and expenses that are, or reasonably should have been,
expected to be incurred in the ordinary course of administration of the Trust.
"Outstanding." With respect to Certificates of a specified Series (or
Class within such Series), as of any date of determination, all such
Certificates theretofore authenticated and delivered under these Standard Terms
and the related Series Supplement except:
(i) Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation; and
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(ii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this Trust
Agreement, unless proof satisfactory to the Trustee is presented that any
such Certificates are held by a bona fide purchaser in whose hands such
Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Depositor, the Trustee, or any Affiliate
thereof shall be disregarded and deemed not to be Outstanding, and the Voting
Rights to which its Holder would otherwise be entitled shall not be taken into
account in determining whether the requisite percentage of aggregate Voting
Rights necessary to effect any such consent or take any such action has been
obtained except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Certificates with respect to which the Depositor has provided
the Trustee an Officer's Certificate stating that such Certificates so owned
shall be so disregarded. Certificates so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not, to the knowledge of the Trustee, the
Depositor, or any Affiliate of any thereof. The principal amount or notional
amount, as applicable, of a Discount Certificate that shall be deemed to be
Outstanding for the definition referred to in the foregoing proviso shall be the
Certificate Principal Balance or Certificate Notional Amount, as applicable,
with respect thereto as of the date of such determination.
"Participant." A broker, dealer, bank, other financial institution or
other Person for whom from time to time a Depository effects book-entry
transfers and pledges of securities deposited with the Depository.
"Pass-Through Rate." With respect to any Series (or Class within such
Series) of Certificates (except certain Discount Certificates and Certificates
entitled to nominal or no interest distributions) the annual rate at which
interest accrues on the Certificates of such Series (or Class), which may be a
fixed rate or a floating rate of interest, determined upon the basis and in the
manner specified in the related Series Supplement.
"Paying Agent." As defined in Section 5.12.
"Percentage Interest." With respect to a Certificate of any Series or
Class within a Series, the portion of such Series or Class evidenced by such
Certificate, expressed as a percentage, equal to the product of (x) a fraction,
the numerator of which is the initial Certificate Principal Balance or Notional
Amount, as applicable, represented by such Certificate and the denominator of
which is the aggregate initial Certificate Principal Balance or Notional Amount,
as applicable, of all the Certificates of such Series or Class and (y) 100.
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"Person." Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Distribution." With respect to any Series (or Class within such
Series) of Certificates, the place or places where the principal of (and
premium, if any) and interest on the Certificates or such Series (or Class) are
distributable as specified pursuant to Section 5.01.
"Predecessor Certificate." With respect to any particular Certificate,
every previous Certificate evidencing all or a portion of the same interest as
that evidenced by such particular Certificate; and for the purpose of this
definition, any Certificate authenticated and delivered under Section 5.05 in
lieu of a lost, destroyed or stolen Certificate shall be deemed to evidence the
same interest as the lost, destroyed or stolen Certificate.
"Prepaid Ordinary Expenses." Unless otherwise specified in the Series
Supplement, the amount (if any) paid by the Depositor to the Trustee on or
before the Closing Date to cover Ordinary Expenses, as specified in the related
Series Supplement.
"Proceeding." Any suit in equity, action at law or other judicial or
administrative proceeding.
"Rating Agency." With respect to any Series (or Class within such Series),
each nationally recognized rating organization specified in the related Series
Supplement that initially rates the Certificates of such Series (or Class).
"Rating Agency Condition." With respect to any action or occurrence,
unless otherwise specified in the applicable Series Supplement, that each Rating
Agency shall have been given 10 days (or such shorter period acceptable to each
Rating Agency) prior notice thereof and that each Rating Agency shall have
notified the Depositor and the Trustee in writing that such action or occurrence
will not result in a reduction or withdrawal of the then current rating of any
Certificate of the applicable Series.
"Realized Losses." With respect to any defaulted and liquidated Underlying
Security, the excess, if any, of (x) the principal amount of such Underlying
Security plus accrued and unpaid interest thereon, plus expenses incurred by the
Trustee in connection with the practices and procedures referred to in
Section 3.07(b) to the extent reimbursable under these Standard Terms and the
related Series Supplement, over (y) Liquidation Proceeds with respect thereto.
"Record Date." With respect to any Distribution Date for any Series (or
Class within such Series) of Registered Certificates, the date specified in the
related Series Supplement.
"Registered Certificate." Any Certificate registered as to principal,
premium, if any, and interest in the Certificate Register.
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"Registered Holder." The Person in whose name a Registered Certificate is
registered in the Certificate Register on the applicable Record Date.
"Required Interest." Unless otherwise specified in the related Series
Supplement, with respect to the Outstanding Certificates of any Series or any
Class thereof, the accrued and undistributed interest on the Certificate
Principal Balance or Notional Amount of such Outstanding Certificates, computed
at the applicable Pass-Through Rate.
"Required Percentage-Amendment." Unless otherwise specified in the related
Series Supplement, if a Rating Agency Condition is specified in the related
Series Supplement and such Rating Agency Condition is met, or, if a Rating
Agency Condition is not so specified in the related Series Supplement, 66-2/3%
of the aggregate Voting Rights of Certificates of such Series, and 100%
otherwise.
"Required Percentage-Definitive Certificates." Unless otherwise specified
in the related Series Supplement, 66-2/3% of the aggregate Voting Rights of
Certificates of such Series.
"Required Percentage-Direction of Trustee." Unless otherwise specified in
the related Series Supplement, 66-2/3% of the aggregate Voting Rights of
Certificates of such Series.
"Required Percentages-Remedies." Unless otherwise specified in the related
Series Supplement, 66-2/3% of the aggregate Voting Rights of Certificates of
such Series.
"Required Percentage-Removal of Trustee." Unless otherwise specified in
the related Series Supplement, more than 50% of the aggregate Voting Rights of
Certificates of such Series.
"Required Percentage-Waiver." Unless otherwise specified in the related
Series Supplement, 75% of the aggregate Voting Rights of Certificates of such
Series.
"Required Premium." If applicable, unless otherwise specified in the
related Series Supplement, with respect to the Certificates of any Series or any
Class thereof, an amount equal to the product, as determined on any Distribution
Date with respect to such Series and Class, of (i) the Required Principal for
such Series and Class and (ii) the Call Premium Percentage for such Series and
Class.
"Required Principal." As determined for any Distribution Date for a given
Series (or Class within such Series), unless otherwise specified in the related
Series Supplement, the amounts on deposit in the Certificate Account allocable
to principal payments on the Underlying Securities (including from Credit
Support, if any, and Advances, if any, but excluding amounts in respect of
principal payments to the extent that Advances with respect thereto were
distributed as Required Principal on a prior Distribution Date) and required to
be distributed in respect of the Certificates of such Series (or Class) in
accordance with the terms of such Certificates and such related Series
Supplement.
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"Required Rating." With respect to any Series (or Class within such
Series), the rating category (or categories) specified in the Series Supplement
that, as a condition to the issuance of such Series or Class, is (or are) the
lowest category (or categories) in which the Certificates of such Series or
Class may be categorized by the Rating Agency.
"Requisite Reserve Amount." As of any date with respect to any Series (or
Class within such Series) of Certificates, the amount, if any, required to be
maintained in the Reserve Account, if any, for such Series or Class as specified
in or determined pursuant to the related Series Supplement.
"Reserve Account." An Eligible Account, if any, created and maintained
pursuant to Section 3.06.
"Responsible Officer." With respect to the Trustee, any officer within the
Corporate Trust Office of the Trustee, including any Vice President, Assistant
Vice President, Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's actual
knowledge of and familiarity with the particular subject.
"Retained Interest." If applicable, with respect to any Underlying
Security, an ownership interest in and a right to a portion of the payments
thereon by the obligor thereof, as specified in the related Series Supplement,
held by the Person so specified in such Series Supplement.
["Sale Procedures." Unless otherwise specified in the Series Supplement,
shall mean that, with respect to any sale of one or more Underlying Securities,
the Market Agent, on behalf of the Trust, shall sell such Underlying Security or
Underlying Securities to the highest bidders among not less than two solicited
bidders for such Underlying Securities (one of which bidders may include Xxxxxx
Xxxxxx & Company, Inc. or any affiliate thereof; provided, however, that neither
Xxxxxx Xxxxxx & Company, Inc. nor any of its affiliates will be under any
obligation to bid, and which bidders need not be limited to recognized broker
dealers).
In the sole judgment of the Market Agent, bids may be evaluated on the
basis of bids for a single Underlying Security, a portion of the Underlying
Securities or all of the Underlying Securities being sold or any other basis
selected in good faith by the Market Agent.]
"S&P." Shall mean Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. and any successor thereof.
"Series." A separate series of Certificates issued pursuant to these
Standard Terms and a related Series Supplement, which series may be divided into
two or more Classes, as provided in such Series Supplement.
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"Series Supplement." An agreement incorporating these Standard Terms that
authorizes the issuance of a particular Series (and each Class within such
Series) of Certificates.
"Sub-Administration Account." As defined in Section 7.02.
"Sub-Administration Agreement." The written contract, if any, between the
Trustee and a Sub-Administrative Agent and any successor Trustee or Sub-
Administrative Agent relating to the administration of certain Underlying
Securities as provided in Section 7.02.
"Sub-Administration Agent." Any Person with which the Trustee has entered
into a Sub-Administration Agreement and which meets the qualifications of a Sub-
Administrative Agent pursuant to Section 7.02.
"Surety Bond." If so specified in the Series Supplement, with respect to
any Series (or Class within such Series) of Certificates, the surety bond
providing for the distribution under certain circumstances specified in such
Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of such
Certificateholders by the related Credit Support Provider, all as specified in
such Series Supplement.
"Swap Agreement." If so specified in the Series Supplement, with respect
to any Series, shall mean the ISDA Master Agreement dated as of the Closing Date
by and between the Trust and the Swap Counterparty, as the same may be amended
or supplemented from time to time as provided herein and therein.
"Swap Counterparty." If so specified in the Series Supplement, with
respect to any Series, shall be specified in the Series Supplement.
"Swap Distribution Amount." If so specified in the Series Supplement, with
respect to any Series, shall mean all amounts then due and owing to the Swap
Counterparty pursuant to the Swap Agreement, other than Swap Termination
Payments.
"Swap Guarantee." If so specified in the Series Supplement, with respect
to any Series, shall mean, the Guarantee issued by the Swap Guarantor in favor
of the Trust.
"Swap Guarantor." If so specified in the Series Supplement, with respect
to any Series, shall be specified in the Series Supplement.
"Swap Receipt Amount." If so specified in the Series Supplement, with
respect to any Series, shall mean all amounts due and owing to the Trust
pursuant to the Swap Agreement, other than Swap Termination Payments.
"Swap Termination Payment." If so specified in the Series Supplement, with
respect to any Series, means the amount payable by the Swap Counterparty to the
Trust, or by the Trust to the Swap Counterparty, pursuant to Section 6(e) of the
Swap Agreement.
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"Trust." With respect to any Series, the segregated asset or pool of
assets subject hereto, constituting the trust created hereby and by the related
Series Supplement and to be administered hereunder and thereunder, consisting of
those Underlying Securities and the Credit Support, if applicable, and all sums
distributed in respect thereof that are specified as being part of the Trust for
such Series in the related Series Supplement, all for the benefit of the
Certificateholders of such Series as of any particular time.
"Trust Agreement." With respect to each Series of Certificates, these
Standard Terms and all amendments hereof and, unless the context otherwise
requires, the related Series Supplement and all amendments thereto.
"Trustee" With respect to any Series, the Person so specified in the
applicable Series Supplement, until a successor Person shall have become the
Trustee pursuant to the applicable provisions of these Standard Terms and the
applicable Series Supplement, and thereafter "Trustee" shall mean such successor
Person.
"Trust Indenture Act." The Trust Indenture Act of 1939, as amended, as the
same is in force and effect as of the date hereof.
"Underlying Securities Issuer." Shall mean, with respect to an Underlying
Security, the issuer thereof (including, if applicable, the guarantor of the
Underlying Security) as identified in Appendix A to the Series Supplement.
"Underlying Security" or "Underlying Securities." With respect to any
Series, the asset or assets Granted as part of the Trust for such Series or
acquired (or, in the case of an agreement, entered into) by the Trustee for the
benefit of the Holders of such Series, and, if and to the extent provided in the
applicable Series Supplement, for the benefit of any Credit Support Provider,
all as identified in the Schedule A to the related Series Supplement. The
Underlying Securities for any such Series or the related Trust shall not
constitute Underlying Securities for any other Series or any other Trust.
"Underlying Security Interest Payment Date." Shall mean, with respect to
an Underlying Security, each date specified in Schedule A to the Series
Supplement as a date on which interest is scheduled, as of the Closing Date, to
be payable by or on behalf of the Underlying Securities Issuer on such
Underlying Security in accordance with its terms.
"Uniform Commercial Code." The Uniform Commercial Code as in effect in the
relevant jurisdiction or, with respect to the State of Louisiana, the equivalent
body of statutory and common law.
"United States." The United States of America (including the States), its
territories, its possessions and other areas subject to its jurisdiction.
"Voting Rights." With respect to any Series (or Class within such Series)
of Certificates, the portion of the aggregate voting rights of the Certificates
of such Series or
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Class which shall be allocated to any Certificate as specified in the applicable
Series Supplement.
Section 1.02. Rules of Construction
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect in the United States from time to time;
(iii) or is not exclusive;
(iv) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision:
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
Section 1.03. Compliance Certificates and Opinions; Record Date. (a) Upon
any application or request by the Depositor to the Trustee to take any action
under any provision of this Trust Agreement other than the initial issuance of
the Certificates, the Depositor shall furnish to the Trustee an Officer's
Certificate stating that, in the opinion of the signer thereof, all conditions
precedent, if any, provided for in this Trust Agreement relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Trust Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for this Trust Agreement (other than a certificate provided
pursuant to Section 3.10(d)) shall include:
(1) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable him or
her to express an
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informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
(b) The Depositor may at its option by delivery of an Officer's Certificate
to the Trustee set a record date to determine the Holders of any subclass of
Certificates entitled to give any consent, request, demand, authorization,
direction, notice, waiver or other act. Notwithstanding Section 316(c) of the
Trust Indenture Act, such record date shall be the record date specified in such
Officer's Certificate, which shall be a date not more than 30 days prior to the
first solicitation of Certificateholders in connection therewith. If such a
record date is fixed, such consent, request, demand, authorization, direction,
notice, waiver or other act may be given before or after such record date, but
only the Holders of record of Certificates of the applicable subclass at the
close of business on such record date shall be deemed to be Certificateholders
of such subclass for the purposes of determining whether Holders of the
requisite aggregate amount of Outstanding Certificates of such subclass have
authorized or agreed or consented to such consent, request, demand,
authorization, direction, notice, waiver or other act, and for that purpose the
aggregate amount of the Outstanding Certificates of such subclass shall be
computed as of such record date; provided, however, that no such consent,
request, demand, authorization, direction, notice, waiver or other act by the
Holders of Certificates of such subclass on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Trust Agreement not later than one year after the record date.
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES; PURPOSE AND
CLASSIFICATION OF TRUSTS
Section 2.01. Creation and Declaration of Trusts: Assignment of Underlying
Securities. (a) The Depositor, concurrently with the execution and delivery
hereof, does hereby agree to Grant to the Trustee, on behalf and for the benefit
of the Certificateholders of each given Series of Certificates and without
recourse, all the right, title and interest of the Depositor, including any
security interest therein for the benefit of the Depositor, in, to and under
the Underlying Securities attributable to each such Series (except for the
Underlying Securities attributable to such Series which are not Granted by the
Depositor, as specified in Schedule A to the applicable Series Supplement), now
existing or hereafter acquired, in each case as identified on the applicable
Schedule A, and all other assets included or to be included in the respective
Trust for the benefit of the Certificateholders of each such Series. Each such
Grant will include all interest, premium (if any) and principal received by or
on behalf of the Depositor of, on or with respect to any such Underlying
Securities due after the applicable Cut-off Date, and, unless otherwise
specified in the Series Supplement, will exclude (i) all interest, premium (if
any) and principal of, on or with
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respect to any such Underlying Securities due on or before the applicable Cut-
off Date and (ii) any Retained Interest in any such Underlying Security.
(b) In connection with each Grant referred to in the preceding paragraph,
the Depositor shall, not later than the applicable Closing Date, either
(i) deposit the Underlying Securities for a given Series (except for the
Underlying Securities attributable to such Series which are to be acquired from
a Person other than the Depositor, as specified on the Underlying Securities
Schedule to the applicable Series Supplement) with the Trustee by physical
delivery of such Underlying Securities, duly endorsed, to the Trustee or
(ii) have delivered such Underlying Securities to a Clearing Agency, in which
event (A) the Trustee has accepted delivery of such Underlying Securities
through such Clearing Agency, and (B) the Underlying Securities have been
credited to a trust account of the Trustee, or its authorized agent, and the
Trustee shall have the right to hold and maintain such Underlying Securities on
deposit with such Clearing Agency for all purposes of this Trust Agreement.
(c) Unless otherwise specified in the applicable Series Supplement, the
Grant of such Underlying Securities by the Depositor for a given Series
accomplished hereby and by such Series Supplement is absolute and is intended by
the parties hereto as a sale.
(d) In the case of each delivery of Underlying Securities to the Trustee,
the Depositor shall be deemed thereby to represent and warrant to the Trustee
that:
(i) the Depositor is duly authorized to so deliver such Underlying
Securities;
(ii) the Underlying Securities so delivered are genuine;
(iii) at the time of delivery of the Underlying Securities, such
Underlying Securities are free and clear of any lien, pledge, encumbrance,
right, charge, claim or other security interest; and
(iv) such delivery is irrevocable and free of any continuing claim
by the Depositor except such as the Depositor may have as a
Certificateholder of a Certificate;
The above representations and warranties shall survive the delivery of such
Underlying Securities and the Certificates in respect thereof. The Depositor
shall further be deemed by such delivery to have made the representations that,
to the best of its knowledge, as of the Closing Date, no default or event of
default with respect to the Underlying Securities has occurred and is
continuing.
(e) It is the intention of all of the parties hereto that the transfer of
the Trust Property hereunder and under any Series Supplement shall constitute a
sale and the Trust created hereunder and thereunder shall constitute a fixed
investment trust for federal income tax purposes under Treasury Regulation
Section 301.7701-4, and all parties hereto and thereto agree to treat the Trust,
any distributions therefrom and the beneficial interest in the
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Certificates consistently with such characterization. The provisions of this
Trust Agreement shall be interpreted consistently with such characterization.
(f) Any Trust created hereunder shall not engage in any business or
activities other than in connection with, or relating to, the holding,
protecting and preserving of the Trust Property and the issuance of the
Certificates, and other than those required or authorized by this Trust
Agreement or incidental to and necessary to accomplish such activities. Any
Trust created hereunder shall not issue or sell any certificates or other
obligations other than the Certificates or otherwise incur, assume or guarantee
any indebtedness for money borrowed.
Section 2.02. Acceptance by Trustee. With respect to each Series, the
Trustee will acknowledge receipt by it, or by a custodian on its behalf, of the
related Underlying Securities and the related documents referred to in Section
2.01, now existing or hereafter acquired, and declares that it will hold such
Underlying Securities and documents and all other documents delivered to it
pursuant to this Trust Agreement, and that it will hold all such assets and
such other assets (including Underlying Securities acquired from a Person other
than the Depositor) comprising the Trust for a given Series of Certificates, in
trust for the exclusive use and benefit of all present and future
Certificateholders of such Series and for the purposes and subject to the terms
and conditions set forth in this Trust Agreement.
Section 2.03. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein or in the applicable
Series Supplement:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) with respect to each Series Supplement, to the Depositor's
knowledge, the information set forth in the Series Supplement with respect
to each Underlying Security is true and correct in all material respects at
the date or dates, respecting which, such information is furnished;
(iii) the execution and delivery of this Trust Agreement by the
Depositor and its performance of and compliance with the terms of this
Trust Agreement will not violate the Depositor's articles of incorporation
or By-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach or acceleration of, any material contract, agreement or other
instrument to which the Depositor is a party or which may be applicable to
the Depositor or any of its assets;
(iv) the Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Trust Agreement, has
duly authorized the execution, delivery and performance of this Trust
Agreement and has duly executed and delivered this Trust Agreement. This
Trust Agreement, upon its execution and delivery by the Depositor and
assuming due authorization, execution and delivery by the Trustee, will
constitute a valid, legal and binding obligation of the
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Depositor, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, and by general equity
principles (regardless of whether such enforcement is considered a
proceeding in equity or at law); and
(v) any additional representations and warranties, if any, that may
be specified in the applicable Series Supplement.
It is understood and agreed that the representations and warranties of the
Depositor set forth in this Section 2.03 shall survive delivery of the
respective documents to the Trustee and shall inure to the benefit of the
Trustee on behalf of the Certificateholders notwithstanding any restrictive or
qualified endorsement or assignment. Upon discovery by any of the Depositor or
the Trustee of a breach of any of the foregoing representations and warranties
which materially and adversely affects the interests of the Certificateholders,
the party discovering such breach shall give prompt written notice thereof to
the other party.
Section 2.04. Breach of Representation, Warranty or Covenant. Within 90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of a breach of any representation or warranty of the Depositor set
forth in Section 2.03 that materially and adversely affects the interests of the
Certificateholders of a given Series of Certificates, the Depositor shall cure
such breach in all material respects.
Section 2.05. Agreement to Authenticate and Deliver Certificates. With
respect to each Series of Certificates and the related Trust, the Trustee
hereby agrees and acknowledges that it will, concurrently with the Grant to and
receipt by it of the related Underlying Securities and delivery to it by the
Depositor of executed Certificates of such Series, cause to be authenticated and
delivered to or upon the written order of the Depositor, in exchange for the
Underlying Securities and such other assets constituting the Trust for a given
Series, Certificates duly authenticated by or on behalf of the Trustee in
authorized denominations evidencing ownership of the entire Trust for such
Series, all in accordance with the terms and subject to the conditions of
Sections 5.02 and 5.11.
ARTICLE III
ADMINISTRATION OF EACH TRUST
Section 3.01. Administration of each Trust. (a) The Trustee shall
administer the Underlying Securities for each given Trust for the benefit of the
Certificateholders of the related Series. In engaging in such activities, the
Trustee shall follow or cause to be followed collection procedures in
accordance with the terms of these Standard Terms and the applicable Series
Supplement, the respective Underlying Securities and any applicable Credit
Support Instruments. With respect to each Trust, and subject only to the above-
described standards and the terms of these Standard Terms, the related Series
Supplement and the respective Underlying Securities and applicable Credit
Support Instruments, if any,
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the Trustee shall have full power and authority, acting alone or through Sub-
Administrative Agents as provided in Section 7.02, to do or cause to be done any
and all things in connection with such administration which it deems necessary
to comply with the terms of these Standard Terms and the applicable Series
Supplement.
(b) The duties of the Trustee shall be performed in accordance with
applicable local, State and Federal law, and the Trustee shall make any and all
filings, reports, notices or applications with, and seek any comments and
authorizations from, the Commission and any State securities authority on behalf
of the Trust for each Series.
Section 3.02. Collection of Certain Underlying Security Payments. With
respect to any Series or Class of Certificates, the Trustee shall make
reasonable efforts to collect all payments required to be made pursuant to the
terms of the Underlying Securities in a manner consistent with the terms of this
Trust Agreement, such Underlying Securities and any related Credit Support
Instruments.
Section 3.03. Certificate Account. (a) For each Series of Certificates,
the Trustee shall establish and maintain one or more Eligible Accounts
(collectively, the "Certificate Account"), held in trust for the benefit of the
Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Certificate Account and in all proceeds
thereof. With respect to each Series of Certificates, the Certificate Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Certificateholders. With respect to each Series of Certificates,
not later than the close of business on the Business Day on which the Trustee
receives such amounts in the form of immediately available funds (so long as
such funds are received by the Trustee by 3:00 p.m. New York City time, and on
the next Business Day otherwise), the Trustee shall deposit or cause to be
deposited in the Certificate Account all amounts received by it with respect to
the Underlying Securities, any Credit Support and all Liquidation Proceeds
related to such Series including:
(i) all payments on account of principal of such Underlying
Securities;
(ii) all payments on account of interest on such Underlying
Securities;
(iii) all payments on account of premium (if any) on such
Underlying Securities;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section 4.03; and
(vi) any interest or investment income earned on funds deposited in
the related Accounts.
Unless otherwise specified in the applicable Series Supplement, it is
understood and agreed that payments in the nature of prepayment or redemption
penalties, late payment
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charges, default interest or reinvestment income which may be received by the
Trustee shall be deposited by the Trustee in the Certificate Account and shall
not be retained by the Trustee for its own account.
If, at any time, the Certificate Account for any Series ceases to be an
Eligible Account, the Trustee shall within 5 Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Rating Agency Condition
is met) establish a new Certificate Account meeting the conditions specified
above and the Trustee shall within 5 Business Days transfer any cash and any
investments on deposit in the Certificate Account to such new Certificate
Account, and from the date such new Certificate Account is established, it shall
be the Certificate Account for such Series.
(b) The Trustee shall give notice to the Depositor and the Rating
Agency of the location of each Eligible Account constituting the Certificate
Account and prior to any change thereof.
Section 3.04. Liquidation of the Underlying Securities. If specified in the
applicable Series Supplement, upon the occurrences of specified events, the
Trustee shall direct the Market Agent to sell the Underlying Securities in
compliance with the Sale Procedures and to deposit the Liquidation Proceeds
therefrom into the Certificate Account pursuant to Section 3.03.(a) hereof.
Section 3.05. Investment of Funds in the Accounts. The Trustee on behalf
of the Trust, may direct any depository institution maintaining the Certificate
Account or the Reserve Account, if any, for the applicable Series and any other
segregated Eligible Account the contents of which are held for the benefit of
Certificateholders of such Series (each, an "Account") to invest the funds
therein at the specific written direction of the Depositor in one or more
Eligible Investments bearing interest or sold at a discount, which shall be held
to maturity unless payable on demand and which funds shall not be reinvested
upon the maturity or demand for payment of such Eligible Investment. If the
Depositor does not provide any investment directions, funds held in any Account
will be invested in the Eligible Investments specified in clause (ii) of the
definition thereof. Investments of such funds shall be invested in Eligible
Investments that will mature so that such funds will be available for
distribution on the next Distribution Date. Except as otherwise provided in the
applicable Series Supplement, any earnings with respect to such Eligible
Investments shall be paid to the Certificateholders (and, if applicable, the
Retained Interest holder) pro rata in proportion to their interest in the
invested funds. In the event amounts on deposit in an Account are at any time
invested in an Eligible Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Eligible
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
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(y) demand same day payment of all amounts due thereunder upon a
determination by the Trustee that such Eligible Investment would not
constitute an Eligible Investment in respect at funds thereafter on deposit
in any Account.
Section 3.06. Maintenance of Credit Support. (a) On the applicable Closing
Date, the Trustee at the written direction of the Depositor or, if so specified
in the applicable Series Supplement, the Depositor shall, to the extent
specified in the applicable Series Supplement, establish and maintain, or enter
into, as applicable, in the name of the Trustee, either as a part of the related
Trust or outside it, for the benefit of the Certificateholders of the related
Series, the Credit Support specified in the applicable Series Supplement. To the
extent specified in the applicable Series Supplement, the Depositor will make or
cause to be made any initial deposit to the Certificate Account or any Reserve
Account for the related Series as of the Closing Date. Unless the Series
Supplement for a given Series provides otherwise, if a Reserve Account exists
for such Series, collections with respect to the Underlying Securities for such
Series not distributed to the Certificateholders of such Series shall be
deposited in the Reserve Account. The Reserve Account, if any, shall be an asset
of the Depositor (and the income earned on any amounts held in the Reserve
Account shall be allocable to the Depositor, who agrees to include any such
income in its gross income for all federal, state and local income and franchise
tax purposes) and will not be a part of or otherwise be includible in the Trust
but will be held for the benefit of the Certificateholders.
(b) Amounts on deposit in the Reserve Account and amounts available
pursuant to any other Credit Support for such Series shall be applied by the
Trustee to make distributions of principal of and premium (if any) and interest
on the Certificates of such Series as required pursuant to Section 4.01 and the
applicable Series Supplement to the extent that funds are not otherwise
available for such purpose. If specified in such Series Supplement, immediately
after each Distribution Date, amounts on deposit in the Reserve Account for such
Series in excess of a specified amount shall be paid to the Person so specified
in such Series Supplement.
Section 3.07. Realization Upon Defaulted Underlying Securities.
(a) The Trustee, on behalf of the Certificateholders, shall assert claims under
each applicable Credit Support Instrument, and shall take such reasonable steps
as are necessary to receive payment or to permit recovery thereunder with
respect to any defaulted Underlying Securities, subject in all cases to the
provisions of Article VII hereof.
(b) Unless otherwise provided in the related Series Supplement, if
the Trustee, as applicable, is unable to obtain full recovery in respect of a
defaulted Underlying Security and any related Credit Support Instrument pursuant
to Section 3.07(a), the Trustee shall follow or cause to be followed such normal
practices and procedures as it deems necessary or advisable to realize upon such
defaulted Underlying Security and such Credit Support Instrument, subject in all
cases to the provisions of Article VII hereof.
(c) If the Liquidation Proceeds of a defaulted Underlying Security
are less than the sum of (i) the outstanding principal balance of the defaulted
Underlying Security, (ii) interest accrued but unpaid thereon at the applicable
interest rate and (iii) the aggregate
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amount of expenses incurred by the Trustee in connection with the practices and
procedures referred to in paragraph (b) of this Section 3.07 to the extent
reimbursable under these Standard Terms and the related Series Supplement, the
Trust for the applicable Series shall recognize a Realized Loss equal to the
amount of such difference. Any such reimbursed Realized Loss shall be allocated
pursuant to Section 4.05 among the Certificateholders of such Series in the
manner and priority set forth in the related Series Supplement.
Section 3.08. Retained Interest. The Retained Interest, if any, in any
Underlying Security shall initially be held by the Person so specified in the
related Series Supplement as and to the extent specified therein. With respect
to each Underlying Security, unless otherwise specified in the related Series
Supplement, the Retained Interest shall be deducted by the Trusted from
applicable collections in respect of such Underlying Security. Unless otherwise
provided in the applicable Series Supplement, collections in respect of Retained
Interest shall not be deposited in the Certificate Account for the applicable
Series and shall not constitute a part of the Trust for such Series, but shall
instead be distributed to the holder of such Retained Interest; provided,
however, that the Series Supplement for any Series with respect to which there
is a Retained Interest may provide that, notwithstanding the terms contained
herein, commingled amounts received in respect of assets inclusive of Underlying
Securities and Retained Interest may initially be deposited in a separate and
discrete account established by the Trustee and such Series Supplement may
provide for additional terms relating thereto. Unless otherwise provided in the
applicable Series Supplement, after deduction of all applicable fees as provided
for in this Trust Agreement, on each Distribution Date the Trustee shall
allocate on a pari passu basis any partial recovery on an Underlying Security
between (a) the Retained Interest, if any, and (b) distributions to
Certificateholders of the applicable Series.
Section 3.09. Access to Certain Documentation. The Trustee shall provide
to any Federal, State or local regulatory authority that may exercise authority
over any Certificateholder access to the documentation regarding the Underlying
Securities required by applicable laws and regulations. Such access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the offices of the Trustee designated by it. In addition,
access to the documentation regarding the Underlying Securities related to a
given Series (or Class within such Series) will be provided to any
Certificateholder of such Series (or Class) upon reasonable request during
normal business hours at the offices of the Trustee designated by it at the
expense of the Certificateholder requesting such access.
Section 3.10. Reports by the Depositor. The Depositor shall:
(a) file with the Trustee, within 30 days after the Depositor is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Depositor is required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Depositor is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee
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and the Commission, in accordance with rules and regulations prescribed by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance by the
Depositor with the conditions and covenants provided for in this Trust
Agreement, as may be required by such rules and regulations, certificates
or opinions of independent accountants, conforming to the requirements of
Section 314(e) of the Trust Indenture Act;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed by
the Depositor pursuant to subsections (a) and (b) of this Section 3.10 as
may be required by rules and regulations prescribed by the Commission; and
(d) furnish to the Trustee, not less often than annually, a
certificate from the principal executive, financial or accounting officer
of the Depositor as to his or her knowledge of the Depositor's compliance
with all conditions and covenants under this Trust Agreement. For purposes
of this paragraph (d) such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this Trust
Agreement.
Any reports, statements, documents or other information required to be
furnished by the Depositor to the Trustee pursuant to these Standard Terms or
any Series Supplement shall be deemed to have been delivered to the Trustee if
the Trustee is in possession of such reports, statements, documents or other
information at the time they are to be furnished pursuant to these Standard
Terms or any Series Supplement.
Section 3.11. Charges and Expenses. Except as otherwise provided in this
Trust Agreement or the related Series Supplement, no amounts in the nature of
fees or charges shall be payable by or withheld from the Trust, the Depositor or
any other person. There shall be no recourse or claim against the Trust or the
property of the Trust for all or any part of any fees or charges payable to any
person.
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions. (a) On each Distribution Date for a given
Series of Certificates, the Trustees shall apply Available Funds in the
Certificate Account for such Series in the manner and priority set forth in the
Series Supplement for such Series. In any event, however, any amounts collected
during any period shall be distributed to the
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Certificateholders no later than the Distribution Date immediately following the
receipt thereof.
(b) All distributions on the Certificates shall be payable only from
Available Funds, and no provision of this Trust Agreement shall be deemed to
create any obligation on the part of the Trustee or the Depositor to make any
distribution from any other source.
Section 4.02. Distributions on Certificates. (a) Distributions on any
Registered Certificate that are payable and are punctually paid or duly provided
for on any Distribution Date shall be distributed to the Person in whose name
such Registered Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the related Record Date notwithstanding
the cancellation of such Registered Certificate upon any transfer or exchange
subsequent to such related Record Date.
The distribution of interest and principal on Registered Certificates shall
be made:
(i) if the Certificateholder is a Depository, to the Depository,
which shall credit the relevant participant's account at such Depository in
accordance with the policies and procedure of the Depository, or
(ii) if the Certificateholder is not a Depository, at the Corporate
Trust Office (except as otherwise specified pursuant to Section 5.01) or,
at that option of the Trustee, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Certificate Register
or, if provided pursuant to Section 5.01 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered
Holder by wire transfer to an account designated by the Registered Holder.
Notwithstanding the foregoing paragraph, with respect to a
Certificateholder of Certificates not held in a Depository and having at
least the Minimum Wire Denomination, such payment shall be made by wire
transfer of immediately available funds to the account designated by such
Certificateholder in a written request received by the Trustee not later
than 10 days prior to such Distribution Date; provided, however, that if a
wire transfer cannot be made for any reason, payment shall be made by
check. The Trustee shall not be required to send federal funds wires until
any corresponding payments which were not same day funds when received by
it have become same day funds.
(b) Subject to the foregoing provisions of this Section 4.02, each
Certificate delivered under this Trust Agreement upon transfer of or in exchange
for or in lieu of any other Certificate shall carry the rights to interest
accrued and undistributed, and to accrue, that were carried by such other
Certificate.
(c) All computations of interest due with respect to any Certificate of
any Series or Class within such Series shall be made as specified in the Series
Supplement applicable to that particular Series or Class of Certificates.
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(d) With respect to any computations or calculations to be made under
these Standard Terms, the applicable Series Supplement and the Certificates,
except as otherwise provided, (i) all percentages resulting from any calculation
of accrued interest will be rounded, if necessary, to the nearest 1/100,000 of
1% (.0000001), with five one-millionths of a percentage point rounded upward,
and (ii) all currency amounts will be rounded to the nearest one-hundredth of a
unit (with .005 of a unit being rounded upward).
(e) Unless specified otherwise in a Series Supplement, the final
distribution of principal and/or premium shall be made upon presentation and
surrender of such Certificates at the Corporate Trust Office.
Section 4.03. Reports to Certificateholders. Unless otherwise specified
in the application Series Supplement, on the next Business Day following each
such Distribution Date the Trustee shall forward or cause to be forwarded to the
Depositor, each Certificateholder of such Series, to each Rating Agency rating
such Series and such other Persons as may be specified in such Series
Supplement, a statement setting forth:
(i) the amounts received by the Trustee as of the last such
statement in respect of principal, interest and premium on the Underlying
Securities and the Swap Receipt Amount, if any;
(ii) the Swap Distribution Amount, if any, for such date;
(iii) the amount of the distribution on such Distribution Date to
Certificateholders of each Class of such Series allocable to principal of
and premium, if any, and interest on the Certificates of each such Class;
and the amount of aggregate unpaid interest accrued as of such Distribution
Date;
(iv) in the case of each Class of Floating Rate Certificates of such
Series, the respective Floating Pass-Through Rate applicable to each such
Class on such Distribution Date, as calculated in accordance with the
method specified in such Certificates and the related Series Supplement;
(v) such other customary information as the Trustee deems necessary
or desirable, (or that any such Certificateholder reasonably requests,) to
enable such Certificateholders to prepare their tax returns;
(vi) if the Series Supplement provides for Advances, the aggregate
amount of Advances, if any, included in such distribution, and the
aggregate amount of unreimbursed Advances, if any, at the close of business
on such Distribution Date;
(vii) the aggregate stated principal amount and, if applicable,
notional amount of the Underlying Securities related to such Series, the
current rating assigned by the Rating Agency thereon and the current
interest rate or rates thereon at the close of business on such
Distribution Date;
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(viii) the aggregate Certificate Principal Balance (or Notional
Amount, if applicable) of each Class of such series at the close of
business on such Distribution Date, separately identifying any reduction in
such aggregate Certificate Principal Balance (or Notional Amount) due to
the allocation of any Realized Losses on such Distribution Date or
otherwise;
(ix) as to any Series (or any Class within such Series) for which
Credit Support has been obtained, the amount or notional amount of coverage
of each element of Credit Support (and rating, if any, thereof) included
therein as of the close of business on such Distribution Date.
In the case of information furnished pursuant to subclauses (iii) and (v)
above, the amounts shall be expressed as a dollar amount per minimum
denomination of Certificates or for such other specified portion thereof. Within
a reasonable period of time after the end of each calendar year, the Trustee
shall furnish to each Person who at any time during each such calendar year was
a Certificateholder a statement containing the information set forth in
subclauses (iii) and (v) above, aggregated for such calendar year or the
applicable portion thereof during which such person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as are from time to time in
effect. The Trustee shall supply to Certificateholders who so request all
materials received by the Trustee from the Underlying Securities Issuer.
Section 4.04. Advances. (a) Unless otherwise specified in the applicable
Series Supplement, the Trustee shall have no obligation to make Advances (as
defined below) with respect to the Underlying Securities or in favor of the
Holders of any Series (or Class within such Series) of Certificates.
(b) However, as and to the extent provided in the Series Supplement for a
given Series, and subject to the terms of paragraphs (b) and (c) of this
Section 4.04, on or prior to each Distribution Date, the Trustee shall advance
or cause to be advanced in immediately available funds for deposit in the
Certificate Account for such Series an advance (each, an "Advance") in an amount
equal, unless otherwise specified in the related Series Supplement, to the
aggregate of distributions of principal, premium (if any) and interest due on
the Underlying Securities for such Series (or Class) during the related
Collection Period, to the extent remaining unpaid at the time of such Advance.
In satisfaction of its obligation to make such Advances, the Trustee shall make
such Advances from its own funds. The Trustee may recover Advances from late
collections received by the Trustee on the applicable Underlying Securities,
proceeds from any applicable Credit Support, if any, and Liquidation Proceeds
with respect to the Underlying Securities for such Series or Class, as specified
in the related Series Supplement, as to which any such unreimbursed Advance was
made.
(c) Notwithstanding any provision herein to the contrary, no Advance
shall be required to be made hereunder if the Trustee reasonably believes that
it will be unable to recover such Advance from related late collections, Credit
Support proceeds, if any, or
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Liquidation Proceeds with respect to the applicable Underlying Securities. It is
further understood and agreed that the Trustee shall not be obligated to make
any Advances in respect of reductions in the amount of collections on the
Underlying Securities due to bankruptcy proceedings with respect to the
Underlying Securities or the obligors thereof.
(d) Notwithstanding any provision herein to the contrary, unless otherwise
provided in the Series Supplement for a given Series, any Advances made in
respect of any Underlying Securities related to such Series (or Class within
such Series) that are subsequently deemed by the Trustee to be nonrecoverable
from related late collections, Credit Support proceeds, if any, or Liquidation
Proceeds may be reimbursed to the Trustee through the application of amounts on
deposit in the Certificate Amount for such series allocable to any of such
Underlying Securities prior to the distributions of interest, premium (if any)
and principal with respect to the Certificates of such Series or Class.
Section 4.05. Allocation of Realized Losses and Trust Expenses. With
respect to any Series of Certificates, the manner and priority of the allocation
of Realized Losses, Eligible Expenses, Allowable Expense Amounts and
Extraordinary Trust Expenses, if any, on any Distribution Date among the
Classes, if any, of such Series shall be as set forth in the related Series
Supplement.
Section 4.06. Compliance with Withholding Requirements. (a)
Notwithstanding any other provision of this Trust Agreement to the contrary, the
Trustee shall comply with all Federal withholding requirements respecting
distributions to Certificateholders of interest or original issue discount that
the Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding.
(b) Each Certificateholder will provide the Trustee (and, so long as the
Certificates are held at a Depository in the form of Global Certificates, each
Beneficial Owner of the Certificates will provide such Depository and the
Trustee) with evidence that there should not be any withholding tax assessed for
Federal income tax purposes in respect of distributions to such
Certificateholder, such evidence to take the form of a statement, on a duly
executed and up-to-date Internal Revenue Service Form W-8 (or successor form),
Form W-9 (or successor Form), or Form 4224 (or successor form), as applicable,
that identifies the Beneficial Owner of the Certificate; provided, however, that
for so long as the Certificates are held at a Depository in the form of Global
Certificates, the Certificateholder shall have no obligation to provide the
Trustee with any such evidence except to the extent it has received such
evidence from Beneficial Owners of the Certificates. The Trustee shall not be
required to accept any such Internal Revenue Service forms if it believes that
they are not accurate (but the Trustee shall not be required to make any
independent investigation to determine their accuracy).
(c) If any tax or other governmental charge shall become payable by or on
behalf of the Trustee, including any tax or governmental charge required to be
withheld from any payment by the Trustee under the provisions of any applicable
law or regulation with respect to any Underlying Securities or the Certificates,
such tax or governmental charge shall be payable by the Certificateholder and
may be withheld by the Trustee. The consent
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of Certificateholder shall not be required for such withholding. In the event
the Trustee does withhold any amount from interest or original issue discount
distributions or Advances thereof to any Certificateholder pursuant to Federal
withholding requirements, the Trustee shall indicate in the statement required
pursuant to Section 4.03 the amount so withheld.
(d) The Depositor and the Trustee shall have the right to refuse the
surrender, registration of transfer or exchange of any Certificate with respect
to which such tax or other governmental charge shall be payable until such
payment shall have been made by the Certificateholder.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates. (a) The Certificates of any Series (or
Class within such Series) shall be issued in fully registered form as Registered
Certificates and shall be substantially in the form of the exhibits with respect
thereto attached to the applicable Series Supplement.
The Certificates may be issued in one or more Series, each of which series
may, subject to the provisions of the Code and the intended status of each
Series Trust to constitute a fixed investment trust for federal income tax
purposes, be issued in one or more Classes, with such further particular
designation added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Depositor may determine.
Each Certificate shall bear upon its face the designation so selected for the
Series and Class to which it belongs. All Certificates of the same Series and
Class shall be identical in all respects except for the denominations thereof.
All Certificates of all Classes within any one Series at any time Outstanding
shall be identical except for differences among the Certificates of the
different Classes within such Series specified in the applicable Series
Supplement. Except as otherwise provided in a Series Supplement, all
Certificates of a particular Series (and all Classes within such Series) issued
under this Trust Agreement shall be in all respects equally and ratably entitled
to the benefits hereof without preference, priority or distinction on account of
the actual time or times of authentication and delivery, all in accordance with
the terms and provisions of this Trust Agreement.
(b) Each Series (and all Classes within such Series) of Certificates shall
be created by a Series Supplement authorized by the Depositor and establishing
the terms and provisions of such Series. The several Series may, subject to the
provisions of the Code and the intended status of each Series Trust to
constitute a fixed investment trust for federal income tax purposes, differ as
between Series and any given Class may vary as between the other Classes within
any given Series.
Section 5.02. Execution, Authentication and Delivery. (a) The
Certificates shall be executed by the Depositor by its President, its Treasurer,
or one of its Vice Presidents, under its corporate seal, which may be in
facsimile form and imprinted or otherwise
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reproduced thereon and shall be attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may be manual or
facsimile. Certificates bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Depositor shall be
binding, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
(b) Each Certificate shall be dated as of the later of the date specified
in the related Series Supplement and the date of its authentication.
(c) No Certificate appertaining thereto shall be entitled to any benefit
under this Trust Agreement or be valid or obligatory for any purpose, unless
there appears on such Certificate a certificate of authentication substantially
in one of the forms provided for herein executed by the Trustee by the manual
signature of one of its authorized signatories, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Trust Agreement.
Section 5.03. Temporary Certificates. Pending the preparation of
Definitive Certificates of any Series (or Class within each such Series), the
Depositor may execute, and upon receipt of Depositor Order, the Trustee shall
authenticate and deliver temporary Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as may be authorized by such Depositor Order.
Any such temporary Certificate may be in global form, representing all or a
portion of the Outstanding Certificates of such Series or Class. Every such
temporary Certificate shall be executed by the Depositor and shall be
authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the Definitive
Certificate or Definitive Certificates in lieu of which is issued.
If temporary Certificates of any Series (or Class within such Series) are
issued, the Depositor will cause Definitive Certificates of such Series or Class
to be prepared without unreasonable delay. After the preparation of Definitive
Certificates of such Series or Class, the temporary Certificates of such Series
or Class shall be exchangeable for Definitive Certificates of such Series or
Class upon surrender of the temporary Certificates of such Series or Class at
the office of the Trustee in a Place of Distribution for such Series or Class,
without charge to the Holder, except as provided in Section 5.04 in connection
with a transfer. Upon surrender for cancellation of any one or more temporary
Certificates of any Series or Class within such Series, the Depositor shall
execute and the Trustees shall authenticate and deliver in exchange therefore
Definitive Certificates with a like Certificate Principal Balance or Notional
Amount, as applicable, of the same Series (or Class within such Series) of
authorized denominations and of like tenor. Until so exchanged, temporary
Certificates of any Series (or Class within such Series) shall in all respects
be entitled to the same benefits under this Trust Agreement as Definitive
Certificates of such Series or Class,
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except as otherwise specified in the applicable Series Supplement with respect
to the payment of interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.03 or Section 5.04, the temporary
Global Security shall be endorsed by the Trustee to reflect the reduction of the
aggregate Certificate Principal Balance or Notional Amount, as applicable,
evidenced thereby, whereupon the aggregate Certificate Principal Balance or
Notional Amount, as applicable, of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
Section 5.04. Registration; Registration of Transfer and Exchange. (a)
The Trustee shall cause to be kept a register for each Series of Registered
Certificates (the registers maintained in such office and in any other office or
agency of the Trustee in a Place of Distribution being herein sometimes
collectively referred to as the "Certificate Register") in which a transfer
agent and registrar (which may be the Trustee) (the "Certificate Registrar")
shall provide for the registration of Registered Certificates and the
registration of transfers and exchanges of Registered Certificates. The Trustee
is hereby initially appointed Certificate Registrar for the purpose of
registering Registered Certificates and transfers and exchanges of Registered
Certificates as herein provided; provided, however, that the Trustee may appoint
one or more co-Certificate Registrars. Upon any resignation of any Certificate
Registrar, the Depositor shall promptly appoint a successor or, in the absense
of such appointment, assume the duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the Depositor as
Certificate Registrar, the Depositor will give the Trustee prompt written notice
of the appointment of a Certificate Registrar and of the location, and any
change in the location, of the Certificate Register, and the Trustee shall have
the right to rely upon a certificate executed on behalf of the Certificate
Registrar by an officer thereof as to the names and addresses of the Holders of
the Registered Certificates and the principal amounts and numbers of such
Registered Certificates.
(b) Upon surrender for registration of transfer any Registered Certificate
of any Series (or Class within such Series) at the office or agency of the
Trustee, if the requirements of Section 8-401(1) of the Uniform Commercial Code
are met to the Depositor's satisfaction, the Depositor shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Certificates of any authorized
denominations, of a like Series, Class and aggregate Certificate Principal
Balance or Notional Amount, as applicable.
(c) Notwithstanding any other provisions of this Section, unless and until
it is exchanged in whole or in part for the individual Certificates represented
thereby, a Global Security representing all or a portion of the Certificates of
a Series (or Class within such Series) may not be transferred except as a whole
by the Depository for such Series or Class to a nominee of such Depository or by
a nominee of such Depository to such Depository or
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another nominee of such Depository or by such Depository or any such nominee to
a successor Depository for such Series or Class or a nominee of such successor
Depository.
(d) At the option of the Holder, Registered Certificates of any
Series (or Class within such Series) (other than a Global Security, except as
set forth below) may be exchanged for other Registered Certificates of the same
Series or Class of any authorized denomination or denominations of like tenor
and aggregate Certificate Principal Balance or Notional Amount, as applicable,
upon surrender of the Registered Certificates to be exchanged at the office or
agency of the Trustee maintained for such purpose.
(e) If at the time the Depository for the Certificates of a Series
(or Class within such Series) notifies the Depositor that it is unwilling or
unable to continue as Depository for the Certificates of such Series or Class or
if at any time the Depository for the Certificates of such Series or Class shall
no longer be eligible under Section 5.08(b), the Depositor shall appoint a
successor Depository with respect to the Certificates of such Series or Class.
If a successor Depository for the Certificates of such Series or Class is not
appointed by the Depositor within 90 days after the Depositor receives such
notice or becomes aware of such ineligibility, the Depositor's election pursuant
to Section 5.01 shall no longer be effective with respect to the Certificates of
such Series or Class and the Depositor will execute, and the Trustee, upon
receipt of a Depositor Order for the authentication and delivery of individual
Certificates of such Series or Class, will authenticate and deliver individual
Certificates of such Series or Class in an aggregate Certificate Principal
Balance or Notional Amount, as applicable, equal to the aggregate Certificate
Principal Balance or Notional Amount, as applicable, of the Global Security or
Securities representing Certificates of such Series or Class in exchange for
such Global Security or Securities.
(f) The Depositor may at any time and in its sole discretion
determine that individual Certificates of any Series (or Class within such
Series) issued in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Depositor
shall execute, and the Trustee, upon receipt of a Depositor Order for the
authentication and delivery of individual Certificates of such Series or Class,
shall authenticate and deliver, individual Certificates of such Series or Class
in an aggregate Certificate Principal Balance or Notional Amount, as applicable,
equal to the aggregate Certificate Principal Balance or Notional Amount, as
applicable, of the Global Security or Securities representing Certificates of
such Series or Class in exchange for such Global Security or Securities.
(g) If specified by the Depositor pursuant to Section 5.01 with
respect to a Series (or Class within such Series) of Certificates, the
Depository for such Series may surrender a Global Security for such Series or
Class in exchange in whole or in part for individual Certificates of such Series
or Class on such terms as are acceptable to the Depositor and such Depository.
Thereupon, the Depositor shall execute, and the Trustee, upon receipt of a
Depositor Order, shall authenticate and deliver, without service charge,
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(i) to each Person specified by such Depository a new individual
Certificate or Certificates of the same Series or Class, of any authorized
denomination as requested by such Person in an aggregate Certificate
Principal Balance or Notional Amount, as applicable, equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(ii) to such Depository a new Global Security in a denomination equal
to the difference, if any, between the aggregate Certificate Principal
Balance or Notional Amount, as applicable, of the surrendered Global
Security and the aggregate Certificate Principal Balance or Notional
Amount, as applicable, of individual Certificates delivered to Holders
thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Depositor shall execute, and the Trustee, upon receipt of a Depositor Order,
will authenticate and deliver individual Certificates in registered form in
authorized denominations.
Upon the exchange of a Global Security for individual Certificates, such
Global Security shall be cancelled by the Trustee. Individual Registered
Certificates issued in exchange for a Global Security pursuant to this Section
5.04 shall be registered in such names and in such authorized denominations as
the Depository for such Global Security, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Registered Certificates to the Person in
whose names such Registered Certificates are so registered.
(h) All Certificates issued upon any registration of transfer or exchange
of Certificates shall constitute complete and indefeasible evidence of ownership
in the Trust related to such Certificates and be entitled to the same benefits
under this Trust Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
(i) Every Registered Certificate presented or surrendered for registration
of transfer or exchange shall (if so required by the Depositor, the Trustee or
the Certificate Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor, the Trustee or the
Certificate Registrar, duly executed, by the Holder thereof or his attorney duly
authorized in writing, with such signature guaranteed by a brokerage firm or
financial institution that is a member of a Securities Approved Medallion
Program such as Securities Transfer Agents Medallion Program (STAMP), Stock
Exchange Medallion Program (SEMP) or New York Stock Exchange Inc. Medallion
Signature Program (MSP).
(j) No service charge shall be made to a Holder for any registration of
transfer or exchange of Certificates, but the Depositor may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Certificates,
other than exchanges pursuant to Section 5.03 not involving any transfer.
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Section 5.05. Mutilated, Destroyed, Lost and Stolen Certificates. If (i)
any mutilated Certificate is surrendered to the Trustee at its Corporate Trust
Office or (ii) the Depositor and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate, and there is
delivered to the Depositor and the Trustee such security or idemnity as they may
require to hold each of them and any Paying Agent harmless, and neither the
Depositor nor the Trustee receives notice that such Certificate has been
acquired by a bona fide purchaser, then the Depositor shall execute and the
Trustee, upon receipt of a Depositor Order, shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Series or Class of like tenor, form,
terms and principal amount, bearing a number not contemporaneously Outstanding,
so that neither gain nor loss in interest shall result from such exchange or
substitution.
Upon the issuance of any new Certificate under this Section, the
Depositor may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Certificate of any Series or Class issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust related to such Series, whether or not the destroyed, lost or stolen
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Trust Agreement equally and proportionately with any
and all other Certificates of that Series or Class duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates or
Coupons.
Section 5.06. Persons Deemed Owners. (a) The Depositor, the Trustee and
any agent of the Depositor or the Trustee may treat the Person in whose name any
Registered Certificate is registered as the owner of such Registered Certificate
for the purpose of receiving distributions of principal of (and premium, if any)
and (subject to Section 4.02) interest, if any, on such Registered Certificate
and for all other purposes whatsoever, whether or not such Registered
Certificate be overdue, and neither the Depositor or the Trustee, nor any agent
of the Depositor or the Trustee shall be affected by notice to the contrary.
(b) None of the Depositor, the Trustee or any of their agents will
have any responsibility or liability for any aspect of the records relating to
or distributions made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 5.07. Cancellation. Unless otherwise specified pursuant to
Section 5.01 for Certificates of any Series, all Certificates surrendered for
payment, redemption, transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the
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Trustee and shall be promptly cancelled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Trust Agreement.
Section 5.08. Global Securities. (a) If the Series Supplement pursuant to
Section 5.01 provides that a Series (or Class within such Series) of
Certificates shall be represented by one or more Global Securities that (i)
shall represent an aggregate initial Certificate Principal Balance or Notional
Amount, as applicable, equal to the aggregate initial Certificate Principal
Balance or Notional Amount, as applicable, of the Certificates of such Series or
Class to be represented by such one or more Global Securities, (ii) shall be
registered, if in registered form, in the name of the Depository for such Global
Security or Securities or the nominee of such Depository, (iii) shall be
delivered by the Trustee to such Depository or pursuant to such Depository's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual
Certificates represented hereby, this Global Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository."
No Holder of a Certificate of such Series or Class will receive a
Definitive Certificate representing such Holder's interest in such Certificate
or Certificates, except as provided in Section 5.10. Unless and until
definitive, fully registered Certificates (the "Definitive Certificates") have
been issued to Holders of such Series or Class pursuant to Section 5.10:
(i) the provisions of this Section 5.09 shall be in full force
and effect;
(ii) the Certificate Registrar and the Trustee shall be
entitled to deal with the Depository for all purposes of this Trust
Agreement (including the distribution of principal of, and premium, if
any, and interest on the Certificates and the giving of instructions
or directions hereunder) as the sole Holder of the Certificates of
such Series or Class, and shall have no obligation to the owners of
beneficial interests in such Series or Class (collectively, the
"Certificate Owners");
(iii) to the extent that the provisions of this Section 5.08
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.08 shall control;
(iv) the rights of Certificate Owners of such Series or Class
shall be exercised only through the Depository and shall be limited to
those established by law and agreements between such Certificate
Owners and the Depository or its Participants; and
(v) whenever this Trust Agreement requires or permits actions
to be taken based upon instructions or directions of Holders of
Certificates of such Series or Class evidencing a specified percentage
of the aggregate Voting Rights of such Series or Class, the Depository
shall be deemed to represent such percentage only to the extent
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that it has received instructions to such effect from Certificate Owners of
such Series or Class or Participants in such Depository's system owning or
representing, respectively, such required percentage of the beneficial
interest in the Certificates of such Series or Class and has delivered such
instructions to the Trustee.
(b) Each Depository designated pursuant to Section 5.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as such Depository, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
Section 5.09. Notices to Depository. Whenever a notice or other
communication to the Holders of a Series or Class within such Series represented
by one or more Global Securities is required under this Trust Agreement, unless
and until Definitive Certificates for such Series or Class shall have been
issued to such Certificate Owners pursuant to Section 5.10, the Trustee shall
give all such notices and communications specified herein to be given to Holders
of the Certificates of such Series to the Depository, and shall have no
obligation to the Certificate Owners.
Section 5.10. Definitive Certificates. If in respect of a Series (or Class
within such Series) represented by one or more Global Securities (i) the
Depositor advises the Trustee in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Certificates of such Series or Class and the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system of such Series or
Class through the Depository or (iii) Certificate Owners representing beneficial
interests aggregating at least a majority (or such other Required Percentage--
Definitive Certificates that may be specified in a Series Supplement) of the
Voting Rights of the Certificates of such Series or Class advise the Depository
in writing that the continuation of a book-entry system for such Series or Class
through the Depository is no longer in the best interests of the Certificate
Owners of such Series or Class, then the Depository shall notify all Certificate
Owners or Participants in the Depository's system with respect to such Series or
Class and the Trustee of the occurrence of any such event and of the
availability of Definitive Certificates for such Series or Class to Certificate
Owners of such Series or Class requesting the same.
Upon surrender to the Trustee of the Global Securities of such Series or
Class by the Depository, accompanied by registration instructions, the Depositor
shall execute and the Trustee shall authenticate the Definitive Certificates of
such Series or Class in accordance with the instructions of the Depository. None
of the Depositor, the Certificate Registrar or the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates of a Series or Class, the Trustee shall recognize the
holders of the Definitive Certificates of such Series or Class as Holders.
Section 5.11. Conditions of Authentication and Delivery of New Series.
Certificates of a new Series may be issued at any time and from time to time
after the execution and delivery of these Standard Terms and the related Series
Supplement. The Depositor shall
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execute and deliver Certificates of such Series to the Trustee and the Trustee
shall authenticate and deliver such Certificates upon a Depositor Order and upon
delivery by the Depositor to the Trustee of the following:
(1) The delivery of the Underlying Securities in accordance with
Section 2.01(b);
(2) An Officer's Certificate of the Depositor, dated as of the
Closing Date, to the effect that all of the requirements of this
Section 5.11 have been satisfied, and that the Depositor is not in
breach of this Trust Agreement and that the issuance of the
Certificates will not result in any breach of any of the terms,
conditions, or provisions of, or constitute a default under, the
Depositor's certificate of incorporation or bylaws, or any indenture,
mortgage, deed of transfer or other agreement or instrument to which
the Depositor is a party or by which it or its property is bound or
any order of any court or administrative agency entered in any
Proceeding to which the Depositor is a party or by which it or its
property may be bound or to which it or its property may be subject;
(3) A Series Supplement consistent with the applicable
provisions of these Standard Terms;
(4) If applicable, a fully executed copy of the Swap Agreement,
together with all documents and opinions required to be delivered to
the Trust upon execution thereof pursuant to the terms thereof; and
(5) Written instructions by the Depositor to the Trustee
directing the Trustee to enter into and perform any obligations under
the Swap Agreement, if applicable, and/or the Market Agent Agreement,
if applicable.
If all the Certificates of a Series are not to be originally issued at
the same time, then the documents required to be delivered pursuant to this
Section 5.11 must be delivered only once, prior to the authentication and
delivery of the first Certificate of such Series; provided, however, that any
subsequent Depositor Order to the Trustee to authenticate Certificate of such
Series upon original issuance shall constitute a representation and warranty by
the Depositor that, as of the date of such request, the statements made in this
Section 5.11 shall be true and correct as if made on such date.
Section 5.12. Appointment of Paying Agent. The Trustee may appoint one or
more paying agents (each, a "Paying Agent") with respect to the Certificates of
any Series. Any such Paying Agent shall be authorized to make distributions to
Certificateholders of such Series from the Certificate Account for such Series
pursuant to the provisions of the applicable Series Supplement and shall report
the amounts of such distributions to the Trustee. Any Paying Agent shall have
the revocable power to withdraw funds from such Certificate Account for the
purpose of making the distributions referred to above. The Trustee may revoke
such power and remove the Paying Agent if the Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under
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this Trust Agreement in any material respect. The Paying Agent shall initially
be the Trustee and any co-paying agent chosen by the Trustee and acceptable to
the Depositor. Any Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' notice to the Trustee. In the event that the Trustee shall no
longer be the Paying Agent, the Trustee shall appoint a successor or additional
Paying Agent. The Trustee shall cause each successor to act as Paying Agent to
execute and deliver to Trustee an instrument in which such successor or
additional Paying Agent shall agree with the Trustee that it will hold all sums,
if any, held by it for distribution to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
distributed to such Certificateholders and will agree to such other matters as
are required by Section 317(b) of the Trust Indenture Act. The Paying Agent
shall return all unclaimed funds to the Trustee and upon removal shall also
return all funds in its possession to the Trustee. The provisions of Sections
7.01, 7.03, 7.04 and 7.06 shall apply to the Trustee also in its role as Paying
Agent, for so long as the Trustee shall act as Paying Agent. Any reference in
this Trust Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise. Notwithstanding anything contained herein
to the contrary, the appointment of a Paying Agent pursuant to this Section 5.12
shall not release the Trustee from the duties, obligations, responsibilities or
liabilities arising under this Trust Agreement other than with respect to funds
paid to such Paying Agent.
Section 5.13. Authenticating Agent. (a) The Trustee may appoint one or
more Authenticating Agents (each, an "Authenticating Agent") with respect to the
Certificates of any Series which shall be authorized to act on behalf of the
Trustee in authenticating such Certificates in connection with the issuance,
delivery and registration of transfer or exchange of such Certificates. Whenever
reference is made in this Trust Agreement to the authentication of Certificates
by the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent must be
acceptable to the Depositor. Notwithstanding anything contained herein to the
contrary, the appointment of an Authenticating Agent pursuant to this Section
5.13 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Trust Agreement.
(b) Any institution succeeding to the corporate agency business of any
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filing of any power or any further act on the part of the Trustee
or such Authenticating Agent. An Authenticating Agent may at any time resign by
giving notice of resignation to the Trustee and to the Depositor. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving notice
of termination to such Authenticating Agent and to the Depositor. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
an Authenticating Agent shall cease to be acceptable to the Trustee or the
Depositor, the Trustee promptly may appoint a successor Authenticating Agent.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless acceptable to the
Despositor. The Trustee agrees to pay to each
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Authenticating Agent from time to time reasonable compensation for its services
under this Section. The provisions of Section 7.01, 7.03 and 7.04 shall be
applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the Certificates
may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Certificates described in the Standard Terms and
the related Series Supplement.
Dated:
-----------------------------------------
-----------------------------------------
as Authenticating Agent for the Trustee,
By
---------------------------------------
Section 5.14. Voting Rights with Respect to Underlying Securities. (a)
Within five Business Days after receipt of notice of any meeting of, or other
occasion for the exercise of voting rights or the giving of consents ("voting
rights") by, owners of any of the Underlying Securities, the Trustee shall give
notice to the Certificateholders, setting forth (i) such information as is
contained in such notice to owners of Underlying Securities, (ii) a statement
that the Certificateholders will be entitled, subject to any applicable
provision of law and any applicable provisions of such Underlying Securities
(and to the extent of the voting rights allocated to the Certificateholders
pursuant to subsection 5.14(b)), to instruct the Trustee as to the exercise of
voting rights, if any, pertaining to such Underlying Securities and (iii) a
statement as to the manner in which instructions may be given to the Trustee to
give a discretionary proxy to a person designated in the notice received by the
Trustee. Such notice shall be given by the Trustee to the Certificateholders of
record on such Record Date.
Upon the written request of the applicable Certificateholder, received on
or before the date established by the Trustee for such purpose, the Trustee
shall endeavor, insofar as practicable and permitted under any applicable
provision of law and any applicable provision of or governing the Underlying
Securities, to vote in accordance with any nondiscretionary instruction set
forth in such written request (in each case to the extent of the voting rights
allocated pursuant to subsection 5.14(b) to such Certificateholder). The Trustee
shall not vote except as specifically authorized and directed in written
instructions from the applicable Certificateholder entitled to give such
instructions.
(b) Unless otherwise specified in the applicable Series Supplement, the
voting rights allocable to the owners of the Underlying Securities pursuant to
the terms thereof shall be allocated among the Certificateholders pro rata, in
the proportion that the denomination of each Certificate bears to the aggregate
denomination of all Certificates.
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(c) By accepting delivery of a Certificate, whether upon original issuance
or subsequent transfer, exchange or replacement thereof, and without regard to
whether ownership is beneficial or otherwise, the Certificateholder agrees so
long as it is an owner of such Certificate that it shall not grant any consent
(i) to any conversion of the timing of payment of, or the method or rate of
accruing, interest on the Underlying Securities underlying the Certificates held
by such Certificateholder or (ii) to any redemption or prepayment of the
Underlying Securities underlying the Certificates held by such
Certificateholder. The Trustee shall not grant any consent solicited from the
owners of the Underlying Securities underlying the Certificates with respect to
the matters set forth in this Section nor shall it accept or take any action in
respect of any consent, proxy or instructions received from any
Certificateholder in contravention of the provisions of this Section.
Section 5.15. Actions by Certificateholders. (a) Wherever in this Trust
Agreement a provision is made that an action may be taken or a notice, demand or
instruction given by Certificateholders or Beneficial Owners, such action,
notice or instruction may be taken or given by any Certificateholder or
Beneficial Owner.
(b) Each Certificateholder or Beneficial Owner shall have the right to
assert any rights and privileges of a Certificateholder or Beneficial Owner, and
shall have the right to proceed directly and individually against any Person to
enforce any remedies hereunder and shall not be required to act in concert with
any other Certificateholder or Beneficial Owner or any other Person.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder or Beneficial Owner of a Certificate shall
bind such Certificateholder or Beneficial Owner and every subsequent
Certificateholder or Beneficial Owner of such Certificate or any Certificate
issued upom the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted to be done by the
Certificateholder or Beneficial Owner or the Trustee in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(d) Certificateholders of Certificate are beneficial owners of the right to
receive principal payments and interest payments to which such Certificate
relate and, as such, will have the right following an event of default with
respect to any Underlying Security to proceed directly against the Underlying
Securities Issuer(s). Such Certificateholders are not required to join other
Certificateholders of Certificates, the Depositor or the Trustee in order to
proceed against the Underlying Securities Issuer(s).
Section 5.16. Events of Default. If any Event of Default shall occur and be
continuing with respect to any class of Certificates, then, and in each and
every case, the Trustee shall exercise any rights in respect of the related
Underlying Securities as provided in the applicable Series Supplement.
Section 5.17. Judicial Proceedings Instituted by Trustee; Trustee May Bring
Suit. If there shall be a failure to make payment of the principal of or
premium, if any, or interest on any Underlying Security, then the Trustee, in
its own name, and as trustee of an express
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trust, as holder of such Underlying Security, shall be, to the extent permitted
by and in accordance with the terms of the Underlying Security, subject to the
limitations on acceleration and the exercise of remedies set forth therein,
entitled and empowered to institute any suits, actions or proceedings at law, in
equity or otherwise, including the power to make a demand on the trustee in
respect of such Underlying Security, if provided for, to take action to enforce
the Underlying Security for the collection of the sums so due and unpaid on such
Underlying Security and may prosecute any such claim or proceeding to judgment
or final decree with respect to the whole amount of any such sums so due and
unpaid.
Section 5.18. Control by Certificateholders. The Holders of Certificates
of any Class holding Certificates representing not less than the Required
Percentage -- Direction of Trustee of the aggregate Voting Rights of the
Outstanding Certificates of such Class shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee under this
Trust Agreement, including any right of the Trustee as holder of the Underlying
Securities; provided, however, that:
(1) such direction shall not be in conflict with any rule of law or
with this Trust Agreement and would not involve the Trustee in personal
liability or expense;
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders of Certificates of such Class not
taking part in such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.19. Waiver of Past Defaults. The Holders of the Required
Percentage -- Waiver of Certificates of any Series may direct the Trustee to
vote such percentage of the Underlying Securities held by the Trustee as
corresponds to the percentage of the aggregate Principal Amount of the
Certificates of such Series held by such Holders to waive any past Event of
Default thereunder with respect to such Series of Certificates and its
consequences or may instruct the Trustee to waive any past default under this
Trust Agreement and its consequences, except a default:
(1) in the payment of the principal of or premium, if any, or
interest on the Underlying Securities;
(2) in respect of a covenant or provision hereof which under Article
VIII hereof cannot be modified or amended without the consent of the Holder
of each Outstanding Certificate affected; or
(3) specified in the applicable Series Supplement, if any, unless the
applicable Series Supplement provides otherwise.
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Upon any such direction, the Trustee shall vote such percentage of the
Underlying Securities of the corresponding Series held by the Trustee as
corresponds to the percentage of the aggregate Principal Amount of the
Outstanding Certificates of such Series held by Holders who directed the Trustee
to waive such default or Event of Default thereunder. Upon any waiver that is
effective under the terms of such Class of Underlying Securities to waive such
default or Event of Default, such default or Event of Default shall cease to
exist with respect to this Trust Agreement, and, in the case of a default, any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Trust Agreement and any direction given by the Trustee on behalf
of such Certificateholders or in respect of any Underlying Securities shall be
annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consent
thereon.
Section 5.20. Right of Certificateholders to Receive Payments Not to Be
Impaired. Anything in this Trust Agreement to the contrary notwithstanding, the
right of any Certificateholder to receive distributions of payments required
pursuant to Section 4.01 hereof on the Certificates when due, or to institute
suit for enforcement of any such payment on or after the applicable Distribution
Date or other date specified herein for the making of such payment, shall not be
impaired or affected without the consent of such Certificateholder.
Section 5.21. Remedies Cumulative. Every remedy given hereunder to the
Trustee or to any of the Certificateholders shall not be exclusive of any other
remedy or remedies, and every such remedy shall be cumulative and in addition to
every other remedy given hereunder or now or hereafter given by statute, law,
equity or otherwise.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor. (a) The Depositor shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed by these Standard Terms and the related Series Supplement.
Section 6.02. Limitation on Liability of the Depositor. (a) The Depositor
shall not be under any obligation to expend or risk its own funds or otherwise
incur financial liability in the performance of its duties hereunder or under a
Series Supplement or in the exercise of any of its rights or power if reasonable
grounds exist for believing that the repayment or such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(b) Neither the Depositor nor any of its directors, officers, employees or
agents shall be under any liability to any Trust or the Certificateholders of
any Series for any action taken, or for refraining from the taking of any
action, in good faith pursuant to this Trust Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Depositor
against any breach of representations, warranties or covenants made herein or
against any liability which would otherwise be imposed by reason of willful
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misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder.
(c) The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Trust Agreement and, in its opinion, does not
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Trust Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. The
Depositor shall be under no obligation whatsoever to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Underlying
Securities.
(d) The Depositor shall not be liable to any Certificateholder for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any Certificateholder of a Certificate or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositor may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(e) The Depositor shall not incur any liability to any Certificateholder
if, by reason of any provision of any present or future law, or regulation
thereunder, or any governmental authority, or by any reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositor shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Trust Agreement provide shall be done or
performed; and the Depositor shall not incur any liability to any
Certificateholder by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this Trust
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Trust
Agreement.
Section 6.03. Depositor May Purchase Certificates. The Depositor may at any
time purchase Certificates in the open market or otherwise. Certificates so
purchased by the Depositor may, at the discretion of the Depositor, be held or
resold. Certificates beneficially owned by the Depositor will be disregarded for
purposes of determining whether the required percentage of the aggregate Voting
Rights has given any request, demand, authorization, direction, notice, consent
or waiver hereunder.
Section 6.04. Merger or Consolidation of the Depositor. Nothing in this
Trust Agreement shall prevent any consolidation or merger of the Depositor with
or into any other corporation, or any consolidation or merger of any other
corporation with or into the Depositor or any sale or transfer of all or
substantially all of the property and assets of the Depositor to any other
Person lawfully entitled to acquire the same; provided, however, that, so long
as Certificates are outstanding hereunder, the Depositor covenants and agrees
that any such consolidation, merger, sale or transfers shall be upon the
condition that the due and punctual performance and observance of all the terms,
covenants and conditions of this Trust Agreement to be kept or performed by the
Depositor shall be assumed by the Person
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(if other than the Depositor) formed by or resulting from any such consolidation
or merger, or which shall have received the transfer of all or substantially all
of the property and assets of the Depositor, just as fully and effectually as if
successor Person had been the original party of the first part hereto; and in
the event of any such sale or transfer the predecessor Depositor may be
dissolved, wound up and liquidated at any time thereafter.
Section 6.05. No Liability of the Depositor with Respect to the Underlying
Securities; Certificateholders to Proceed Directly Against the Underlying
Securities Issuer(s). (a) The sole obligor with respect to any Underlying
Security is the Underlying Securities Issuer thereof. The Depositor shall not
have any obligation on or with respect to the Underlying Securities; and its
obligations with respect to Certificates shall be solely as set forth in this
Trust Agreement.
(b) The Depositor is not authorized to proceed against the Underlying
Securities Issuer of any Underlying Security in the event of a default or to
assert the rights and privileges of Certificateholders of Certificates and has
no duty in respect thereof.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Duties of Trustee. (a) The Trustee undertakes to perform such
duties and only such duties as are specifically set forth in these Standard
Terms and the related Series Supplement. The Trustee shall exercise such of the
rights and powers vested in it by this Trust Agreement, and shall use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of such person's own affairs. The
Trustee shall exercise those rights in a manner consistent with the status of
any Trust created hereunder as a fixed investment trust for federal income tax
purposes. The Trustee shall not have any power to vary the investment of any
Certificateholders of any Series or to accept any assets (other than proceeds of
the Underlying Securities) other than the Underlying Securities transferred to
it on the Closing Date of any Series. Any permissive right of the Trustee
enumerated in this Trust Agreement shall not be construed as a duty and shall be
interpreted consistently with the status of the Trust as a fixed investment
trust.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Trust Agreement, shall examine them to determine whether they
conform to the requirements of this Trust Agreement. If any such instrument is
found not to conform to the requirements of this Trust Agreement, the Trustee
shall take action as it deems appropriate to have the instrument corrected, and
if the instrument is not corrected to the Trustee's satisfaction, the Trustee
will provide notice thereof to the Depositor and Certificateholders.
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(c) No provision of this Trust Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Trust Agreement, the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Trust Agreement, no implied covenants or
obligations shall be read into this Trust Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee that conform to the requirements of this
Trust Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of the Required Percentage --
Direction of Trustee of the aggregate Voting Rights of a given Series (or
Class or group of Classes within such Series), as specified in the
applicable Series Supplement relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Trust
Agreement;
(iv) the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it;
(v) except for actions expressly authorized by this Trust Agreement,
the Trustee shall take no actions reasonably likely to impair the interests
of the Trust in any Underlying Security now existing or hereafter acquired
or to impair the value of any Underlying Security now existing or hereafter
acquired;
(vi) except as expressly provided in this Trust Agreement, the
Trustee shall have no power to vary the corpus of the Trust including by
(A) accepting any substitute obligation or asset for a Underlying Security
initially assigned to the Trustee under Section 2.01, (B) adding any other
investment, obligation or security to the Trust or (C) withdrawing from the
Trust any Underlying Securities;
(vii) in the event that the Paying Agent or the Registrar shall fail
to perform any obligation, duty or agreement in the manner or on the day
required to be performed by the Paying Agent or Registrar, as the case may
be, under this Trust
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Agreement, the Trustee shall be obligated promptly upon its knowledge
thereof to perform such obligation, duty or agreement in the manner so
required;
(viii) the Trustee shall not be liable to any Certificateholder for
any action or non-action by it in reliance upon the advice of or
information from legal counsel, accountants, any Certificateholder of a
Certificate or any other person believed by it in good faith to be
competent to give such advice or information. The Trustee may rely and
shall be protected in acting upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ix) the Trustee shall not incur any liability to any
Certificateholder if, by reason of any provision of any present or future
law, or regulation thereunder, or any governmental authority, or by any
reason of any act of God or war or other circumstance beyond the control of
the relevant party, the Trustee shall be prevented or forbidden from doing
or performing any act or thing which the terms of this Trust Agreement
provide shall be done or performed; and the Trustee shall not incur any
liability to any Certificateholder by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which
the terms of this Trust Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Trust Agreement;
(x) the Trustee shall be under no obligation whatsoever to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any Underlying Securities;
(xi) whenever in the administration of this Trust Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers'
Certificate; and
(xii) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in reliance thereon, unless the Trustee's taking,
suffering or omitting such action shall have been willful misconduct, in
bad faith or negligent.
(d) As promptly as practicable after, and in any event within 10 days
after, the occurrence of any default (as such term is defined below) hereunder
with respect to any Class of Certificates, the Trustee shall transmit by mail to
the Depositor and the Holders of Certificates of such Class in accordance with
Section 313(c) of the Trust Indenture Act, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of or premium, if any, or interest on any Underlying Security, the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of
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Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the Holders of the Certificates of such
Class. For the purpose of this Section, the term "default" means, with respect
to any Class of Certificates, any event that is, or after notice or lapse of
time or both would become, an Event of Default with respect to such Class of
Certificates.
(e) Within five (5) Business Days after the receipt by the Trustee of a
written application by any three or more Certificateholders stating that the
applicants desire to communicate with other Certificateholders with respect to
their rights under this Trust Agreement or under the Certificates, and
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, and by reasonable proof that each such applicant
has owned its Certificates for a period of at least six (6) months preceding the
date of such application, the Trustee shall, at its election, either:
(i) afford to such applicants access to all information so furnished
to or received by the Trustee; or
(ii) inform such applicants as to the approximate number of
Certificateholders according to the most recent information so furnished to
or received by the Trustee, and as to the approximate cost of mailing to
such Certificateholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all such Certificateholders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.02. Between Trustee and Sub-Administrative Agents. (a) Unless
otherwise provided in a Series Supplement, the Trustee may enter into Sub-
Administration Agreements with one or more Sub-Administrative Agents in order to
delegate certain of its administrative obligations with respect to a related
Series under this Trust Agreement to such Sub-Administrative Agents; provided,
however, that (i) such delegation shall not release the Trustee from the duties,
obligations, responsibilities or liabilities arising under this Trust Agreement;
(ii) the Rating Agency Condition shall have been satisfied with respect to the
entering into of any such agreement and (iii) such agreements are consistent
with the terms of these Standard Terms and, with respect to Certificates of any
Series, the related Series Supplement. With respect to any Series (or Class
within such Series) of Certificates, each Sub-Administration Agreement shall
impose on the Sub-Administrative Agent requirements conforming to the provisions
set forth in Section 3.01 and provide for administration of the related Trust
and all or certain specified Underlying Securities for such Series consistent
with the terms of this Trust Agreement. Additional requirements relating to the
scope and contents of any Sub-Administration Agreement may be provided in the
applicable Series Supplement. The Trustee shall deliver to the Depositor copies
of all
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Sub-Administration Agreements which it enters into, and any amendments or
modifications thereof, promptly upon the Trustee's execution and delivery of any
such instruments.
(b) The Trustee shall be entitled to terminate any Sub-Administration
Agreement which it enters into and the rights and obligations of any Sub-
Administrative Agent under any Sub-Administration Agreement in accordance with
the terms and conditions of any such Sub-Administration Agreement. In the event
of a termination of any Sub-Administration Agreement, the Trustee shall
simultaneously reassume direct responsibility for all obligations delegated in
such Sub-Administration Agreement without any act or deed on the part of the
applicable Sub-Administrative Agent, the Trustee shall administer directly the
related Underlying Securities or shall enter into a Sub-Administration Agreement
with a successor Sub-Administrative Agent which so qualifies under Section 7.02.
(c) Unless otherwise provided in the applicable Series Supplements, in the
event a Sub-Administrative Agent is administering one or more Underlying
Securities pursuant to a Sub-Administration Agreement, the Sub-Administrative
Agent shall be required immediately to direct the Trustee to deposit into an
Eligible Account established by such Sub-Administrative Agent (a
"Sub-Administration Account") any amounts collected with respect thereto, and
all such amounts shall be deposited into the related Certificate Account not
later than the Business Day after receipt thereof.
Section 7.03. Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in this Article VII:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal
bond or other paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Trust Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Trust Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby;
(iv) the Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Trust Agreement.
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(v) the Trustee shall not be bound to make any investigation into the
facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
approval, bond or other paper or document believed by it to be genuine,
unless requested in writing to do so by Holders of the Required
Percentage--Direction of Trustee of the aggregate Voting Rights of the
affected Series (or Class or Classes within any such Series), as specified
by the applicable Series Supplement; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Trust Agreement, the
Trustee may require reasonable indemnity against such expense or liability
as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account or
Reserve Account at the direction of the Depositor pursuant to Section 3.05.
(b) All rights of action under this Trust Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the Trustee shall
be brought in its name for the benefit of all the Holders of such Certificates,
subject to the provisions of this Trust Agreement.
Section 7.04. Trustee Not Liable for Recitals in Certificates or Underlying
Securities. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Certificates or in any document issued in
connection with the sale of the Certificates (other than the signature and
authentication on the Certificates). Except as set forth in Section 7.10, the
Trustee makes no representations or warranties as to the validity or sufficiency
of this Trust Agreement or of the Certificates of any Series (other than the
signature and authentication on the Certificates) or of any Underlying Security
or related document. The Trustee shall not be accountable for the use or
application by the Depositor, of any of the Certificates or of the proceeds of
such Certificates.
Section 7.05. Trustee May Own Certificates. The Trustee in its individual
capacity or any other capacity may become the power or pledgee of Certificates
with the same rights it would have if it were not Trustee; provided, however,
that in determining whether the required percentage of aggregate Voting Rights
shall have consented to any action hereunder requiring the consent of the
Certificateholders, the Trustee's interest shall be excluded.
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Section 7.06. Trustee's Fees and Expenses. (a) The applicable Series
Supplement shall specify the amount and circumstances of the Trustee's
compensation and the source thereof.
(b) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is greater than zero, the Trustee acknowledges that the Depositor has
paid to the Trustee an amount equal to the Prepaid Ordinary Expenses, and the
Trustee agrees that the payment of such amount shall constitute full and final
satisfaction of and payment for all Ordinary Expenses.
(c) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is zero, the Series Supplement may indicate that Ordinary Expenses
will be paid for by the Trust, in which case the Trustee shall be paid on a
periodic basis by the Trust or the Retained Interest at the rate or amount and
on the terms provided for in the Series Supplement. The Trustee agrees that its
right to receive such payments from the Trust shall constitute full and final
satisfaction of and payment for all Ordinary Expenses and that the Trustee shall
have no claim on payment of Ordinary Expenses from any other source, including
the Depositor.
(d) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is zero, the Series Supplement may provide that the Depositor shall
pay to the Trustee from time to time a fee for its services and expenses as
Trustee as set forth in the Series Supplement payable at the times set forth
therein. The Trustee agrees that its right to receive such payments from the
Depositor shall constitute full and final satisfaction of and payment for all
Ordinary Expenses and that the Trustee shall have no claim for payment of
Ordinary Expenses from the Trust. The Trustee further agrees that,
notwithstanding any failure by the Depositor to make such periodic payments of
the Ordinary Expenses, the Trustee shall continue to perform its obligations
under this Trust Agreement. The Depositor's obligations to pay Ordinary Expenses
under this Trust Agreement shall be extinguished and of no further effect upon
the payment of Ordinary Expenses due and owing on the termination of the Trust
pursuant to Section 9.01 hereof.
(e) Subject to subsection 7.06(f), all Extraordinary Expenses, to the
extent not paid by a third party are, and shall be, obligations of the Trust and
when due and payable shall be satisfied solely by the Trust.
(f) The Trustee shall not take any action, including appearing in,
instituting or conducting any action or suit hereunder or in relation hereto and
is not indemnifiable under Section 7.11 hereof which, in the Trustee's opinion,
would or might cause it to incur costs, expenses or liabilities that are
Extraordinary Expenses unless (i) the Trustee is satisfied that it will have
adequate security or indemnity in respect of such costs, expenses and
liabilities, (ii) the Trustee has been instructed to do so by Certificateholders
representing not less than the Required Percentage--Remedies of the aggregate
principal amount of Certificates then outstanding, and (iii) the
Certificateholder's, pursuant to the instructions given under clause (ii) above,
have agreed that such costs, expenses or liabilities shall either be (x) paid by
the Trustee from the Trust, in the case of a vote of 100% of the aggregate
principal amount of Certificates then outstanding, or (y) paid by the Trustee
(which payment shall be made out of its own funds and not from monies on deposit
in the Trust) in which case the Trustee shall
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be entitled to receive, upon demand, reimbursement from those Certificateholders
who have agreed to bear the entire amount of such costs, expenses or
liabilities, on a pro rata basis among such Certificateholders.
Section 7.07. Eligibility Requirements for Trustee. (a) the Trustee
hereunder shall at all times be a corporation or an association which is not an
Affiliate of the Depositor (but may have normal banking relationships with the
Depositor and its Affiliates) organized and doing business under the laws of any
State or the United States, authorized under such laws to exercise corporate
trust powers which shall be eligible to act as a trustee under Section 310(a) of
the Trust Indenture Act, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or association publishes reports of conditions at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
conditions so published. Such corporation or association must be rated in one of
the four highest rating categories by the Rating Agency. In the event that at
any time such Trustee shall cease to be eligible in accordance with the
provision of this Section, such Trustee shall resign immediately in the manner
and with the effect specified in Section 7.08.
(b) In determining whether the Trustee has a conflicting interest with
respect to any Class of Certificates under Section 310(b) of the Trust Indenture
Act and this Section, each other Class of Certificate will be treated as having
been issued under an indenture other than this Trust Agreement.
Section 7.08. Resignation or Removal of the Trustee; Appointment of
Successor Trustee. (a) The Trustee may at any time resign as Trustee hereunder
by written notice of its election so to do, delivered to the Depositor, and such
resignation shall take effect upon the appointment of a successor Trustee and
its acceptance of such appointment as hereinafter provided; provided, however,
that in the event of such resignation, the Trustee shall (a) assist the
Depositor in finding a successor Trustee acceptable to the Depositor and (b)
negotiate in good faith concerning any prepaid by unaccrued fees.
(b) The Depositor or Holders of the Required Percentage--Removal of
Trustee of Certificates may at any time remove the Trustee as Trustee hereunder
by written notice delivered to the Trustee in the manner provided in Section
7.04 hereof, and such removal shall take effect upon the appointment of the
successor trustee and its acceptance of such appointment as provided in the
succeeding paragraph; provided, however, that in the event of such removal, the
Depositor shall negotiate in good faith with the Trustee in order to agree
regarding payment of the termination costs of the Trustee resulting from such
removal.
(c) Upon the designation of a successor Trustee, following either
resignation or removal of the Trustee, the Trustee shall deliver to the
successor Trustee all records relating to the Certificates in the form and
manner then maintained by the Trustee, which shall include a hard copy thereof
upon written request of the successor Trustee.
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(d) If at any time the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property of affairs for the purpose of
rehabilitation, conservation or liquidation, the Depositor shall petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. In the event the Trustee resigns or is
removed, the Trustee shall reimburse the Depositor for any fees or charges
previously paid to the Trustee in respect of duties not yet performed under this
Trust Agreement which remain to be performed by a successor Trustee.
(e) In case at any time the Trustee acting hereunder notifies the
Depositor that it elects to resign or the Depositor or Holders of the Required
Percentage--Removal of Trustee of Certificates notifies or notify the Trustee
that it or they elects or elect to remove the Trustee as Trustee, the Depositor
shall, within ninety (90) days after the delivery of the notice of resignation
or removal, appoint a successor Trustee, which shall satisfy the requirements
for a trustee under Section 7.07. If no successor Trustee has been appointed
within 90 days after the Trustee has given written notice of its election to
resign or the Depositor or Holders of the Required Percentage--Removal of
Trustee of Certificates have given written notice to the Trustee of its or their
election to remove the Trustee, as the case may be, the Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
Every successor Trustee shall execute and deliver to its predecessor and to the
Depositor an instrument in writing accepting its appointment hereunder, and
thereupon such successor Trustee, without any further act or deed, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Trustee under this Trust
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Depositor, shall execute and deliver an instrument
transferring to such successor all rights, obligations and powers of such
predecessor hereunder, and shall duly assign, transfer and deliver all right,
title and interest in the Underlying Securities and parts thereof to such
successor. Any successor Trustee shall promptly give notice of its appointment
to the Certificateholders of Certificates for which it is successor Trustee in
the manner provided in Section 7.04 hereof.
(f) Any corporation into or with which the Trustee may be merged,
consolidated or converted shall be the successor of such Trustee without the
execution or filing of any document or any further act.
Section 7.09. Appointment of Office or Agency. As specified in a Series
Supplement, the Trustee shall appoint an office or agency in the City of
__________ where the Certificates may be surrendered for registration of
transfer or exchange, and presented for the final distribution with respect
thereto, and where notices and demands to or upon the Trustee in respect of the
Certificates of the related Series and this Trust Agreement may be served.
Section 7.10. Representations and Warranties of Trustee. The Trustee
represents and warrants that:
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(i) the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or association;
(ii) neither the execution nor the delivery by the Trustee of this
Trust Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
contravene any Federal or _______________ law, governmental rule or regulation
governing the banking or trust powers of the Trustee or any judgment or order
binding on it, or violate its charter documents or by-laws or constitute a
default under (or an event which, without notice or lapse of time or both, would
constitute a default) under, or result in the breach or acceleration of any
material contract, indenture, mortgage, agreement or instrument to which it is a
party or by which an of its properties may be bound.
(iii) the Trustee has full power, authority and right to execute,
deliver and perform its duties and obligations as set forth herein and in each
Series Supplement to which it is a party and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust Agreement;
(iv) this Trust Agreement has been duly executed and delivered by the
Trustee and constitutes the legal, valid and binding obligation of the Trustee,
enforceable in accordance with its terms, except as enforcement may be limited
by the applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(v) the Trustee is not in violation, and the execution and delivery of
the Trust Agreement by the Trustee and its performance and compliance with the
terms thereof will not constitute a violation, of an order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Trustee or its properties,
which violation would reasonably be expected to have a material adverse effect
on the condition (financial or otherwise) or operations of the Trustee or its
properties or on the performance of its duties hereunder;
(vi) there are no actions or proceedings against, or investigations
of, the Trustee pending, or, to the knowledge of the Trustee, threatened, before
any court, administrative agency or other tribunal (A) that could reasonably be
expected to prohibit its entering into the Trust Agreement, (B) seeking to
prevent the issuance of the Certificates contemplated by the Trust Agreement or
(C) that could reasonably affect the performance by the Trustee of its
obligations under, or the validity or enforceability against the Trustee of, the
Trust Agreement; and
(vii) no consent, approval, authorization or order of any court,
governmental agency or body is required for the execution, delivery and
performance by the Trustee of, or compliance by the Trustee with, the Trust
Agreement, or for the consummation of the transactions contemplated by the Trust
Agreement, except for
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such consents, approvals, authorizations and orders, if any, that have
been obtained prior to the Closing Date.
The representations and warranties of the Trustee set forth in this
Section 7.10 shall survive the receipt of Underlying Securities by the Trustee
and shall survive the delivery of the Trust Agreement by the Trustee to the
Depositor.
Section 7.11. Indemnification of Trustee by the Depositor; Contribution.
(a) The Depositor agrees, to the extent the Trustee is not reimbursed pursuant
to Section 7.06 hereof, to indemnify the Trustee against, and hold it harmless
from, any loss, expense or liability incurred in connection with any legal
action relating to this Trust Agreement or the Certificates or the performance
of any of the Trustee's duties hereunder, other than any loss, liability or
expense (i) that constitutes a specific liability of the Trustee under this
Trust Agreement or (ii) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Trustee's duties hereunder or by reason of
reckless disregard of the Trustee's obligations and duties hereunder or as a
result of a breach of the Trustee's obligations and duties hereunder.
(b) If the indemnification provided for in the preceding paragraph is
invalid or unenforceable in accordance with its terms, then the Depositor shall
contribute to the amount paid or payable by the Trustee as a result of such
liability in such proportion as is appropriate to reflect the relative benefits
received by the Depositor on one hand and the Trustee as Trustee on the other
hand. For this purpose (i) the benefits received by the Depositor shall be the
aggregate amount received by it upon the sale of such Certificates, less the
costs and expenses of such sale, including the cost of acquisition of the
Underlying Securities or parts thereof evidenced thereby, and (ii) the benefits
received by the Trustee as Trustee shall be the aggregate amount of fees
received by it as Trustee, less costs and expenses incurred by it as Trustee in
relation to such Certificates. If, however, the allocation provided by the
immediately preceding two sentences is not permitted by applicable law, then the
Depositor shall contribute to such amount paid or payable by the Trustee in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Depositor on the one hand and the Trustee on the other
in connection with the actions or omissions which resulted in such liability, as
well as any other relevant equitable considerations.
(c) In case any claim shall be made or action brought against the Trustee
for any reason for which indemnity may be sought against the Depositor as
provided above, the Trustee may promptly notify the Depositor in writing setting
forth the particulars of such claim or action and the Depositor may assume the
defense thereof. In the event that the Depositor assumes the defense, the
Trustee shall have the right to retain separate counsel in any such action but
shall bear the fees and expenses of such counsel unless (i) the Depositor shall
have specifically authorized the retaining of such counsel or (ii) the parties
to such suit include the Trustee and the Depositor, and the Trustee has been
advised in writing by such counsel that one or more legal defenses may be
available to it which may not be available to the Depositor, in which case the
Depositor shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the reasonable fees and expenses to such
counsel.
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(d) The term "liability," as used in this Section 7.11, shall include any
losses, claims, damages, expenses (including without limitation the Trustee's
reasonable costs and expenses) in defending itself against any losses, claims or
investigations of any nature whatsoever.
(e) The obligations of the Depositor under this Section 7.11 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Trustee, and to each person, if any, who controls the Trustee within the meaning
of the Exchange Act.
(f) Notwithstanding anything to the contrary contained in this Section
7.11, the Depositor shall not be liable for settlement of any such claim by the
Trustee entered into without the prior written consent of the Depositor, which
consent shall not be unreasonably withheld.
(g) The indemnity provided in this Section shall survive the termination
or discharge of this Trust Agreement.
Section 7.12. No Liability of the Trustee with Respect to the Underlying
Securities; Certificateholders to Proceed Directly Against the Underlying
Securities Issuer(s). (a) The sole obligor with respect to any Underlying
Security is the Underlying Securities Issuer thereof. The Trustee shall not
have any obligation on or with respect to the Underlying Securities; and its
obligations with respect to Certificates shall be solely as set forth in this
Trust Agreement.
(b) The Trustee is not authorized to proceed against the Underlying
Securities Issuer of any Underlying Security in the event of a default or to
assert the rights and privileges of Certificateholders and has no duty in
respect thereof except as expressly provided herein.
Section 7.13. The Depositor To Furnish Trustee with Names and Addresses of
Certificateholders. The Depositor will furnish to the Trustee within 15 days
after each Record Date with respect to any Distribution Date, and at such other
times as the Trustee may request in writing, within 30 days after receipt by the
Depositor of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Depositor as to the names and addresses of the Certificateholders, in each case
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the sole Registrar, no such
list need be furnished.
Section 7.14 Preservation of Information. The Trustee shall preserve, in
as current a form as is reasonably practicable, the names and addresses of
Certificateholders contained in the most recent list furnished to the Trustee as
provided in Section 7.13, and the names and addresses of Certificateholders
received by the Trustee in its capacity as Registrar, if so acting. The Trustee
may destroy any list furnished to it as provided in Section 7.13, upon receipt
of a new list so furnished.
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Section 7.15. Reports by Trustee. If required, within 60 days after [May
15] of each year, commencing with the year [199_], the Trustee shall transmit to
the Certificateholders, as provided in Section 313(c) of the Trust Indenture
Act, a brief report dated as of such [May 15], if required by Section 313(a) of
the Trust Indenture Act.
Section 7.16. Trustee's Application for Instructions from the Depositor.
Any application by the Trustee for written instructions from the Depositor may,
at the option of the Trustee, set forth in writing any action proposed to be
taken or omitted by the Trustee under this Trust Agreement and the date on
and/or after which such action shall be taken or such omission shall be
effective, if, but only if, the obligations of the Trustee with respect to such
proposed action or omission are not set forth reasonably clearly in these
Standard Terms and the related Series Supplement. The Trustee shall not be
liable for any action taken by, or omission of, the Trustee in accordance with a
proposal included in such application on or after the date specified in such
application (which date shall not be less than ten (10) Business Days after the
date an officer of the Depositor actually receives such application, unless any
such officer shall have consented in writing to any earlier date) unless, prior
to taking any such action (or the effective date in the case of an omission),
the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted; provided, however,
that this provision shall not protect the Trustee from liability for any action
or omission constituting willful misconduct, bad faith or negligence.
[ARTICLE VIII
MARKET AGENT]
[Section 8.01. Market Agent. (a) If specified for a specific Series, on
the Closing Date the Trustee shall enter into a Market Agent Agreement with
Xxxxxx Xxxxxx & Company, Inc., as the initial Market Agent, in the form attached
to the related Series Supplement. The Market Agent shall serve as such under
the terms and provisions hereof and of the Market Agent Agreement. The Market
Agent, including any successor appointed pursuant hereto, shall be a member of
the National Association of Securities Dealers, Inc., have capitalization of at
least $25,000,000, and be authorized by law to perform all the duties imposed
upon it by this Trust Agreement and the Market Agent Agreement. The Market
Agent may be removed at any time by the Trustee, acting at the direction of the
Depositor; provided, however, that such removal shall not take effect until the
appointment of a successor Market Agent. The Market Agent may resign upon 30
days' written notice delivered to the Trustee. The [Depositor] shall use its
best efforts to appoint a successor Market Agent that is a qualified
institution, effective as of the effectiveness of any such resignation or
removal.]
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ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation of All Underlying Securities.
(a) The respective obligations and responsibilities under this Trust Agreement
of the Depositor, and the Trustee (other than the obligations of the Trustee to
make distributions to Holders of the Certificates of any given Series as
hereafter set forth and to provide information reports and information tax
reporting) shall terminate upon the distribution to such Holders of all amounts
held in all the Accounts for such Series and required to be paid to such Holders
pursuant to this Trust Agreement on the Distribution Date coinciding with the
final payment on or other liquidation (which may include redemption or other
purchase thereof by the applicable Underlying Securities Issuer) (or any Advance
with respect thereto) of the last Underlying Security remaining in the Trust for
such Series or the disposition of all property acquired upon liquidation of any
such Underlying Security; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
(b) Written notice of any termination shall be provided as set forth in
Section 10.05.
(c) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Scheduled Distribution Date, or the Distribution
Date coinciding with or next following the earlier to occur of the occurrences
specified in 9.01(a), with respect to the applicable Series of Certificates, the
Trustee shall distribute to each Holder presenting and surrendering its
Certificates (i) the amount otherwise distributable on such Distribution Date in
accordance with Section 4.01 in respect of the Certificates so presented and
surrendered, or (ii) as specified in the applicable Series Supplement, if in
connection with the Trustee's sale of all the remaining Underlying Securities.
Any funds not distributed on such Distribution Date shall be set aside and held
in trust for the benefit of Certificateholders not presenting and surrendering
their Certificates in the aforesaid manner, and shall be disposed of in
accordance with this Section 9.01 and Section 4.01 hereof. Immediately
following the deposit of funds in trust hereunder, the Trust for such Series
shall terminate.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment. (a) This Trust Agreement may be amended from
time to time by the Depositor and the Trustee without the consent of any of the
Certificateholders for any of the following purposes: (i) to cure any ambiguity
or to correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or to provide for any other terms
or modify any other provisions with respect to matters or questions arising
under this Trust Agreement which shall not adversely affect the interests of the
Holders in any material respect; or (ii) to evidence and provide for the
acceptance of
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appointment hereunder of a change in Trustee as Trustee for a Series of
Certificates subsequent to the Closing Date for such Series, and to add to or
change any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the separate Trusts hereunder by
more than one trustee, pursuant to the requirements of Section 5.01 hereof; or
(iii) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Certificate of one or more Series or to
add or change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder; or (iv) to provide for the issuance of a new Series of Certificates
pursuant to a Series Supplement issued hereunder pursuant to Sections 5.01 and
5.11 hereof; provided, however, that in the case of any amendment the Rating
Agency Condition shall be satisfied with respect to such amendment and that no
such amendment shall cause any Trust created hereunder to fail to qualify as a
fixed investment trust for federal income tax purposes.
(b) Without limiting the generality of the foregoing, with respect to any
Series this Trust Agreement may also be modified or amended from time to time by
the Depositor and the Trustee with the consent of the Holders of Certificates
representing the Required Percentage--Amendment of the aggregate Voting Rights
of those Certificates to which such modification or amendment relates for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Trust Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that no such amendment
shall (i) reduce in any manner the amount of, or delay the timing of, payments
received on Underlying Securities which are required to be distributed on any
Certificate without the consent of the Holders of such Certificates, (ii)
adversely affect in any material respect the interests of the Holders of any
Series (or Class within such Series) of Certificates in a manner other than as
described in (i), without the consent of the Holders of Certificates of such
Series or Class evidencing not less than the Required Percentage--Amendment of
the aggregate Voting Rights of such Series or Class or (iii) reduce the
percentage of aggregate Voting Rights required by (ii) as described in (ii),
without the consent of the Holders of all Certificates of such Series or Class
then Outstanding.
Notwithstanding any other provision of this Trust Agreement, for purposes
of the giving or withholding of consents pursuant to this Section 10.01,
Certificates registered in the name of the Depositor or the Trustee or any
affiliate thereof shall be entitled to Voting Rights with respect to matters
affecting such Certificates; and provided, further, that in the event the Rating
Agency Condition is not satisfied with respect to such modification or
amendment, the Required Percentage--Amendment shall be increased to require an
aggregate percentage of the aggregate Voting Rights in the amount specified in
the applicable Series Supplement. Notwithstanding any other provision of this
Trust Agreement, this Section 10.02(b) shall not be amended without the
unanimous consent of the Holders of all such Certificates.
(c) Promptly after the execution of any such amendment or modification,
the Trustee shall furnish a copy of such amendment or modification to each
Certificateholder of the affected Series or Class and to the Rating Agency. It
shall not be necessary for the consent of Certificateholders under this Section
to approve the particular form of any
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proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Section 10.02. Limitation on Rights of Certificateholders. (a) The death
or incapacity of any Certificateholder shall not operate to terminate this Trust
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
(b) No Certificateholder of a given Series shall have any right to
vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of any Trust, or the obligations of
the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Trust
Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have any right by
virtue of any provision of this Trust Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Trust Agreement, unless (i) such Holder previously shall have given to
the Trustee a written notice of breach and of the continuance thereof, (ii)
the Holders of Certificates of such Series evidencing not less than the
Required Percentage--Remedies of the aggregate Voting Rights of such Series
shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therin or thereby, (iii)
the Trustee, for 15 days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding, (iv) no direction inconsistent with such
written request has been given to the Trustee during such 15-day period by
Certificateholders evidencing not less than the Required Percentage--
Remedies of the aggregate Voting Rights of such Series. It is understood
and agreed that the Trustee shall not be obligated to make any
investigation of matters arising under this Trust Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any Certificateholders unless such
Certificateholders have offered to the Trustee the reasonable indemnity
referred to above. It is further understood and agreed, and expressly
covenanted by each Certificateholder of each Series with every other
Certificateholder of such Series and the Trustee, that no one or more
Holders of Certificates of such Series shall have any right in any manner
whatever by virtue of any provision of this Trust Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the
Certificates of such Series, or to obtain or seek to obtain priority over
or preference to any other such Holder, or to enforce any right under this
Trust Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders of such Series. For
the protection and enforcement of the provisions of
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this Section, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
Section 10.03. Governing Law. THIS TRUST AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK AND
WITHOUT GIVING EFFECT TO SUCH STATE'S PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04. Notices. (a) All directions, demands and notices hereunder
shall be in writing and shall be delivered as set forth in the applicable Series
Supplement.
(b) Any notice required to be provided to a Holder of a Registered
Certificate shall be given by first class mail, postage prepaid, at the last
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Trust Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
(c) Any and all notices to be given to the Depositor shall be deemed
to have been duly given if sent by facsimile transmission to the Depositor at 00
Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: President, through
facsimile transmission number (901) __________, telephone confirmation number
(000) 000-0000. The Depositor may change this information by written notice to
the Trustee.
(d) Any and all notices to be given to the Trustee shall be deemed to
have been duly given if sent by facsimile transmission to the Trustee at
_____________________, Attention: Corporate Trust Trustee Administration,
facsimile transmission number (____) _________, telephone confirmation number
(____) ________. The Trustee may change this information by notice to the
Depositor.
(e) Any and all notices to be given to the Swap Counterparty, if any,
will be specified in the Series Supplement.
Section 10.05. Notice to Rating Agencies. (a) The Trustee shall use its
best efforts promptly to provide notice to each Rating Agency with respect to
each of the following of which it has actual knowledge:
(i) any change or amendment to this Trust Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the final payment to Holders of the Certificates of any
Class;
(iv) any change in the location of the Certificate Account; and
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(v) any event that would result in the inability of the
Trustee to make Advances.
(b) In addition, the Trustee shall promptly furnish to each Rating
Agency copies of each report to Certificateholders described in
Section 4.02.
(c) Any such notice pursuant to this Section shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed
by first class mail, postage prepaid, or by express delivery service to
each Rating Agency at the address specified below or in the applicable
Series Supplement.
(d) (i) Any and all notices to be given to Moody's shall be deemed to
have been duly given if sent by facsimile transmission to Moody's at
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: CBO/CLO Monitoring Department, facsimile transmission
number (000) 000-0000, telephone confirmation number (000) 000-0000.
Moody's may change this information by notice to the Depositor and the
Trustee.
(ii) Any and all notices to be given to S&P shall be deemed to have
been duly given if sent by facsimile transmission to S&P at Standard &
Poor's Rating Group, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Structured Finance Surveillance Group, facsimile transmission number (212)
000-0000, telephone confirmation number (000) 000-0000. S&P may change this
information by notice to the Depositor and the Trustee.
Section 10.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Trust Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Trust Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Trust Agreement or of
the Certificates or the rights of the Holders thereof.
Section 10.07. Grant of Security Interest. (a) Its is the express intent of
the parties hereto that each conveyance of any Underlying Securities by the
Depositor to the Trustee be, and be construed as, a sale of the Underlying
Security by the Depositor and not a pledge of any Underlying Securities by the
Depositor to secure a debt or other obligation of the Depositor.
(b) In the event that, notwithstanding the aforementioned intent of
the parties, any Underlying Securities are held to be property of the
Depositor, then, (x) it is the express intent of the parties that such
conveyance be deemed a pledge of such Underlying Securities by the
Depositor to the Trustee to secure a debt or other obligation of the
Depositor and (y)(1) this Trust Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York, or
such other State as may be specified in the related Series Supplement;
(2) the conveyance provided for in Section 2.01 hereof shall be deemed to
be a grant by the Depositor to the Trustee of a security interest in all
the Depositor's right, title
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and interest in and to such Underlying Securities and all amounts payable
to the holders of such Underlying Securities in accordance with the terms
hereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property including
all amounts from time to time held or invested in the applicable
Certificate Account, whether in the form of cash, instruments, securities
or other property; (3) the obligations secured by such security agreement
shall be deemed to be all the Depositor's obligations under this Trust
Agreement, including the obligation to provide to the Certificateholders
the benefits of this Trust Agreement relating to such Underlying Securities
and the applicable Trust; and (4) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or
acknowledgements, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of
perfecting such security interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee a security interest
in the Underlying Securities and all other property described in
clause(y)(2) of the preceding paragraph, for the purpose of securing to
the Trustee the performance by the Depositor of the obligations described
in clause(y)(3) of the preceding paragraph. Notwithstanding the foregoing,
the parties hereto intend the Grant pursuant to Section 2.01 to be a true,
absolute and unconditional sale of the Underlying Securities and assets
constituting the applicable Trust by the Depositor to the Trustee.
(c) The Depositor and the Trustee shall to the extent consistent with
this Trust Agreement, take such actions as may be necessary to ensure that,
if this Trust Agreement were deemed to create a security interest in the
Underlying Securities, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will
be maintained as such for so long as any of the Underlying Securities
remain outstanding. Without limiting the generality of the foregoing, the
Trustee shall file, or shall cause to be filed, all filings necessary to
maintain the effectiveness of any original filings necessary under the
Uniform Commercial Code as in effect in any jurisdiction to perfect the
Trustee's security interest in or lien on the Underlying Securities,
including (x) continuation statements and (y) such other statements as may
be occasioned by (1) any change of name of the Depositor or the Trustee,
(2) any change of location of the place of business or the chief executive
office of the Depositor or (3) any transfer of any interest of the
Depositor in any Underlying Security.
Section 10.08. Nonpetition Covenant. Notwithstanding any prior termination
of this Trust Agreement, each of the Trustee (including any Sub-Administrative
Agent, Authenticating Agent, or Paying Agent) and the Depositor agrees that it
shall not, until the date which is one year and one day after the Closing Date
acquiesce, petition or otherwise invoke or cause the Underlying Securities
Issuer to invoke the process of the United States of America, any State or other
political subdivision thereof or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
for the purpose of commencing or sustaining a case by or against the Underlying
Securities Issuer under a Federal or state bankruptcy, insolvency or similar law
or appointing a receiver liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the
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Underlying Securities Issuer or all or any part of the property or assets of the
Underlying Secuirities Issuer or ordering the winding up or liquidation of the
affairs of the Underlying Securities Issuer.
Section 10.09. No Recourse. Neither the Trustee (including any Sub-
Administrative Agent, Authenticating Agent, or Paying Agent) nor the Depositor
shall have any recourse to the Underlying Secuirites, except for as specifically
provided in the related Series Supplement.
Section 10.10. Article and Section References. All article and section
references used in these Standard Terms, unless otherwise provided, are to
articles and sections in these Standard Terms.
Section 10.11. Counterparts. These Standard Terms may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute one and the
same instrument.
Section 10.12. Trust Indenture Act Controls. This Trust Agreement is
subject to the provisions of the Trust Indenture Act and if any provision of
this Trust Agreement limits, qualifies or conflicts with another provision
hereof which is required to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required provision shall control.
The Trustee agrees to take all actions within its control to prevent these
Standard Terms, as supplemented by any Series Supplements, from failing to
qualify under the Trust Indenture Act.
In Witness Whereof, the Depositor and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
Southpoint Structured Assets, Inc., as
Depositor
By:
------------------------------------
Name:
Title:
[Trustee], as Trustee
By:
------------------------------------
Name:
Title:
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Reconciliation and tie between the Trust Agreement dated as of _________,
199__, and the Trust Indenture Act of 1939 as amended. This reconciliation does
not constitute part of the Trust Agreement.
Trust Indenture Act
of 1939 Section Trust Agreement Section
310(a)(1) 7.07
(a)(2) 7.07
(a)(5) 7.07
312(a) 7.13
313(a) 7.15
314(a) 3.10
(c)(1) 1.03
(c)(2) 1.03
(e) 1.03
315(a)(1) 7.01
(a)(2) 7.03
(b) 7.01(d)
(d) 7.01(c)
316(a)(1)(A) 5.18
(a)(1)(B) 5.19
(b) 5.20
(c) 1.03(b)
317(a)(1) 5.17
(b) 5.12
318(a) 10.12
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