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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 16, 1997
-------------
Structured Products Corp.
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(Exact name of registrant as specified in its charter)
Delaware 33-55860 13-3692801
- ---------------------------- ------------------------ --------------
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification
Number)
Seven World Trade Center
Room 33-130, 33rd Floor
New York, NY 10048
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(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code: (212) 783-6645
--------------
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
Item 1. Changes in Control of Registrant.
Not Applicable.
Item 2. Acquisition or Disposition of Assets.
Not Applicable.
Item 3. Bankruptcy or Receivership.
Not Applicable.
Item 4. Changes in Registrant's Certifying Accountants.
Not Applicable.
Item 5. Other Events.
Not Applicable.
Item 6. Resignations of Registrant's Directors.
Not Applicable.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Businesses Acquired.
Not Applicable.
(b) Pro Forma Financial Information.
Not Applicable.
(c) Exhibits.
1. Base Trust Agreement, dated as of June 16, 1994, and
Series IBM 1997-4 Supplement, dated as of June 16, 1997, between Structured
Products Corp. and First Trust of New York, National Association, as Trustee.
2. Tax Opinion of Orrick, Herrington & Sutcliffe LLP dated
June 16, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
STRUCTURED PRODUCTS CORP.
Date: June 20, 1997 By: /s/ Timothy P. Beaulac
----------------------------------
Timothy P. Beaulac
Vice President and Finance Officer
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EXHIBIT INDEX
Exhibit Description
1. Base Trust Agreement, dated as of June 16, 1994, and
Series IBM 1997-4 Supplement, dated as of June 16,
1997, between Structured Products Corp. and First Trust
of New York, National Association, as Trustee.
2. Tax Opinion of Orrick, Herrington & Sutcliffe LLP
dated June 16, 1997.
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Exhibit 1.
===============================================================================
BASE TRUST AGREEMENT
between
STRUCTURED PRODUCTS CORP.
Depositor
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
Trustee
Dated as of June 16, 1997
===============================================================================
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND AGREEMENT PROVISIONS*
Trust Indenture
Act Section Agreement Section
310(a)(1) .................... 8.6(a)
(a)(2) .................... 8.6(a)
(a)(3) .................... 8.10
(a)(4) .................... 8.1(d)
(a)(5) .................... 8.6(a)
(b) .................... 8.6(b), 8.7
(c) .................... Not Applicable
311(a) .................... 6.8
(b) .................... 6.8
312(a) .................... 3.19, 3.20(a)
(b) .................... 3.20(b)
(c) .................... 3.20(c)
313(a) .................... 3.21
(b) .................... 3.21
(c) .................... 3.21
(d) .................... 3.21
314(a) .................... 6.1(a), 6.1(b)
(b) .................... 6.1(c), 6.1(d)
(c)(1) .................... 6.1(f)
(c)(2) .................... 6.1(f)
(c)(3) .................... 6.1(f)
(d)(1) .................... 6.1(e)
(d)(2) .................... 6.1(e)
(d)(3) .................... Not Applicable
(e) .................... 6.1(f)
315(a) .................... 8.1(c)
(b) .................... 8.1(f)
(c) .................... 8.1(a)
(d) .................... 8.1(c)
(d)(1) .................... 8.1(c)
(d)(2) .................... 8.1(c)
(d)(3) .................... 8.1(c)
(e) .................... 8.5(c)
316(a)(1)(A) .................... 5.17
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* This reconciliation and tie shall not, for any purpose, be deemed to
be part of the within agreement.
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316(a)(1)(B) .................... 5.18
316(a)(2) .................... Not Applicable
316(b) .................... 5.6(f), 4.1
316(c) .................... 5.7
317(a) .................... 3.12
317(b) .................... 5.14
318(a) .................... 10.12
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Assumptions
Section 1.1. Definitions................................................................................. 1
Section 1.2. Rules of Construction....................................................................... 15
ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts; Assignment of Term Assets............................... 16
Section 2.2. Acceptance by Trustee....................................................................... 16
Section 2.3. Repurchase or Substitution of Certain Term Assets by the Term Asset
Provider............................................................................................. 17
Section 2.4. Representations and Warranties of the Depositor and Representations,
Warranties and Covenants of the Administrative Agent................................................. 18
Section 2.5. Breach of Representation, Warranty or Covenant.............................................. 20
Section 2.6. Agreement to Authenticate and Deliver Certificates.......................................... 20
Section 2.7. Statement of Intent......................................................................... 20
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust................................................................ 20
Section 3.2. Sub-Administration Agreements Between Administrative Agent or
Trustee and Sub-Administrative Agents................................................................ 21
Section 3.3. Successor Sub-Administrative Agents......................................................... 22
Section 3.4. Liability of the Administrative Agent....................................................... 22
Section 3.5. No Contractual Relationship Between Certain Sub-Administrative
Agents and Trustee or Certificateholders............................................................. 23
Section 3.6. Assumption or Termination of Sub-Administration Agreements by
Trustee.............................................................................................. 23
Section 3.7. Collection of Certain Term Asset Payments................................................... 24
Section 3.8. Collections by Sub-Administrative Agent..................................................... 24
Section 3.9. Certificate Account......................................................................... 24
Section 3.10. Investment of Funds in the Accounts........................................................ 25
Section 3.11. Maintenance of Credit Support.............................................................. 26
Section 3.12. Realization Upon Defaulted Term Assets..................................................... 26
Section 3.13. Retained Interest.......................................................................... 28
Section 3.14. Administrative Agent's Compensation and Reimbursement...................................... 28
Section 3.15. Statement as to Compliance................................................................. 28
Section 3.16. Independent Public Accountants' Administration Report...................................... 29
Section 3.17. Access to Certain Documentation............................................................ 29
Section 3.18. Duties of the Administrative Agent......................................................... 30
Section 3.19. Depositor to Furnish Names and Addresses of Holders to Trustee............................. 30
Section 3.20. Preservation of Information, Communications to Holders..................................... 30
Section 3.21. Reports by Trustee......................................................................... 30
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ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions............................................................................... 31
Section 4.2. Reports to Certificateholders............................................................... 31
Section 4.3. Advances.................................................................................... 32
Section 4.4. Compliance with Withholding Requirements.................................................... 33
Section 4.5. Optional Exchange........................................................................... 33
ARTICLE V
The Certificates
Section 5.1. The Certificates............................................................................ 35
Section 5.2. Execution, Authentication and Delivery...................................................... 39
Section 5.3. Temporary Certificates...................................................................... 39
Section 5.4. Registration; Registration of Transfer and Exchange......................................... 40
Section 5.5. Mutilated, Destroyed, Lost and Stolen Certificates.......................................... 43
Section 5.6. Distribution of Interest; Interest Rights Preserved......................................... 43
Section 5.7. Persons Deemed Owners....................................................................... 44
Section 5.8. Cancellation................................................................................ 45
Section 5.9. Global Securities........................................................................... 45
Section 5.10. Notices to Depositary.............................................................. 46
Section 5.11. Definitive Certificates.................................................................... 46
Section 5.12. Currency of Distributions in Respect of Certificates....................................... 47
Section 5.13. Conditions of Authentication and Delivery of New Series.................................... 48
Section 5.14. Appointment of Paying Agent................................................................ 49
Section 5.15. Authenticating Agent....................................................................... 49
Section 5.16. Events of Default.......................................................................... 51
Section 5.17. Control by Holders......................................................................... 51
Section 5.18. Waiver of Past Defaults.................................................................... 51
ARTICLE VI
The Depositor and the Administrative Agent
Section 6.1. Preparation and Filing of Exchange Act Reports; Obligations of the
Depositor and the Administrative Agent............................................................... 52
Section 6.2. Merger or Consolidation of the Depositor or the Administrative Agent........................ 55
Section 6.3. Limitation on Liability of the Depositor and the Administrative Agent....................... 56
Section 6.4. Limitation on Resignation of the Administrative Agent....................................... 57
Section 6.5. Rights of the Depositor in Respect of the Administrative Agent.............................. 57
Section 6.6. Depositor May Purchase Certificates......................................................... 58
Section 6.7. The Administrative Agent and Other Parties.................................................. 58
Section 6.8. Preferential Collection of Claims Against Depositor......................................... 58
ARTICLE VII
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Administrative Agent Termination Events
Section 7.1. Administrative Agent Termination Events..................................................... 58
Section 7.2. Trustee to Act; Appointment of Successor.................................................... 60
Section 7.3. Notification to Certificateholders.......................................................... 61
Section 7.4. Waiver of Administrative Agent Termination Events........................................... 61
ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults....................................................... 62
Section 8.2. Certain Matters Affecting the Trustee....................................................... 64
Section 8.3. Trustee Not Liable for Recitals in Certificates or Term Assets.............................. 66
Section 8.4. Trustee May Own Certificates................................................................ 66
Section 8.5. Trustee's Fees and Expenses; Indemnification................................................ 66
Section 8.6. Eligibility Requirements for Trustee........................................................ 67
Section 8.7. Resignation or Removal of the Trustee....................................................... 67
Section 8.8. Successor Trustee........................................................................... 68
Section 8.9. Merger or Consolidation of Trustee.......................................................... 68
Section 8.10. Appointment of Co-Trustee or Separate Trustee.............................................. 69
Section 8.11. Appointment of Office or Agency............................................................ 70
Section 8.12. Representations and Warranties of Trustee.................................................. 70
Section 8.13. Trustee to Act Only in Accordance With This Agreement or Pursuant
to Instructions of Certificateholders................................................................ 70
Section 8.14. Accounting and Reports to Certificateholders, Internal Revenue
Service and Others................................................................................... 71
Section 8.15. Signature on Returns....................................................................... 71
ARTICLE IX
Termination
Section 9.1. Termination upon Purchase or Liquidation of All Term Assets................................. 71
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment.................................................................................. 72
Section 10.2. Counterparts............................................................................... 74
Section 10.3. Limitation on Rights of Certificateholders................................................. 74
Section 10.4. Governing Law.............................................................................. 75
Section 10.5. Notices.................................................................................... 75
Section 10.6. Severability of Provisions................................................................. 75
Section 10.7. Notice to Rating Agency.................................................................... 75
Section 10.8. Grant of Security Interest................................................................. 76
Section 10.9. Nonpetition Covenant....................................................................... 77
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Section 10.10. No Recourse............................................................................... 77
Section 10.11. Article and Section References............................................................ 77
Section 10.12. Conflict with Trust Indenture Act......................................................... 77
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TRUST AGREEMENT dated as of June 16, 1997, between STRUCTURED
PRODUCTS CORP., a Delaware corporation, as Depositor, and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national
banking association, as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the
execution and delivery of this Trust Agreement to provide for one or more Series
(and one or more Classes within each such Series) of Trust Certificates,
issuable from time to time as provided in this Agreement. Each such Series (or
each Class within such Series) of Certificates will be issued only under a
separate Series Supplement to this Agreement duly executed and delivered by the
Depositor, the Administrative Agent, if any, specified in the applicable Series
Supplement, and the Trustee. All representations, covenants and agreements made
herein by each of the Depositor, the Administrative Agent, if any, and the
Trustee are for the benefit and security of the Certificateholders and, to the
extent provided in the applicable Series Supplement, for the benefit and
security of any Credit Support Provider. The Depositor is entering into this
Agreement, and the Trustee is accepting the trusts created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
ARTICLE I
Definitions and Assumptions
Section 1.1. Definitions. Except as otherwise specified herein
or in the applicable Series Supplement or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Agreement.
"Account": As defined in Section 3.10.
"Accounting Date": With respect to any Series, if applicable,
as defined in the related Series Supplement.
"Administrative Agent": With respect to any Series of
Certificates, the Person, if any, specified in the applicable Series Supplement
for such Series (which Person shall have agreed pursuant to such Series
Supplement to assume all the duties, obligations, responsibilities and
liabilities of the Administrative Agent as set forth in this Agreement and such
Series Supplement with respect to such Series), until a successor Person shall
have become the Administrative Agent pursuant to the applicable provisions of
this Agreement and such Series Supplement, and thereafter "Administrative Agent"
shall mean such successor Person.
"Accreted Amount": With respect to each Series, if
applicable, as defined in the related Series Supplement.
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"Administrative Agent": With respect to each Series, if
applicable, as defined in the related Series Supplement.
"Administrative Agent Termination Event": As defined in
Section 7.1.
"Administrative Fee": With respect to each Series, if
applicable, as defined in the related Series Supplement.
"Advance": As defined in Section 4.3.
"Affiliate": With respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement": With respect to any Series of Certificates, this
Trust Agreement and all amendments hereof and, unless the context otherwise
requires, the related Series Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 5.1
with respect to the Certificates of any Series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the
applicable Series Supplement, for any Distribution Date in respect of a given
Series or Class, the sum of (i) all amounts actually received on or with respect
to the Term Assets (including Liquidation Proceeds and investment income on
amounts in the Accounts) with respect to such Series during the related
Collection Period, (ii) all amounts received pursuant to any Credit Support
Instruments with respect to such Series for such Distribution Date and (iii) all
other amounts, if any, specified by the applicable Series Supplement.
"Basic Documents": With respect to any Series, if applicable,
as defined in the related Series Supplement.
"Board of Directors": Either the Board of Directors of the
Depositor or any executive or committee of such Board duly authorized under
applicable law to act on behalf of such Board.
"Board Resolution": A copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification and delivery to the Trustee.
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"Business Day": With respect to any Place of Distribution
specified pursuant to Section 5.1, any day that is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies in such
Place of Distribution are authorized or obligated by law, regulation or
executive order to close or any day which is not a business day with respect to
the Term Assets, except as otherwise specified pursuant to Section 5.1.
"Calculation Agent": With respect to each Series, as defined
in the related Series Supplement.
"Call Premium Percentage": With respect to any Series (or
Class within such Series), if applicable, as defined in the related Series
Supplement.
"Certificate Account": As defined in Section 3.9.
"Certificate Owners": As defined in Section 5.9.
"Certificate Principal Balance": With respect to an
Outstanding Certificate, as determined at any time, the maximum amount that the
Holder thereof is entitled to receive as distributions allocable to principal
payments on the Term Assets. The Certificate Principal Balance, if any, of any
Class within a given Series (other than those Classes, if any, specified in the
related Series Supplement), as of any date of determination, shall be equal to
the aggregate initial Certificate Principal Balance thereof less the sum of (i)
all amounts allocable to prior distributions made to such Class in respect of
principal of the Term Assets and (ii) any reductions attributable to
Certificates surrendered in exchange for Term Assets, as and to the extent
provided in the applicable Series Supplement.
"Certificate Register" and "Certificate Registrar": As
respectively defined in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": Any Trust Certificates authorized by, and
authenticated and delivered under, this Agreement.
"Class": With respect to any Series, any one of the classes
of Certificates of such Series, each consisting of Certificates having identical
terms.
"Closing Date": With respect to any Series, the day on which
Certificates of such Series are first executed, authenticated and delivered.
"Code": The Internal Revenue Code of 1986 and Treasury
Regulations promulgated thereunder.
"Collection Period": With respect to any Distribution Date
for a Series (or Class within such Series), the period specified in the related
Series Supplement.
"Commission": The Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution and delivery of this Agreement such Commission is not
existing and performing the duties now assigned to it, then the body then
performing such duties.
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"Corporate Trust Office": The principal corporate trust office
of the Trustee located at the address set forth in the related Series Supplement
or such other addresses as the Trustee may designate from time to time by notice
to the Holders, the Administrative Agent, if any, and the Depositor, or the
principal corporate trust office of any successor Trustee (or such other
addresses as a successor Trustee may designate from time to time by notice to
the Holders, the Administrative Agent, if any, and the Depositor).
"Credit Support": With respect to any Series (or any Class
within such Series), a letter of credit, surety bond, swap agreement, put or
call option or other asset intended to support or ensure the timely or ultimate
distributions of amounts due in respect of all or certain of the Term Assets for
such Series or Class, which in each case is specified as such in the related
Series Supplement.
"Credit Support Instrument": The instrument or document
pursuant to which the Credit Support for a given Series (or any Class within
such Series) is provided, as specified in the applicable Series Supplement.
"Credit Support Provider": With respect to any Series (or any
Class within such Series), the Person, if any, that will provide any Credit
Support with respect to all or a portion of the Term Assets for such Series or
Class as specified in the applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date specified
as such in the related Series Supplement. For purposes of this Agreement, any
Term Asset acquired by the Depositor after the applicable Cut-off Date but prior
to the applicable Closing Date and included in the related Trust as of such
Closing Date shall be deemed to have been Outstanding as of such Cut-off Date
and references to the principal balance of such Term Asset as of such Cut-off
Date shall be deemed to be to the principal balance of such Term Asset as of the
date on which it was acquired by the Depositor.
"Definitive Certificates": As defined in Section 5.9.
"Deleted Term Asset": A Term Asset replaced or to be replaced
by a Qualified Substitute Term Asset.
"Depositary": With respect to the Certificates of any Series
(or Class within such Series) issuable in whole or in part in the form of one or
more Global Securities, the Person designated as Depositary by the Depositor
pursuant to Section 5.1 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Certificates of any such Series or Class shall mean
the Depositary with respect to the Certificates of that Series or Class.
"Depositor": Structured Products Corp., a Delaware
corporation, and, if a successor Person shall have become the Depositor pursuant
to any applicable provisions of this Agreement, "Depositor" shall mean such
successor Person.
"Depositor Order" or "Depositor Request": A written order or
request, respectively, signed in the name of the Depositor by any two of its
Chief Executive Officer, Chief Financial Officer, Chief Operating Officer,
President, a Vice President, its Treasurer, an
4
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Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee; provided that (i) any such order or request shall be signed by
either the President or a Vice President and (ii) no person may sign in a dual
capacity.
"Depository Agreement": If applicable, the agreement pursuant
to which the Depositary will agree to act as Depositary with respect to any
Series (or Class within such Series) of Certificates in accordance with Section
5.9.
"Discount Certificate": Any Certificate that is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
any other Certificate designated by the Depositor as issued with original issue
discount for United States Federal income tax purposes.
"Distribution Date": With respect to any Series (or Class
within such Series) of Certificates, each date specified as a "Distribution
Date" for such Series (or Class) in the related Series Supplement.
"Dollar" or "$" or "USD": Such currency of the United States
as at the time of payment is legal tender for the payment of public and private
debts.
"Eligible Account": Either (i) an account or accounts
maintained with a Federal or State chartered depository institution or trust
company the long term unsecured debt obligations of which are rated by the
Rating Agency the higher of (x) at least the then current long-term rating of
the Term Assets or (y) in one of its two highest long-term rating categories
(unless otherwise specified in the Series Supplement) at the time any amounts
are held in deposit therein or (ii) a trust account or accounts maintained as a
segregated account or as segregated accounts and held by a Federal or State
chartered depository institution or trust company in trust for the benefit of
the Certificateholders provided, however, that such depositary institution or
trust company has a long-term rating in one of the four highest categories by
the Rating Agency.
"Event of Default": With respect to any Series (or Class
within such Series) of Certificates, as specified in the related Series
Supplement.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Exchange Rate Agent": With respect to any Series (or Class
within such Series) of Certificates, if applicable, the Depositor or its agent
so specified in the related Series Supplement.
"Executive Officer": With respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Vice President, the Secretary or the Treasurer of such
corporation; with respect to any partnership, any general partner thereof.
"Extraordinary Trust Expense": With respect to any Series, as
specified in the related Series Supplement.
"Final Scheduled Distribution Date": With respect to each
Series, as defined in the Series Supplement.
"Fixed Pass Through Rate": With respect to any Fixed Rate
Certificate, as defined in the related Series Supplement.
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"Fixed Rate Certificate": A Certificate that provides for a
payment of interest at a Fixed Pass Through Rate.
"Floating Pass Through Rate": With respect to any Floating
Rate Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate": A Certificate that provides for
the payment of interest at a Floating Pass Through Rate determined periodically
by reference to a formula specified pursuant to Section 5.1 and the related
Series Supplement.
"Foreign Currency": A currency issued by the government of
any country other than the United States or a composite currency the value of
which is determined by reference to the values of the currencies of any group of
countries.
"Global Security": A Certificate evidencing all or part of a
Series (or Class within such Series) of Certificates, issued to the Depositary
for such Series or Class in accordance with Section 5.9 and bearing the legend
prescribed therein.
"Grant": To sell, convey, assign, transfer, create, grant a
lien upon and a security interest in and right of set-off against, deposit, set
over and confirm to the Trustee pursuant to this Agreement and a related Series
Supplement; and the terms "Granted" and "Granting" have the meanings correlative
to the foregoing. A Grant of any Term Assets or of any other instrument shall
include all rights, powers and options (but none of the obligations) of the
Granting party thereunder, including the immediate and continuing right to claim
for, collect, receive and give receipt for principal, premium, if any, and
interest payments in respect of such Term Assets and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise, and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Guaranteed Investment Contract": With respect to any Series
(or Class within such Series), a guaranteed investment contract or surety bond
provided for in the related Series Supplement, Granted as part of the Trust or
to the Trustee for the benefit of the Certificateholders for such Series,
providing for the investment of funds in a related Account or related Accounts
and insuring a minimum or a fixed rate of return on the investment of such
funds, which contract or surety bond shall be an obligation of an insurance
company or other entity whose rating at the time of purchase of such guaranteed
investment contract or surety bond is no lower than the rating on the Term
Assets and shall satisfy any other requirements specified in such Series
Supplement.
"Holder": The holder of a Certificate.
"Independent": When used with respect to any specified Person
means that the Person specifies he or she (1) is in fact independent of the
Depositor and the Administrative Agent, if any, and of any Affiliate of any of
the foregoing Persons, (2) does not have any direct or indirect financial
interest in the Depositor or the Administrative Agent, if any, or in any
Affiliate of either of the foregoing Persons which is material with respect to
such Person and (3) is not connected with the Depositor or the Administrative
Agent, if any, as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
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"Independent Certificate" means a certificate of an
Independent Person, as required by the TIA.
"Letter of Credit": With respect to any Series or Class within
such Series, the letter of credit, if any, providing for the payment of all or a
portion of amounts due in respect of such Series or Class, issued to the Trustee
for the benefit of the Holders of such Series or Class, issued by the related
Credit Support Provider, all as specified in the related Series Supplement.
"Limited Guarantor": With respect to the Term Assets relating
to any Series (or Class within such Series), a Person specified in the related
Series Supplement as providing a guarantee or insurance policy or other credit
enhancement supporting the distributions in respect of such Series (or Class) as
and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or Class within
such Series, any guarantee of or insurance policy or other comparable form of
credit enhancement with respect to amounts required to be distributed in respect
of such Series or Class or payments under all or certain of the Term Assets
relating to such Series or Class, executed and delivered by a Limited Guarantor
in favor of the Trustee, for the benefit of the Certificateholders, as specified
in the related Series Supplement.
"Liquidation Proceeds": The amounts received by the
Administrative Agent, if any, or the Trustee in connection with (i) the
liquidation of a defaulted Term Asset or collateral, if any, related thereto or
(ii) the repurchase, substitution or sale of a Term Asset.
"Notional Amount": With respect to any Class of Certificates,
if applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"Officer's Certificate": A certificate signed by any one (or,
if specified in this Agreement or any Series Supplement, more than one)
Executive Officer of the Depositor or Administrative Agent, as applicable, or,
in the case of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel, who may,
except as otherwise expressly provided in this Agreement, be counsel for the
Depositor or the Administrative Agent, if any, acceptable to the Trustee, except
that any opinion of counsel relating to the qualification of any account
required to be maintained pursuant to this Agreement as an Eligible Account must
state that it is an opinion of counsel who is in fact Independent of the
Depositor and the Administrative Agent, if any.
"Optional Exchange Date": With respect to any Series (or
Class with such Series), as defined, if applicable, in the related Series
Supplement.
"Outstanding": With respect to Certificates of a specified
Series (or Class within such Series), as of any date of determination, all such
Certificates theretofore authenticated and delivered under this Agreement and
the related Series Supplement except:
(i) Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation;
and
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(ii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented that
any such Certificates are held by a bona fide purchaser in whose hands
such Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Depositor, or any Affiliate thereof,
shall be disregarded and deemed not to be Outstanding, and the Voting Rights to
which its Holder would otherwise be entitled shall not be taken into account in
determining whether the requisite percentage of aggregate Voting Rights
necessary to effect any such consent or take any such action has been obtained
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates with respect to which the Depositor has provided the
Trustee an Officer's Certificate stating that such Certificates are so owned
shall be so disregarded. Certificates so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee by certifying to such effect in an Officer's
Certificate the pledgee's right so to act with respect to such Certificates and
that the pledgee is not, to the actual knowledge of the Trustee without any duty
of investigation, the Depositor, the Administrative Agent, if any, or any
Affiliate of any thereof so owned. The principal amount or notional amount, as
applicable, of a Discount Certificate that shall be deemed to be Outstanding for
the determination referred to in the foregoing proviso shall be the Certificate
Principal Balance or Certificate Notional Amount, as applicable, with respect
thereto as of the date of such determination, and the principal amount or
notional amount, as applicable, of a Certificate denominated in a Foreign
Currency that shall be deemed to be Outstanding for purposes of the
determination referred to in the foregoing provision shall be the amount
calculated pursuant to Section 5.12(c).
"Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
"Pass Through Rate": With respect to any Series (or Class
within such Series) of Certificates (except certain Discount Certificates and
Certificates entitled to nominal or no interest distributions) the annual rate
at which interest accrues on the Certificates of such Series (or Class), which
may be a fixed rate or a floating rate of interest, determined upon the basis
and in the manner specified in the related Series Supplement.
"Paying Agent": As defined in Section 5.14.
"Percentage Interest": With respect to a Certificate of any
Series or Class within a Series, the portion of such Series or Class evidenced
by such Certificate, expressed as a percentage, equal to the product of (x) a
fraction, the numerator of which is the initial Certificate Principal Balance or
Notional Amount, as applicable, represented by such Certificate and the
denominator of which is the aggregate initial Certificate Principal Balance or
Notional Amount, as applicable, of all the Certificates of such Series or Class
and (y) 100.
"Permitted Investments": With respect to any Series, unless
otherwise specified in the related Series Supplement, any one or more of the
following obligations or securities, provided that the total return specified by
the terms of each such obligation or security is at least equal to the purchase
price thereof:
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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 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 Permitted
Investments only if, at the time of investment, it has the rating
specified in such Series Supplement for Permitted Investments;
(ii) demand and time deposits in, certificates of deposit of,
or banker's acceptances issued by any depository institution or trust
company (including the Trustee or any agent of the Trustee acting in
their respective commercial capacities) incorporated under the laws of
the United States or any State and subject to supervision and
examination by Federal and/or State banking authorities so long as the
commercial paper and/or the short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt obligations of
such holding company) at the time of such investment or contractual
commitment providing for such investment have the rating specified in
such Series Supplement for Permitted Investments; provided, however,
that such rating shall be no lower than the rating on the Term Assets
at the time of purchase of the investments;
(iii) repurchase agreements with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States, with
an entity having the credit rating specified in such Series Supplement
for Permitted Investments;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States or
any State that have the rating specified in such Series Supplement for
Permitted Investments at the time of such investment or contractual
commitment providing for such investment; provided, however, that such
rating shall be no lower than the rating on the Term Assets; provided,
further, that securities issued by any particular corporation will not
be Permitted Investments to the extent that investment therein will
cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Trust for such Series to
exceed 10% of the aggregate outstanding principal balances and amounts
of all the Term Assets and Permitted Investments held as part of the
Trust for such Series;
(v) commercial paper having at the time of such investment
the rating specified in the Series Supplement for Permitted
Investments; and
(vi) a Guaranteed Investment Contract if and only if specified
in the related Series Supplement, provided that the Rating Agency
Condition is met.
"Person": Any individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Distribution": With respect to any Series (or Class
within such Series) of Certificates, the place or places where the principal of
(and premium, if any) and interest on the Certificates of such Series (or Class)
are distributable as specified pursuant to Section 5.1.
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"Predecessor Certificate": With respect to any particular
Certificate, every previous Certificate evidencing all or a portion of the same
interest as that evidenced by such particular Certificate; and, for the purpose
of this definition, any Certificate authenticated and delivered under Section
5.5 in lieu of a lost, destroyed or stolen Certificate shall be deemed to
evidence the same interest as the lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price": With respect to any Term Asset required to
be repurchased by the Term Asset Provider pursuant to Section 2.3 and as
confirmed by an Officer's Certificate from the Administrative Agent, if any, or
the Depositor, as the case may be, to the Trustee, an amount equal to the sum of
(i) the greater of (x) 100% of the principal balance thereof as of the date of
such purchase or (y) if the Term Asset was purchased at a premium above face
value the price paid therefor, (ii) accrued and unpaid interest thereon from the
immediately preceding interest allocation date, or if no interest has been paid
to the Trust with respect thereto, from the Cut-Off Date, in each case at a rate
equal to the Fixed Pass Through Rate or the then applicable Floating Pass
Through Rate, as the case may be, as specified in the applicable Series
Supplement, on the principal balance of such Term Asset as of the close of
business on the Business Day immediately preceding the date of purchase or such
other day as may be specified in the applicable Series Supplement on which such
purchase is to occur, (iii) any unreimbursed Advances and any unpaid
Administrative Fees allocable to such Term Asset, (iv) expenses reasonably
incurred or to be incurred by the Administrative Agent, if any, or the Trustee
in respect of the breach or defect giving rise to the purchase obligation,
including any expenses arising out of the enforcement of the purchase obligation
and (v) any realized losses previously incurred with respect to such Term Asset
and allocated to Certificateholders on or before the date of purchase.
"Qualified Substitute Term Asset": With respect to any
Series, as defined, if applicable, in the related Series Supplement.
"Rating Agency": With respect to any Series (or Class within
such Series), as defined in the related Series Supplement.
"Rating Agency Condition": With respect to any action or
occurrence, unless otherwise specified in the applicable Series Supplement, that
each Rating Agency shall have been given 10 days (or such shorter period
acceptable to each Rating Agency) prior notice thereof and that each Rating
Agency shall have notified the Depositor, the Trustee and the Administrative
Agent, if any, in writing that such action or occurrence will not result in a
reduction or withdrawal of the then current rating of any Certificate of the
applicable Series.
"Record Date": With respect to any Distribution Date for any
Series (or Class within such Series) of Certificates, the date specified in the
related Series Supplement.
"Required Interest": Unless otherwise specified in the related
Series Supplement, with respect to the Outstanding Certificates of any Series or
any Class thereof, the accrued and undistributed interest on the Certificate
Principal Balance or Notional Amount of such Outstanding Certificates computed
at the applicable Pass Through Rate.
"Required Percentage--Amendment": Unless otherwise specified
in the related Series Supplement, 66-2/3% of the aggregate Voting Rights of
Certificates of such Series (or of a designated Class or group of Classes within
such Series) (either voting as separate Classes
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or as a single Class) applicable to such matter, all as specified in the
applicable Series Supplement.
"Required Percentage--Definitive Certificates": Unless
otherwise specified in the related Series Supplement, greater than 50% of the
aggregate Voting Rights of Certificates of such Series.
"Required Percentage--Direction of Trustee": Unless otherwise
specified in the related Series Supplement, greater than 50% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage--Remedies": Unless otherwise specified
in the related Series Supplement, 66-2/3% of the aggregate Voting Rights of
Certificates of such Series.
"Required Percentage--Removal of Trustee": Unless otherwise
specified in the related Series Supplement, greater than 50% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage--Waiver": Unless otherwise specified in
the related Series Supplement, 66-2/3% of the aggregate Voting Rights of
Certificates of such Series.
"Required Premium": If applicable, unless otherwise specified
in the related Series Supplement, with respect to the Certificates of any Series
or any Class thereof, an amount equal to the product, as determined on any
Distribution Date with respect to such Series or Class, of (i) the Required
Principal for such Series or Class and (ii) the Call Premium Percentage for such
Series or Class.
"Required Principal": As determined for any Distribution Date
for a given Series (or Class within such Series), unless otherwise specified in
the related Series Supplement, the amounts on deposit in the Certificate Account
allocable to principal payments on the Term Assets (including from Credit
Support, if any, and Advances, if any, but excluding amounts in respect of
principal payments to the extent that Advances with respect thereto were
distributed as Required Principal on a prior Distribution Date) and required to
be distributed in respect of Certificates of such Series (or Class) in
accordance with the terms of such Certificates and such related Series
Supplement.
"Required Rating": With respect to any Series (or Class within
such Series), the rating category (or categories) specified in the Series
Supplement that, as a condition to the issuance of such Series or Class, is (or
are) the lowest category (or categories) in which the Certificates of such
Series or Class may be categorized by the Rating Agency.
"Requisite Reserve Amount": As of any date with respect to any
Series (or Class within such Series) of Certificates, the amount, if any,
required to be maintained in the Reserve Account, if any, for such Series or
Class as specified in or determined pursuant to the related Series Supplement.
"Reserve Account": An Eligible Account, if any, created and
maintained pursuant to Section 3.11.
"Responsible Officer": With respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or
any other officer of the Trustee customarily
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performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Retained Interest": If applicable, with respect to any Term
Asset, an ownership interest in and a right to a portion of the payments thereon
by the obligor thereof, as specified in the Term Assets Schedule to the related
Series Supplement, held by the Person so specified in such Term Assets Schedule.
"Scheduled Final Distribution Date": With respect to any
Certificate, the date on which all the unpaid principal of (and premium, if any,
on) such Certificate is scheduled, without giving effect to any prepayment,
exchange or early termination, to become due and payable as provided therein and
in the applicable Series Supplement.
"Series": A separate series of Certificates issued pursuant
to this Agreement and a related Series Supplement, which series may be divided
into two or more Classes, as provided in such Series Supplement.
"Series Supplement": An agreement supplemental to this
Agreement that authorizes the issuance of a particular Series (and each Class
within such Series) of Certificates.
"Specified Currency": As defined in the related Series
Supplement.
"State": Any one of the 50 states of the United States or the
District of Columbia.
"Sub-Administration Account": As defined in Section 3.8.
"Sub-Administration Agreement": The written contract, if any,
between the Administrative Agent, if any, specified in the applicable Series
Supplement, or Trustee and a Sub-Administrative Agent and any successor
Administrative Agent or Trustee or Sub- Administrative Agent relating to the
administration of a Term Asset or certain Term Assets as provided in Section
3.2.
"Sub-Administrative Agent": Any Person with which the
Administrative Agent, if any, specified in the applicable Series Supplement, or
the Trustee has entered into a Sub- Administration Agreement and which meets the
qualifications of a Sub-Administrative Agent pursuant to Section 3.2.
"Surety Bond": If so specified in the Series Supplement, with
respect to any Series (or Class within such Series) of Certificates, the surety
bond providing for the distribution under certain circumstances specified in
such Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of such
Certificateholders by the related Credit Support Provider, all as specified in
such Series Supplement.
"Term Asset Provider": With respect to any Term Asset
purchased pursuant to a Term Asset Purchase Agreement, each entity specified as
such in the applicable Series Supplement or its successor in interest.
"Term Asset Purchase Agreement": With respect to certain
Series of Certificates, as designated in the applicable Series Supplement, the
purchase agreement providing for the
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purchase by the Depositor of one or more Term Assets for such Series,
substantially in the form acceptable to the Depositor, provided, that if
required by the applicable Series Supplement, such agreement shall provide for
the repurchase of such Term Assets on the terms set forth in Section 2.3.
"Term Assets": With respect to any Series, the asset or assets
Granted as part of the Trust for such Series or acquired (or, in the case of an
agreement, entered into) by the Trustee for the benefit of the Holders of such
Series and, if and to the extent provided in the applicable Series Supplement,
for the benefit of any Credit Support Provider, all as identified in the Term
Assets Schedule to the related Series Supplement. The Term Assets for any such
Series or the related Trust shall not constitute Term Assets for any other
Series or any other Trust.
"Term Assets Issuer": As defined in the related Series
Supplement.
"Term Assets Schedule": With respect to any Series, a listing
of the Term Assets for such Series as of the Closing Date, including, with
respect to each Term Asset, the obligor and the principal balance thereof, which
shall be attached to such Series Supplement as Schedule A.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated asset or
pool of assets subject hereto, constituting the trust created hereby and by the
related Series Supplement and to be administered hereunder and thereunder,
consisting of those Term Assets and the Credit Support, if applicable, and all
sums distributed in respect thereof that are specified as being part of the
Trust for such Series in the related Series Supplement, all for the benefit of
the Certificateholders of such Series as of any particular time.
"Trustee": With respect to any Series, the Person so specified
in the applicable Series Supplement (which Person shall have agreed pursuant to
such Series Supplement to assume all the duties, obligations, responsibilities
and liabilities of the Trustee as set forth in this Agreement and such Series
Supplement with respect to the related Series of Certificates) for such Series
or any co-trustee appointed pursuant to Section 8.10, until a successor Person
shall have become the Trustee pursuant to the applicable provisions of this
Agreement and the applicable Series Supplement, and thereafter "Trustee" shall
mean such successor Person.
"Trust Termination Event": With respect to any Series, as
specified in the related Series Supplement.
"Uniform Commercial Code": The Uniform Commercial Code as in
effect in the relevant jurisdiction or, with respect to the State of Louisiana,
the equivalent body of statutory and common law.
"United States": The United States of America (including the
States), its territories, its possessions and other areas subject to its
jurisdiction.
"Voting Rights": With respect to any Series (or Class within
such Series) of Certificates, the portion of the aggregate voting rights of the
Certificates of such Series or Class which shall be allocated to any Certificate
as specified in the applicable Series Supplement.
Section 1.2. Rules of Construction. Unless the context
otherwise requires:
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(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts; Assignment of
Term Assets. (a) The Depositor, concurrently with the execution and delivery
hereof, does hereby agree to (i) Grant to the Trustee, on behalf and for the
benefit of the Certificateholders of each given Series of Certificates and
without recourse, all the right, title and interest of the Depositor, including
any security interest therein for the benefit of the Depositor, in, to and under
the Term Assets attributable to each such Series (except for the Term Assets
attributable to such Series which are not Granted by the Depositor, as specified
in the Term Assets Schedule to the applicable Series Supplement), now existing
or hereafter acquired, in each case as identified on the applicable Term Assets
Schedule, and all other assets included or to be included in the respective
Trust for the benefit of the Certificateholders of each such Series or (ii)
deliver to the Trustee for deposit in the Certificate Account an amount, in
immediately available funds in a form acceptable to the Trustee, sufficient to
acquire the Term Assets attributable to such Series, in each case as identified
on the Term Asset Schedule to the applicable Series Supplement, and all other
assets to be included in the respective trust for the benefit of the
Certificateholders of each such Series. Each such Grant will include all
interest, premium (if any) and principal received by or on behalf of the
Depositor of, on or with respect to any such Term Assets due after the
applicable Cut-off Date, and, unless otherwise specified in the Series
Supplement, will exclude (i) all interest, premium (if any) and principal of, on
or with respect to any such Term Assets due on or before the applicable Cut-off
Date and (ii) any Retained Interest in any such Term Asset.
(b) In connection with each Grant referred to in the preceding
paragraph, the Depositor shall, not later than the applicable Closing Date, (i)
deposit the Term Assets for a given Series (except for the Term Assets
attributable to such Series which are to be acquired from a Person other than
the Depositor, as specified on the Term Assets Schedule to the applicable Series
Supplement) with the Trustee by physical delivery of such Term Assets, duly
endorsed, to the Trustee or by causing such Term Assets to be registered by book
entry in the name of the Trustee and (ii) with respect to each such Term Asset,
deliver or cause to be delivered to the Trustee all documents necessary to
transfer ownership of each such Term Asset to the Trustee.
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(c) Unless otherwise specified in the applicable Series
Supplement, the Grant of such Term Assets by the Depositor for a given Series
accomplished hereby and by such Series Supplement is absolute and is intended by
the parties hereto as a sale. The Depositor represents and covenants that the
Term Assets as of the respective Closing Dates will be free and clear of any
right, charge, security interest or lien or claim in favor of the Depositor and,
with respect to any Grant of Term Assets, that the Depositor will as of such
respective Closing Date have the right to Grant the applicable Term Assets to
the Trustee.
Section 2.2. Acceptance by Trustee. (a) With respect to each
Series, the Trustee will acknowledge receipt by it, or by a custodian on its
behalf, of the related Term Assets and the related documents referred to in
Section 2.1, now existing or hereafter acquired, and declares that it will hold
such Term Assets and documents and all other documents delivered to it pursuant
to this Agreement, and that it will hold all such assets and such other assets
(including Term Assets acquired from a Person other than the Depositor)
comprising the Trust for a given Series of Certificates, in trust for the
exclusive use and benefit of all present and future Certificateholders of such
Series and for the purposes and subject to the terms and conditions set forth in
this Agreement.
(b) The Trustee, or a custodian on its behalf, shall review
all documents received by it pursuant to Section 2.1 within 45 days after
receipt thereof. If in the process of reviewing such documents the Trustee or
such custodian discovers any document or documents to be missing or defective,
the Trustee shall promptly (but in any event within 10 Business Days) so notify
the Depositor and the Administrative Agent, if any. In addition, upon the
discovery by the Depositor, the Administrative Agent, if any, or the Trustee of
a breach of any of the representations and warranties made by any Term Asset
Provider in the related Term Asset Purchase Agreement, if any, in respect of any
Term Asset that materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties hereto (but in any event within 10 Business Days).
Section 2.3. Repurchase or Substitution of Certain Term Assets
by the Term Asset Provider. (a) If and to the extent provided for in a Series
Supplement relating to a given Series of Certificates, upon discovery or receipt
of notice pursuant to Section 2.2 that a document is missing or defective, the
Trustee shall immediately notify the Depositor, the Administrative Agent, if
any, and the Rating Agency that such document is defective or missing and,
unless the Depositor provides to the Trustee an Officer's Certificate stating
such missing or defective document will not have a materially adverse effect on
the related Trust, the Administrative Agent, if any, or the Trustee shall
immediately so notify the Term Asset Provider and require that the Term Asset
Provider deliver such missing document or cure such defect within 60 days from
the date on which such Term Asset Provider was first notified of such missing
document or defect, and if such Term Asset Provider does not deliver such
missing document or cure such defect in all material respects during such
period, the Administrative Agent, if any, or the Trustee shall use its best
efforts to enforce the Term Asset Provider's obligation, if any, under the
related Term Asset Purchase Agreement to repurchase such Term Asset from the
Trustee at the applicable Purchase Price within 90 days after the date on which
the Term Asset Provider was first notified of such missing document or defect.
The Purchase Price for the repurchased Term Asset shall be delivered to the
Administrative Agent, if any, or to the Trustee directly for deposit in the
Certificate Account and the Trustee, upon receipt either of certification by the
Administrative Agent, if any, of such deposit or of such deposit directly, shall
release to the Term Asset Provider the related documents in its possession and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be necessary to vest in the Term Asset Provider
any Term Asset released pursuant hereto, and the Trustee shall have no further
obligations with regard to such documents. The foregoing
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notwithstanding, if and to the extent the Series Supplement provides, the Term
Asset Provider may, as an alternative to repurchasing any such Term Asset as
provided above, if and to the extent so provided in the Term Asset Purchase
Agreement, cause such Term Asset to be removed from the Trust (in which case it
shall become a Deleted Term Asset) by agreeing to substitute one or more
Qualified Substitute Term Assets in the manner and subject to the limitations
set forth in Section 2.3(b) and the related Series Supplement. It is understood
and agreed that the obligation of the Term Asset Provider to repurchase or
substitute for any Term Asset as to which a constituent document is missing or a
defect in a constituent document exists shall, if such defect is not cured or
such missing document is not provided, constitute (unless otherwise specified in
the applicable Series Supplement) the sole remedy respecting such omission or
defect available to the Certificateholders or the Trustee on behalf of the
Certificateholders. It is further understood and agreed that, unless otherwise
provided in the related Series Supplement, in no event shall either the
Depositor or the Administrative Agent, if any, be obligated to repurchase or
substitute for such a Term Asset, regardless of whether the Term Asset Provider
defaults on its obligation to repurchase or substitute for such a Term Asset.
(b) If and to the extent provided for in a Series Supplement
relating to a given Series of Certificates, with respect to any Deleted Term
Asset for which the Depositor or the Term Asset Provider substitutes a Qualified
Substitute Term Asset or Assets, such substitution shall be effected by the
Depositor or Term Asset Provider delivering to the Trustee or a custodian on its
behalf such Qualified Substitute Term Asset or Assets and such documents and
agreements, with all necessary endorsements thereon, as would be required under
the terms of Section 2.1, together with an Officer's Certificate of the
Depositor or relevant Term Asset Provider certifying that each such Qualified
Substitute Term Asset satisfies the definition thereof and the requirements
under this Section. The Trustee or such custodian shall acknowledge receipt of
such Qualified Substitute Term Asset or Assets and, within five Business Days
thereafter, review such documents in the manner specified in Section 2.2. The
Depositor shall give or cause to be given written notice to the
Certificateholders of such Series and the Rating Agency that such substitution
has taken place and shall amend the Term Asset Schedule to reflect the removal
of such Deleted Term Asset from the terms of this Agreement and the substitution
of the Qualified Substitute Term Asset or Assets. Upon such substitution, such
Qualified Substitute Term Asset or Assets shall be subject to the terms of this
Agreement in all respects, including those related to the representations and
warranties included in the Term Asset Purchase Agreement as of the date of
substitution. The terms upon which such substitution may be effected shall be
specified in the applicable Series Supplement.
Section 2.4. Representations and Warranties of the Depositor
and Representations, Warranties and Covenants of the Administrative Agent. (a)
The Depositor hereby represents and warrants to the Trustee that as of the
Closing Date or as of such other date specifically provided herein or in the
applicable Series Supplement:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(ii) with respect to each Series Supplement, to the
Depositor's knowledge, the information set forth in the Term Asset
Schedule with respect to each Term Asset is true and correct in all
material respects at the date or dates respecting which such
information is furnished;
(iii) the execution and delivery of this Agreement by the
Depositor and its performance of and compliance with the terms of this
Agreement will not violate the Depositor's articles of incorporation or
by-laws or constitute a default (or an event
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which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach or acceleration of, any
material contract, agreement or other instrument to which the Depositor
is a party or which may be applicable to the Depositor or any of its
assets;
(iv) the Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, upon its execution and delivery by the Depositor and
assuming due authorization, execution and delivery by the Trustee, will
constitute a valid, legal and binding obligation of the Depositor,
enforceable against it in accordance with the terms hereof, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, and by general equity
principles (regardless of whether such enforcement is considered a
proceeding in equity or at law);
(v) the Depositor is not in violation, and the execution and
delivery of this Agreement by the Depositor and its performance and
compliance with the terms of this Agreement will not constitute a
violation, of any order or decree of any court or any order or
regulation of any Federal, State, municipal or governmental agency
having jurisdiction over the Depositor or its properties, which
violation would reasonably be expected to have a material and adverse
effect on the condition (financial or otherwise) or operations of the
Depositor or its properties or on the performance of its duties
hereunder; and
(vi) any additional representations and warranties, if any,
that may be specified in the applicable Series Supplement.
It is understood and agreed that the representations and
warranties of the Depositor set forth in this Section 2.4(a) shall survive
delivery of the respective documents to the Trustee and shall inure to the
benefit of the Trustee on behalf of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of the
Depositor, the Administrative Agent, if any, or the Trustee of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders, the party discovering such
breach shall give prompt written notice thereof to the other parties.
(b) The Administrative Agent, if any, shall make such
representations, warranties, if any, and covenants that may be specified in the
applicable Series Supplement.
Upon discovery by any of the Depositor, the Administrative
Agent, if any, or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the interests of the Certificateholders, the party discovering such breach shall
give prompt written notice thereof to the other parties.
Section 2.5. Breach of Representation, Warranty or Covenant.
(a) Within 90 days of the earlier of discovery by the Depositor or receipt of
notice by the Depositor of a breach of any representation or warranty of the
Depositor set forth in Section 2.4(a) that materially and adversely affects the
interests of the Certificateholders of a given Series of Certificates, the
Depositor shall cure such breach in all material respects.
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(b) With respect to an Administrative Agent appointed pursuant
to the applicable Series Supplement, within 90 days of the earlier of discovery
by such Administrative Agent or receipt of notice by such Administrative Agent
of a breach of any representation, warranty or covenant of such Administrative
Agent set forth in the applicable Series Supplement that materially and
adversely affects the interests of the Certificateholders, such Administrative
Agent shall cure such breach in all material respects.
Section 2.6. Agreement to Authenticate and Deliver
Certificates. With respect to each Series of Certificates and the related Trust,
the Trustee hereby agrees and acknowledges that it will, concurrently with the
Grant to and receipt by it of the related Term Assets and delivery to it by the
Depositor of executed Certificates of such Series, cause to be authenticated and
delivered to or upon the order of the Depositor, in exchange for the Term Assets
and such other assets constituting the Trust for a given Series, Certificates
duly authenticated by or on behalf of the Trustee in authorized denominations
evidencing ownership of the entire Trust for such Series, all in accordance with
the terms and subject to the conditions of Sections 5.2 and 5.13.
Section 2.7. Statement of Intent. It is the intention of the
parties hereto that, for purposes of federal income taxes, state and local
income and franchise taxes and any other taxes imposed upon, measured by or
based upon gross or net income, the Trust shall be treated as a grantor trust,
but failing that, as a partnership. The terms of this Agreement shall be
interpreted to further this intention of the parties. The parties hereto agree
that, unless otherwise required by appropriate tax authorities, the Trust shall
file or cause to be filed annual or other necessary returns, reports and other
forms consistent with such intended characterization. Each Certificateholder and
each beneficial owner of a Certificate by acceptance of its Certificate (or its
beneficial interest therein) agrees, unless otherwise required by appropriate
tax authorities, to file its own tax returns and reports in a manner consistent
with such characterization.
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust. (a) The Trustee
(and, to the extent required in the applicable Series Supplement, any
Administrative Agent) shall administer the Term Assets for each given Trust for
the benefit of the Certificateholders of the related Series. In engaging in such
activities, the Trustee (or the Administrative Agent, if applicable) shall,
subject to the provisions of Article VI hereof, follow or cause to be followed
collection procedures in accordance with the terms of this Agreement and the
applicable Series Supplement, the respective Term Assets and any applicable
Credit Support Instruments. With respect to each Trust, and subject only to the
above-described standards and the terms of this Agreement, the related Series
Supplement and the respective Term Assets and applicable Credit Support
Instruments, if any, the Trustee (or the Administrative Agent, if applicable)
shall have full power and authority, acting alone or through Sub-Administrative
Agents as provided in Section 3.2, to do or cause to be done any and all things
in connection with such administration which it deems necessary to comply with
the terms of this Agreement and the applicable Series Supplement.
(b) Without limiting the generality of the terms of paragraph
(a) of this Section 3.1, with respect to any Series of Certificates, the
Administrative Agent, if any, specified in the applicable Series Supplement
shall be hereby authorized and empowered by the Depositor, when such
Administrative Agent believes it appropriate in its reasonable judgment
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and when otherwise required by a Series Supplement, in its own name or in the
name of a Sub- Administrative Agent, (i) to instruct the Trustee to make
distributions or payments from the Certificate Account or any other Account for
such Series, as set forth herein or in the related Series Supplement, and (ii)
to the extent specified in the related Series Supplement, to execute and
deliver, on behalf of the Certificateholders of such Series and the Trustee or
any of them, and upon notice to the Trustee, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to any of the Term Assets
relating to such Series.
(c) The duties of the Trustee and the Administrative Agent, if
any, shall be performed in accordance with applicable local, State and Federal
law, and the Trustee (or, if specified in the applicable Series Supplement, the
Administrative Agent) shall at the direction of the Administrative Agent or, if
none, as specified in the applicable Series Supplement and/or by the Depositor,
make any and all filings, reports, notices or applications with, and seek any
comments and authorizations from, the Commission and any State securities
authority on behalf of the Trust for each Series to the extent it is provided
with appropriate information, materials and responses by the Administrative
Agent or, if none, as specifically set forth in the applicable Series Supplement
and/or by the Depositor. If the applicable Series Supplement appoints an
Administrative Agent, the Trustee, in its capacity as Trustee, shall execute, at
the direction of such Administrative Agent, any powers of attorney and other
documents necessary or appropriate to enable the Administrative Agent to carry
out any of its administrative duties hereunder; provided, however, that the
Trustee, in its capacity as Trustee, shall not be accountable for the actions of
the Administrative Agent or any Sub-Administrative Agents under such powers of
attorney.
Section 3.2. Sub-Administration Agreements Between
Administrative Agent or Trustee and Sub-Administrative Agents.
(a) Unless otherwise provided in a Series Supplement, an
Administrative Agent specified in the applicable Series Supplement and the
Trustee may enter into Sub-Administration Agreements with one or more
Sub-Administrative Agents in order to delegate their administrative obligations
with respect to a related Series under this Agreement to such Sub-Administrative
Agents; provided, however, that (i) such delegation shall not release either
such Administrative Agent or the Trustee, as applicable, from the duties,
obligations, responsibilities or liabilities arising under this Agreement; (ii)
the Rating Agency Condition shall have been satisfied with respect to the
entering into of any such agreement and (iii) such agreements are consistent
with the terms of this Agreement and, with respect to Certificates of any
Series, the related Series Supplement. With respect to any Series (or Class
within such Series) of Certificates, each Sub-Administration Agreement shall
impose on the Sub-Administrative Agent requirements conforming to the provisions
set forth in Section 3.1 and provide for administration of the related Trust and
all or certain specified Term Assets for such Series consistent with the terms
of this Agreement. Additional requirements relating to the scope and contents of
any Sub- Administration Agreement may be provided in the applicable Series
Supplement. Such Administrative Agent shall deliver to the Trustee and the
Depositor copies of all Sub- Administration Agreements which it enters into, and
any amendments or modifications thereof, promptly upon the Administrative
Agent's execution and delivery of any such instruments.
(b) As part of its duties hereunder, an Administrative Agent
specified in the applicable Series Supplement shall enforce the obligations of
each Sub-Administrative Agent under any related Sub-Administration Agreement
which it enters into and of the Term Asset Provider, if any, under any Term
Asset Purchase Agreement, for the benefit of the Trustee and the
Certificateholders of a given Series. Such enforcement, including the legal
prosecution of
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claims, the termination of Sub-Administration Agreements or Term Asset Purchase
Agreements, as appropriate, and the institution of Proceedings and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Administrative Agent, in its good faith business
judgment, deems necessary or advisable, subject in all cases to the provisions
of Article VI hereof.
Section 3.3. Successor Sub-Administrative Agents. An
Administrative Agent specified in the applicable Series Supplement and the
Trustee shall each be entitled to terminate any Sub-Administration Agreement
which it enters into and the rights and obligations of any Sub-Administrative
Agent under any Sub-Administration Agreement in accordance with the terms and
conditions of any such Sub-Administration Agreement. In the event of a
termination of any Sub-Administration Agreement, the Administrative Agent or the
Trustee, as applicable, shall simultaneously reassume direct responsibility for
all obligations delegated in such Sub- Administration Agreement without any act
or deed on the part of the applicable Sub- Administrative Agent, the Trustee or
the Administrative Agent, and the Administrative Agent or the Trustee, as
applicable, either shall administer directly the related Term Assets or shall
enter into a Sub-Administration Agreement with a successor Sub-Administrative
Agent which so qualifies under Section 3.2.
Section 3.4. Liability of the Administrative Agent.
Notwithstanding any Sub- Administration Agreement or any of the provisions of
this Agreement relating to agreements or arrangements between an Administrative
Agent, if any, or the Trustee and a Sub-Administrative Agent or references to
actions taken through a Sub-Administrative Agent or otherwise, the
Administrative Agent, if any is specified in the applicable Series Supplement,
or the Trustee, as applicable, shall remain obligated and primarily liable to
the Trustee and the Certificateholders for the administering of the Trust and
the Term Assets for each related Series of Certificates to the extent provided
herein and in the related Series Supplement in accordance with the provisions of
Section 3.1 without diminution of such obligation or liability by virtue of any
such Sub-Administration Agreements or arrangements or by virtue of
indemnification from the Sub-Administrative Agent and to the same extent and
under the same terms and conditions as if the Administrative Agent or the
Trustee, as applicable, alone were administering the Term Assets, and the
Administrative Agent or the Trustee, as applicable, shall not thereby be
released from any duties or responsibilities set forth in this Agreement or the
related Series Supplement. The Administrative Agent and the Trustee shall be
entitled to enter into any agreement with a Sub-Administrative Agent for
indemnification of the Administrative Agent or the Trustee by such
Sub-Administrative Agent for any liability or obligation sustained by the
Administrative Agent or the Trustee in connection with any act or failure to act
by the Sub-Administrative Agent, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
Section 3.5. No Contractual Relationship Between Certain
Sub-Administrative Agents and Trustee or Certificateholders. Any
Sub-Administration Agreement between an Administrative Agent specified in the
applicable Series Supplement and a Sub-Administrative Agent that may be entered
into and any transactions or services relating to the Term Assets pursuant to
such an agreement shall be deemed to be between the Sub-Administrative Agent and
the Administrative Agent alone, and the Trustee and Certificateholders shall not
be deemed parties thereto and shall have no claims, rights, obligations, duties
or liabilities with respect to the Sub-Administrative Agent except as set forth
in Section 3.6. Except as set forth in Section 3.6, the Administrative Agent
shall be solely liable for all fees owed by it to any Sub-Administrative Agent,
irrespective of whether the Administrative Agent's compensation pursuant to this
Agreement is sufficient to pay such fees; provided, however, that if so provided
in the applicable Series Supplement, a Sub-Administrative Agent shall be
entitled to a Retained Interest in certain Term Assets as and to the extent
specified in the Term Assets Schedule to such Series
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Supplement. Each such Sub-Administrative Agent shall be reimbursed by the
Administrative Agent for expenditures made by such Sub-Administrative Agent to
the same extent the Administrative Agent would be reimbursed for such
expenditures pursuant to the terms of this Agreement.
Section 3.6. Assumption or Termination of Sub-Administration
Agreements by Trustee. Except as and to the extent otherwise provided in a
Series Supplement, in the event an Administrative Agent specified in the
applicable Series Supplement shall for any reason no longer be acting in such
capacity with respect to any Series, the Trustee or its designee shall thereupon
assume all the rights and obligations of the Administrative Agent under each
Sub- Administration Agreement that the Administrative Agent may have entered
into with respect to any Term Asset or Assets related to such Series, provided
that the Trustee may elect to terminate any such Sub-Administration Agreement in
accordance with its terms. Except as otherwise provided in such a Series
Supplement, the Trustee, its designee or any successor Administrative Agent
shall be deemed to have assumed all the Administrative Agent's interest therein
and to have replaced the Administrative Agent as a party to each
Sub-Administration Agreement to the same extent as if each Sub-Administration
Agreement had been assigned to the assuming party; provided, however, that the
Administrative Agent shall not thereby be relieved of any liability or
obligations under any Sub-Administration Agreement and provided further, that
the Trustee shall in no event be obligated to make any Advances if it is
prohibited by law or regulation from doing so or from obligating itself to do
so. The Administrative Agent at its expense shall, upon request of the Trustee,
deliver to such assuming party all documents and records relating to each
Sub-Administration Agreement and the Term Assets then being administered by it
and an accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Administration
Agreements to the assuming party.
Section 3.7. Collection of Certain Term Asset Payments. With
respect to any Series or Class of Certificates, the Trustee (or the
Administrative Agent if specified in the related Series Supplement) shall make
reasonable efforts to collect all payments required to be made pursuant to the
terms of the Term Assets or any related Credit Support Instruments in a manner
consistent with the terms of this Agreement, such Term Assets and any related
Credit Support Instruments.
Section 3.8. Collections by Sub-Administrative Agent. Unless
otherwise provided in the applicable Series Supplement, in the event a
Sub-Administrative Agent is administering one or more Term Assets pursuant to a
Sub-Administration Agreement, the Sub-Administrative Agent shall be required to
immediately direct the Trustee to deposit into an Eligible Account established
by such Sub-Administrative Agent (a "Sub-Administration Account") any amounts
collected with respect thereto, and not later than the Business Day after
receipt thereof, all such amounts shall be deposited into the related
Certificate Account.
Section 3.9. Certificate Account. (a) For each Series of
Certificates, the Trustee shall establish and maintain one or more Eligible
Accounts (collectively, the "Certificate Account"), held in trust for the
benefit of the Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Certificate Account and in all proceeds
thereof. With respect to each Series of Certificates, the Certificate Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Certificateholders. With respect to each Series of Certificates, the
Trustee shall deposit or the Administrative Agent, if any, specified in the
applicable Series Supplement shall direct the Trustee to deposit or cause to be
deposited in the Certificate Account no later than the Business Day after
receipt thereof all amounts collected
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with respect to the Term Assets, any Credit Support and all Liquidation Proceeds
related to such Series including:
(i) all payments on account of principal of such Term Assets;
(ii) all payments on account of interest on such Term Assets;
(iii) all payments on account of premium (if any) on such Term
Assets;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section 4.3; and
(vi) any interest or investment income earned on funds
deposited in the related Accounts.
Unless otherwise specified in the applicable Series
Supplement, it is understood and agreed that payments in the nature of
prepayment or redemption penalties, late payment charges or assumption fees
which may be received by the Trustee or any Administrative Agent shall be
deposited by the Trustee or the Administrative Agent, as applicable, in the
Certificate Account and shall not be retained by the Trustee or the
Administrative Agent for its own account.
If, at any time, the Certificate Account for any Series ceases
to be an Eligible Account, the Trustee shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which the Rating Agency
Condition is met) establish a new Certificate Account meeting the conditions
specified above and transfer any cash and any investments on deposit in the
Certificate Account to such new Certificate Account, and from the date such new
Certificate Account is established, it shall be the Certificate Account for such
Series.
(b) The Trustee shall give notice to the Administrative Agent,
if any, the Depositor and the Rating Agency of the location of each Eligible
Account constituting the Certificate Account and prior to any change thereof.
(c) The Administrative Agent, if any, shall instruct the
Trustee as to, or otherwise the Trustee shall determine, the appropriate
application of Available Funds with respect to any Distribution Date for which
application is to be made on any such Distribution Date in accordance with the
terms of Section 4.1 and the related Series Supplement.
Section 3.10. Investment of Funds in the Accounts. The
Depositor (or, if so specified in the applicable Series Supplement, the
Administrative Agent), on behalf of the Trust, may direct the Trustee to direct
any depository institution maintaining the Certificate Account or the Reserve
Account, if any, for the applicable Series and any other segregated Eligible
Account the contents of which are held for the benefit of Certificateholders of
such Series (each, an "Account") to invest the funds therein in one or more
Permitted Investments bearing interest or sold at a discount, which shall be
held to maturity unless payable on demand and which funds shall not be
reinvested upon the maturity or demand for payment of such Permitted Investment.
If the Depositor (or the Administrative Agent, if applicable) does not provide
any investment directions to the Trustee, funds held in any Account will be
invested in the Permitted Investments specified in clause (ii) of the definition
thereof. Investments of such funds shall be invested in Permitted Investments
that will mature so that such funds will be available for distribution on the
Distribution Date on which such amounts are to be applied as distributions
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to Certificateholders. In the event amounts on deposit in an Account are at any
time invested in a Permitted Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand same day payment of all amounts due thereunder upon
a determination by the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in any Account.
Section 3.11. Maintenance of Credit Support. On the applicable
Closing Date, the Trustee or, if so specified in the applicable Series
Supplement, the Depositor or the Administrative Agent, shall, to the extent
specified in the applicable Series Supplement, establish and maintain, or enter
into, as applicable, in the name of the Trustee, either as a part of the related
Trust or outside it, for the benefit of the Certificateholders of the related
Series, the Credit Support specified in the applicable Series Supplement. To the
extent specified in the applicable Series Supplement, the Depositor or the
Administrative Agent, as the case may be, will make or cause to be made any
initial deposit to the Certificate Account or any Reserve Account for the
related Series as of the Closing Date. Unless the Series Supplement for a given
Series provides otherwise, if a Reserve Account exists for such Series,
collections with respect to the Term Assets for such Series not distributed to
the Certificateholders of such Series shall be deposited in the Reserve Account.
The Reserve Account, if any, will not be a part of or otherwise includible in
the Trust but will be held for the benefit of the Credit Support Provider.
Amounts on deposit in the Reserve Account and amounts
available pursuant to any other Credit Support for such Series shall be applied
by the Trustee to make distributions of principal of and premium (if any) and
interest on the Certificates of such Series as required pursuant to Section 4.1
and the applicable Series Supplement to the extent that funds are not otherwise
available for such purpose. If specified in such Series Supplement, immediately
after each Distribution Date, amounts on deposit in the Reserve Account for such
Series in excess of a specified amount shall be paid to the Person so specified
in such Series Supplement.
Section 3.12. Realization Upon Defaulted Term Assets. (a) If:
(i) default is made in the payment of any installment of
interest on any Term Asset when the same becomes due and payable, and
such default continues unremedied for the period specified in the
indenture or other authorizing document for such Term Asset (or, if no
such period is specified, five days) after receipt by the Term Assets
Issuer of notice thereof from the Trustee or receipt by the Term Assets
Issuer and the Trustee of notice thereof from the Holders of
Outstanding Certificates representing at least 25% of the Voting
Rights; or
(ii) default is made in the payment of the principal of or any
installment of the principal of any Term Asset when the same becomes
due and payable, and such default continues unremedied for the period
specified in the indenture or other authorizing document for such Term
Asset (or, if no such period is specified, thirty (30) days) after
receipt by the Term Assets Issuer of notice thereof from the Trustee or
receipt by the Term Assets Issuer and the Trustee of notice thereof
from the Holders of Outstanding Certificates representing at least 25%
of the Voting Rights;
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and the Term Assets Issuer shall, upon demand of the Trustee, fail to pay
forthwith to the Trustee, for the benefit of the Holders, the whole amount then
due and payable on such Term Assets for principal and interest, with interest
upon the overdue principal, at the rate borne by the Term Assets and in addition
thereto such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, to the
extent permitted by law (such event, an "Issuer Payment Default"), then the
Trustee, in its own name and as trustee of an express trust, subject to
provision being made for indemnification against costs, expenses and liabilities
in a form satisfactory to the Trustee, shall institute a Proceeding for the
collection of the sums so due and unpaid, and shall prosecute such Proceeding to
judgment or final decree or settlement, and shall enforce the same against the
Term Assets Issuer or other obligor upon the Term Assets and collect in the
manner provided by law out of the property of the Term Assets Issuer or other
obligor upon the Term Assets wherever situated, the moneys adjudged or decreed
to be payable, unless otherwise directed by Holders of the Required Percentage
- -- Direction of the Trustee. In connection therewith, the Trustee shall use its
best reasonable efforts in accordance with such normal and customary procedures
it shall deem necessary or advisable, and shall have the power and authority,
acting alone, to do any and all things in connection therewith and the
administration of the Trust as it may deem necessary or advisable.
(b) In the event that the Trustee receives money or other
property in respect of the Term Assets (other than a scheduled interest or
principal payment or the payment of any redemption premium on or with respect to
the earlier redemption of the Term Assets) as a result of a payment default on
the Term Assets or actual notice that such moneys or other property will be paid
to the Trustee, the Trustee shall promptly give notice (as provided in Section
10.5 hereof) to the Depository or, if the Certificates are not then held by the
Depository, directly to the Holders of the Certificates then outstanding and
unpaid. Such notice shall state that, not later than thirty (30) days after the
receipt of such moneys or other property, the Trustee shall allocate and
distribute such moneys or other property to the Holders of the Outstanding
Certificates then unpaid, in proportion to the Certificate Principal Balance or
Accreted Amount, as applicable, of each class of Outstanding Certificates,
together with accrued interest to the date of distribution, if applicable, and
within each class pro rata by Certificate Principal Balance. Property received,
other than cash, shall be liquidated by the Trustee in a commercially reasonable
manner and the proceeds thereof, after deduction of all reasonable costs of such
liquidation, distributed in cash, only to the extent necessary to avoid
distribution of fractional securities.
(c) The Trustee (or, if and under the circumstances specified
in the applicable Series Supplement, the Administrative Agent), on behalf of the
Certificateholders, shall assert claims under each applicable Credit Support
Instrument, and shall take such reasonable steps, in addition to those described
in Section 3.12(a), as are necessary to receive payment or to permit recovery
thereunder with respect to any defaulted Term Assets, subject in all cases to
the provisions of Article VI hereof in the case of the Administrative Agent and
Article VIII hereof in the case of the Trustee.
(d) Unless otherwise provided in a Series Supplement, if the
Administrative Agent or the Trustee, as applicable, is unable to obtain full
recovery in respect of a defaulted Term Asset and any related Credit Support
Instrument pursuant to Section 3.12(c), the Administrative Agent or the Trustee,
as applicable, shall follow or cause to be followed such normal practices and
procedures as it deems necessary or advisable to realize upon such defaulted
Term Asset and such Credit Support Instrument, subject in all cases to the
provisions of Article VI hereof in the case of the Administrative Agent and
Article VIII hereof in the case of the Trustee.
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Section 3.13. Retained Interest. The Retained Interest, if
any, in any Term Asset shall initially be held by the Person so specified in the
related Series Supplement as and to the extent specified in Schedule A thereof.
With respect to each Term Asset, the Retained Interest shall be deducted by the
Trustee, at the written direction of the Administrative Agent, if any, or the
Depositor from applicable collections in respect of such Term Asset. Unless
otherwise provided in the applicable Series Supplement, collections in respect
of Retained Interest shall not be deposited in the Certificate Account for the
applicable Series and shall not constitute a part of the Trust for such Series,
but shall instead be distributed to the holder of such Retained Interest,
provided that the Series Supplement for any Series with respect to which there
is a Retained Interest may provide that, notwithstanding the terms contained
herein, commingled amounts received in respect of assets inclusive of Term
Assets and Retained Interest may initially be deposited in a separate and
discrete Eligible Account established by the Trustee at the direction of the
Administrative Agent, if any, or the Depositor and such Series Supplement may
provide for additional terms relating thereto. Unless otherwise provided in the
applicable Series Supplement, after deduction of all applicable fees as provided
for in this Agreement, on each Distribution Date the Trustee shall allocate on a
pari passu basis any partial recovery on a Term Asset between (a) the Retained
Interest, if any, and (b) distributions to Certificateholders of the applicable
Series.
Section 3.14. Administrative Agent's Compensation and
Reimbursement. (a) As compensation for its activities, the Administrative Agent,
if any, specified in the applicable Series Supplement shall be entitled to the
Administrative Fee, which shall be paid on the dates, in the amounts, under the
circumstances and in the manner specified in the applicable Series Supplement.
(b) If, and only to the extent, provided in a Series
Supplement, the Administrative Agent, if any, shall be required to pay from its
compensation hereunder or otherwise all expenses incurred in connection with the
Trust for the related Series and its administration of the Term Assets for the
related Series, including payment of the fees and disbursements of the Trustee
(including the reasonable fees and expenses of its counsel and independent
accountants allocable to such Series), payment of expenses incurred in
connection with distributions and reports to Certificateholders of such Series,
payment of premiums on Credit Support Instruments related to such Series and
other expenses specified in such Series Supplement; provided, however, that
neither the Administrative Agent, if any, nor the Trustee will be responsible
for any Federal, State, local or foreign income and franchise taxes, if any, and
any interest or penalties with respect thereto, assessed on the Trust for such
Series.
Section 3.15. Statement as to Compliance. An Administrative
Agent appointed pursuant to the applicable Series Supplement, if any, will
deliver to the Trustee, the Depositor and the Rating Agency not later than 90
days following the end of each fiscal year of the Administrative Agent an
Officer's Certificate executed by two of its Executive Officers stating, as to
each signatory thereof, that (i) a review of the activities of the
Administrative Agent during the preceding year and of performance under this
Agreement has been made under such officer's supervision and (ii) to the best of
such officer's knowledge, based on such review, the Administrative Agent has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof.
Copies of such statement received by the Trustee shall be provided by the
Trustee to any Certificateholder upon request at the Certificateholder's
expense.
Section 3.16. Independent Public Accountants' Administration
Report. Unless otherwise specified in the Series Supplement, within four months
from the end of each 12-month
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period beginning with the period specified in the Series Supplement for a given
Series of Certificates, either the Administrative Agent, if any, specified in
the Series Supplement, or otherwise the Trustee shall cause a firm of nationally
recognized independent public accountants (who may also render other services to
the Administrative Agent, if any, the Trustee or the Depositor) to furnish a
report addressed to the Trustee, the Depositor, the Rating Agency and each
Credit Support Provider for such Series, if any, to the effect that such firm
has examined certain documents and records relating to the administration of the
Term Assets and related Credit Support deposited in or held by the applicable
Trust during the preceding 12-month period (or, in the case of the first such
report, during the period from the Closing Date to the date specified in the
applicable Series Supplement), which report should enable the recipients thereof
to determine whether such administration was conducted in accordance with the
terms of this Agreement and the related Series Supplement. Such report shall
identify any exceptions found during the examination.
Such report will also indicate that the firm is independent of
the Administrative Agent, if any, and the Trustee within the meaning of the Code
of Professional Ethics of the American Institute of Certified Public
Accountants.
Copies of such statement received by the Trustee shall be
provided by the Trustee to any Certificateholder of such Series upon request
without charge to the requesting Certificateholder.
The firm of independent public accountants shall be entitled
to compensation in consideration for its duties hereunder in the manner
specified in the applicable Series Supplement.
Section 3.17. Access to Certain Documentation. The Trustee and
the Administrative Agent, if any, shall provide to any Federal, State or local
regulatory authority that may exercise authority over any Certificateholder
access to the documentation regarding the Term Assets required by applicable
laws and regulations. Such access shall be afforded without charge, but only
upon reasonable request and during normal business hours at the offices of the
Trustee and Administrative Agent, if any, designated by each of them. In
addition, access to the documentation regarding the Term Assets related to a
given Series (or Class within such Series) will be provided to any
Certificateholder of such Series (or Class) upon reasonable request during
normal business hours at the offices of the Trustee and Administrative Agent
designated by each of them at the expense of the Certificateholder requesting
such access.
Section 3.18. Duties of the Administrative Agent.
Notwithstanding any other provision of this Agreement, with respect to any
Series, the applicable Series Supplement may provide that any Administrative
Agent appointed pursuant to such Series Supplement shall have no rights and no
duties, obligations or liabilities except as provided in such Series Supplement
and herein.
Section 3.19. Depositor to Furnish Names and Addresses of
Holders to Trustee. The Depositor shall furnish or cause to be furnished to the
Trustee not more than five days before each Distribution Date, and at such other
times as the Trustee may request in writing, a list, in such form as the Trustee
may reasonably require, to the extent such information is in the possession or
control of the Depositor or any of its paying agents, of the Holders of
Certificates as of the close of business on the applicable record date of the
Term Assets; provided, however, that so long as the Trustee maintains the
Certificate Register, no such list shall be required to be furnished.
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Section 3.20. Preservation of Information, Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Certificates
contained in the most recent list furnished to the Trustee as provided in
Section 3.19 and the names and addresses of Holders of Certificates received by
the Trustee in its capacity as Certificate registrar. The Trustee may destroy
any list furnished to it as provided in such Section 3.19 upon receipt of a new
list so furnished.
(b) Holders shall have the right to communicate pursuant to
TIA Section 312(b) with other Holders with respect to their rights under this
Agreement or under the Certificates.
(c) The Depositor, the Trustee and the Certificate registrar
shall have the protection of TIA Section 312(c).
Section 3.21. Reports by Trustee. If required by TIA Section
313(a), within 60 days after December 31 of each year, the Trustee shall mail to
(i) each Holder as required by TIA Section 313(c) and (ii) the Depositor, a
brief report dated as of such date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b). A copy of any report
delivered pursuant to this Section 3.21 shall, at the time of its mailing to
Holders and the Depositor, be filed by the Trustee with the Commission and each
stock exchange, if any, on which the Certificates are listed. The Depositor
shall notify the Trustee if and when the Certificates are listed on any stock
exchange.
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions. On each Distribution Date for a
given Series of Certificates, the Trustee shall apply Available Funds in the
Certificate Account for such Series in the manner and priority set forth in the
Series Supplement for such Series. Notwithstanding any other provisions in this
Agreement, the right of the Holder of any Certificate to receive any such
distributions in the manner and priority set forth in the Series Supplement for
such Series and to institute suit for the enforcement of any such payment on or
after the date such payment is payable, shall not be impaired without the
consent of such Holder.
Section 4.2. Reports to Certificateholders. Unless otherwise
specified in the applicable Series Supplement, on the next Business Day
following each such Distribution Date the Trustee or the Administrative Agent,
if any, as specified in such Series Supplement, shall forward or cause to be
forwarded to the Depositor, each Certificateholder of such Series and such other
Persons as may be specified in such Series Supplement, a statement setting
forth:
(i) the amount of the distribution on such Distribution Date
to Certificateholders of each Class of such Series allocable to
principal of and premium, if any, and interest on the Certificates of
each such Class; and the amount of aggregate unpaid interest accrued or
accreted as of such Distribution Date;
(ii) in the case of each Class of Floating Rate Certificates
of such Series, the respective Floating Pass Through Rate applicable to
each such Class on such Distribution Date, as calculated in accordance
with the method specified in such Certificates and the related Series
Supplement;
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(iii) the amount of compensation received by any
Administrative Agent and such other customary information as the
Trustee or Administrative Agent, as applicable, deems necessary or
desirable, or that any such Certificateholder reasonably requests, to
enable such Certificateholders to prepare their tax returns;
(iv) if the Series Supplement provides for Advances, the
aggregate amount of Advances, if any, included in such distribution,
and the aggregate amount of unreimbursed Advances, if any, at the close
of business on such Distribution Date;
(v) the aggregate stated principal amount and, if applicable,
notional amount of the Term Assets related to such Series, the current
rating assigned by the Rating Agency thereon and the current interest
rate or rates thereon at the close of business on such Distribution
Date;
(vi) the aggregate Certificate Principal Balance (or Notional
Amount, if applicable) of each Class of such Series at the close of
business on such Distribution Date; and
(vii) as to any Series (or any Class within such Series) for
which Credit Support has been obtained, the amount or notional amount
of coverage of each element of Credit Support (and rating, if any,
thereof) included therein as of the close of business on such
Distribution Date.
In the case of information furnished pursuant to subclauses (i) and (iii) above,
the amounts shall be expressed as a Dollar amount (or the equivalent thereof in
any other Specified Currency) per minimum denomination of Certificates or for
such other specified portion thereof. Within a reasonable period of time after
the end of each calendar year, the Trustee shall furnish to each person who at
any time during each such calendar year was a Certificateholder a statement
containing the information set forth in subclauses (i) and (iii) above,
aggregated for such calendar year or the applicable portion thereof during which
such person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as are from time to time in effect.
Section 4.3. Advances. (a) Unless otherwise specified in the
applicable Series Supplement, an Administrative Agent appointed pursuant to the
Series Supplement shall have no obligation to make Advances (as defined below)
with respect to the Term Assets or in favor of the Holders of any Series (or
Class within such Series) of Certificates. However, as and to the extent
provided in the Series Supplement for a given Series, and subject to the terms
of paragraphs (b) and (c) of this Section 4.3, on or prior to each Distribution
Date, such Administrative Agent shall advance or cause to be advanced in
immediately available funds to the Trustee for deposit in the Certificate
Account for such Series an advance (each, an "Advance") in an amount equal,
unless otherwise specified in the related Series Supplement, to the aggregate of
distributions of principal, premium (if any) and interest due on the Term Assets
for such Series (or Class) during the related Collection Period, to the extent
remaining unpaid at the time of such Advance. In satisfaction of its obligation
to make such Advances, the Administrative Agent shall make such Advances from
either (i) its own funds or (ii) funds with respect to the Term Assets for such
Series or Class on deposit in the Certificate Account for such Series, if any,
that do not constitute Available Funds with respect to such Distribution Date;
provided, however, that, to the extent the Administrative Agent shall have made
Advances from funds on deposit in the applicable Certificate Account, the
Administrative Agent shall immediately deposit funds equal to the aggregate
amount of such Advances into such Certificate
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Account on any subsequent Distribution Date to the extent that amounts on
deposit in such Certificate Account on such Distribution Date are less than the
amount of distributions required to be made on such Distribution Date pursuant
to Section 4.1 and the related Series Supplement. The Administrative Agent may
recover Advances from late collections received by the Trustee on the applicable
Term Assets, proceeds from any applicable Credit Support, if any, and
Liquidation Proceeds with respect to the Term Assets for such Series or Class,
as specified in the related Series Supplement, as to which any such unreimbursed
Advance was made.
(b) Notwithstanding any provision herein to the contrary, no
Advance shall be required to be made hereunder if the Administrative Agent
reasonably believes that it will be unable to recover such Advance from related
late collections, Credit Support proceeds, if any, or Liquidation Proceeds with
respect to the applicable Term Assets. It is further understood and agreed that
the Administrative Agent shall not be obligated to make any Advances in respect
of reductions in the amount of collections on the Term Assets due to bankruptcy
proceedings with respect to the Term Assets or the obligors thereof.
(c) Notwithstanding any provision herein to the contrary,
unless otherwise provided in the Series Supplement for a given Series, any
Advances made in respect of any Term Assets related to such Series (or Class
within such Series) that are subsequently deemed by the Administrative Agent to
be nonrecoverable from related late collections, Credit Support proceeds, if
any, or Liquidation Proceeds may be reimbursed to the Administrative Agent
through the application of amounts on deposit in the Certificate Account for
such Series allocable to any of such Term Assets prior to the distributions of
interest, premium (if any) and principal with respect to the Certificates of
such Series or Class.
Section 4.4. Compliance with Withholding Requirements. If any
withholding tax is imposed on the payment (or allocations of income) to any
Certificateholder, such tax shall reduce the amount otherwise distributable to
such Holder. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to any Holder sufficient funds for the payment
of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings), or that the Trustee may otherwise determine it is obligated
to withhold under applicable law or regulation. The amount of any withholding
tax imposed with respect to any Holder shall be treated as cash distributed to
such Holder at the time it is withheld by the Trustee and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution, the Trustee may in its sole discretion
withhold such amounts in accordance with this Section 4.4. If any Holder wishes
to apply for a refund of any such withholding tax, the Trustee shall reasonably
cooperate with such Holder in making such claim so long as such Holder agrees to
reimburse the Trustee for any out-of-pocket expenses incurred. The Trustee shall
use reasonable efforts to give notice to each Holder of any such withholding
requirement at least 10 days prior to the date of the payment from which amounts
are required to be withheld.
Section 4.5. Optional Exchange. (a) The terms and conditions,
if any, upon which Certificates of any Series (or Class within such Series) may
be exchanged for a pro rata portion of the Term Assets of the related Trust will
be specified in the related Series Supplement; provided that any right of
exchange shall be exercisable only to the extent that the Depositor provides
upon the Trustee's request an Opinion of Counsel that (i) such exchange would
not be inconsistent with the Depositor's and the Trust's continued satisfaction
of the applicable requirements for exemption under Rule 3a-7 (or other
applicable rule or exemption) under the Investment Company Act of 1940, as
amended, and all applicable rules, regulations
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and interpretations thereunder and (ii) such exchange would not cause the Trust
to fail to qualify as a grantor trust for federal income tax purposes. Such
terms may relate to, but are not limited to, the following:
(1) a requirement that the exchanging Holder tender to the
Trustee Certificates of each Class within such Series;
(2) a minimum Certificate Principal Balance or Notional
Amount, as applicable, with respect to Certificates being tendered for
exchange by a single Holder;
(3) a requirement that the Certificate Principal Balance or
Notional Amount, as applicable, of each Certificate tendered for
exchange be an integral multiple of an amount specified in such Series
Supplement;
(4) specified dates during which a Holder may effect such an
exchange (each, an "Optional Exchange Date");
(5) limitations on the right of an exchanging Holder to
receive any benefit upon exchange from any Credit Support or Term
Assets which are not debt securities; and
(6) adjustments to the value of the proceeds of any exchange
based upon required prepayment of future expense allocations and if
provided for in the applicable Series Supplement the establishment of a
reserve for any anticipated Extraordinary Trust Expenses.
(b) Unless otherwise provided in the applicable Series
Supplement, no Certificate may be exchanged pursuant to the preceding paragraph
unless the Trustee has received at least 30 days but not more than 45 days prior
to an Optional Exchange Date in accordance with delivery instructions specified
in the applicable Series Supplement (i) such Certificate with the form entitled
"Option to Elect Exchange" on the reverse thereof duly completed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc., the
Depositary (in accordance with its normal procedures) or a commercial bank or
trust company in the United States setting forth the name of the Holder of such
Certificate, the Certificate Principal Balance or Notional Amount of such
Certificate to be exchanged and the Certificate number or a description of the
tenor and the terms of such Certificate, a statement that the option to elect
exchange is being exercised thereby and an assurance that the Certificate to be
exchanged with the form entitled "Option to Elect Exchange" on the reverse of
the Certificate duly completed will be received by such Trustee not later than
five Business Days after the date of such telegram, telex, facsimile
transmission or letter, and such Certificate and form duly completed must be
received by such Trustee by such fifth Business Day. Any tender of a Certificate
by the Holder thereof for exchange shall be irrevocable. Unless otherwise
provided in the applicable Series Supplement, the exchange option may be
exercised pursuant to this Section by the Holder of a Certificate for less than
the Certificate Principal Balance or Notional Amount of such Certificate as long
as the Certificate Principal Balance or Notional Amount remaining Outstanding
after such exchange is an authorized denomination and all other exchange
requirements set forth in the related Series Supplement are satisfied. Upon such
partial exchange, such Certificate shall be cancelled and a new Certificate or
Certificates for the remaining Certificate Principal Balance or Notional Amount
thereof shall be issued (which, in the case of any Certificate, shall be in the
name of the Holder of such exchanged Certificate).
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(c) Upon the completion of any such Optional Exchange, the
Trustee shall give prompt written notice thereof to the Rating Agency.
ARTICLE V
The Certificates
Section 5.1. The Certificates. The Certificates of any Series
(or Class within such Series) will be issued in fully registered form as
Certificates and shall be substantially in the form of the exhibits with respect
thereto attached to the applicable Series Supplement. The aggregate Certificate
Principal Balance or Notional Amount of Certificates which may be authenticated
and delivered under this Agreement is unlimited.
The Certificates may be issued in one or more Series, each of
which Series may be issued in one or more Classes, with such further particular
designations added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Board of Directors may
determine. Each Certificate shall bear upon its face the designation so selected
for the Series and Class to which it belongs. All Certificates of the same
Series and Class shall be identical in all respects except for the denominations
thereof. All Certificates of all Classes within any one Series at any time
Outstanding shall be identical except for differences among the Certificates of
the different Classes within such Series specified in the applicable Series
Supplement. Except as otherwise provided in a Series Supplement, all
Certificates of a particular Series (and all Classes within such Series) issued
under this Agreement shall be in all respects equally and ratably entitled to
the benefits hereof without preference, priority or distinction on account of
the actual time or times of authentication and delivery, all in accordance with
the terms and provisions of this Agreement.
Each Series (and all Classes within such Series) of
Certificates shall be created by a Series Supplement authorized by the Board of
Directors and establishing the terms and provisions of such Series. The several
Series may differ as between Series and any Class may vary as between the other
Classes within any given Series in respect of any of the following matters:
(1) designation of such Series and Class;
(2) the dates on which or periods during which the
Certificates of such Series and Class may be issued;
(3) the number of Classes, the maximum Certificate Principal
Balance or Notional Amount of Certificates of each Class that may be
issued and any priorities or subordination among Classes of a Series
with respect to distributions from the Trust;
(4) for each Class of Certificates, the Pass Through Rate and,
in the case of each Class of Floating Rate Certificates, the method for
calculating such Pass Through Rate;
(5) the terms of the Letter of Credit, if any, or of the
Surety Bond, if any, or of any other Credit Support for the benefit of
the Certificateholders of such Series or Class or group of Classes;
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(6) the places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Certificates),
where the principal of (and premium, if any) and interest on
Certificates of such Series and Class shall be distributable;
(7) the authorized denominations (if other than $100,000 and
integral multiples of $1,000 in excess thereof) with respect to such
Series or Class;
(8) the Collection Periods, the Distribution Dates and the
Scheduled Final Distribution Dates for such Series and Class;
(9) the types of Term Assets that will be included in the Trust
for such Series and the manner and priorities of allocating
distributions with respect to collections of principal (and premium, if
any) and interest payments allocable to such Term Assets among Holders
of Certificates of different Classes (including whether the
Certificates of any such Class are to be entitled to receive principal
distributions with disproportionate, nominal or no interest
distributions, or interest distributions with disproportionate, nominal
or no principal distributions, and, in each case, the applicable terms
thereof);
(10) the amount, if any, to be deposited on the Closing Date in the
Certificate Account for such Series;
(11) the manner in which the Reserve Account, if any, is to be
funded, the amount, if any, to be deposited therein on the Closing Date
and the Requisite Reserve Amount, if any, for such Series or Class;
(12) the terms of any Guaranteed Investment Contract Granted as
part of the related Trust;
(13) the provisions, if any, for the optional exchange of the
Certificates of such Series by the Certificateholders of such Series
and the periods within which or the dates on which, and the terms and
conditions on which, such Certificates may be exchanged in whole or in
part for a pro rata portion of the Term Assets related to such Series;
(14) whether the Certificates of such Series or Class are to be
issued as Discount Certificates and the amount of discount with which
such Certificates may be issued;
(15) whether the Certificates of such Series or Class are to be
issued in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary for such Global Security or
Securities and the terms and conditions, if any, upon which interests
in such Global Security or Securities may be exchanged in whole or in
part for the individual Certificates represented thereby;
(16) [reserved.];
(17) [reserved.];
(18) if other than Dollars, the Currency in which Certificates of
such Series or Class shall be denominated or in which distributions of
the principal of (and premium, if any) and interest on such
Certificates may be made and any other terms concerning such payment;
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(19) if the principal of (and premium, if any) or interest on
Certificates of such Series or Class are to be distributable, at the
election of the Depositor or a Holder thereof, in a Currency other than
that in which such Certificates are denominated or distributable
without such election, the periods within which and the terms and
conditions upon which such election may be made and the time and the
manner of determining the exchange rate between the Currency in which
such Certificates are denominated or distributable without such
election and the Currency in which such Certificates are to be
distributed if such election is made;
(20) any additional Administrative Agent Termination Events or
representations, warranties or covenants provided for with respect to
Certificates of such Series;
(21) provisions with respect to the terms for which the definitions
set forth in Article I permit or require further specification in the
related Series Supplement, including:
(a) "Accounting Date";
(b) "Accreted Amount";
(c) "Administrative Agent";
(d) "Administrative Fee";
(e) "Available Funds";
(f) "Basic Documents";
(g) "Calculation Agent";
(h) "Call Premium Percentage";
(i) "Closing Date";
(j) "Collection Period";
(k) "Corporate Trust Office";
(l) "Credit Support";
(m) "Credit Support Instrument";
(n) "Credit Support Provider";
(o) "Cut-off Date";
(p) "Depositary";
(q) "Depository Agreement";
(r) "Discount Certificates";
(s) "Distribution Date";
(t) "Event of Default";
(u) "Extraordinary Trust Expense";
(v) "Final Scheduled Distribution Date";
(w) "Fixed Pass Through Rate";
(x) "Floating Pass Through Rate";
(y) "Floating Rate Certificate";
(z) "Global Securities";
(aa) "Grant";
(ab) "Guaranteed Investment Contract";
(ac) "Letter of Credit";
(ad) "Limited Guarantor";
(ae) "Limited Guaranty";
(af) "Notional Amount";
(ag) "Optional Exchange Date";
(ah) "Pass Through Rate";
(ai) "Permitted Investments";
(aj) "Place of Distribution";
(ak) "Purchase Price";
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(al) "Qualified Substitute Term Asset";
(am) "Rating Agency";
(an) "Rating Agency Condition";
(ao) "Record Date";
(ap) "Required Interest";
(aq) "Required Premium";
(ar) "Required Principal";
(as) "Required Percentage";
(at) "Required Rating";
(au) "Requisite Reserve Amount";
(av) "Retained Interest";
(aw) "Scheduled Final Distribution Date";
(ax) "Specified Currency";
(ay) "Surety Bond";
(az) "Term Asset Provider";
(ba) "Term Asset Purchase Agreement";
(bb) "Term Assets";
(bc) "Term Assets Issuer";
(bd) "Term Assets Schedule";
(be) "Trust";
(bf) "Trustee";
(bg) "Trust Termination Event";
(bh) "Voting Rights";
(22) rights and remedies provided to any Credit Support Provider
with respect to all or a portion of the Trust for such Series or Class;
(23) any restrictions on the sale and transfer of the Certificates,
including restrictions arising out of the Employee Retirement Income
Security Act of 1974, as amended, or the Code; and
(24) any other provisions expressing or referring to the terms and
conditions upon which the Certificates of such Series or Class are to
be issued under this Agreement that do not prevent such Certificates
from receiving the Required Rating.
In the absence of any specification pursuant to this Section
5.1 with respect to Certificates of any Series, the Certificates of such Series
shall be issuable only as Certificates in denominations of $1,000 and in
integral multiples thereof and shall be payable only in Dollars.
A different Trustee and an Administrative Agent may be
appointed by the Depositor for each Series of Certificates prior to the issuance
of such Series provided that the Rating Agency Condition is met. If the initial
Trustee is to be other than First Trust of New York, National Association, or
there is to be an Administrative Agent, then such Series Supplement shall
provide for the appointment of such Trustee or such Administrative Agent or
both, as applicable, of such Series and shall add or change any of the
provisions of this Agreement as shall be necessary to provide for or facilitate
the administration of the trusts hereunder and of the Term Assets; it being
understood that nothing contained herein or in such Series Supplement shall
constitute the Trustees for different Series as co-trustees for the same Series
or the administrative agents for different Series as co-administrative agents
for the same Series, and that each Trustee shall be a trustee of a trust or
trusts separate and apart from any trust or trusts hereunder of any other
Trustee, and that each Administrative Agent shall be an
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administrative agent of a Trust separate and apart from any other Trust. Upon
final appointment of any new Trustee or Administrative Agent, the Trustee shall
provide a notice of such appointment to the Rating Agency not later than 15 days
following such appointment.
Section 5.2. Execution, Authentication and Delivery. (a) The
Certificates shall be executed by the Depositor by its President, its Treasurer,
one of its Vice Presidents, or one of its Finance Officers. The signature of any
of these officers may be manual or facsimile. Certificates bearing the manual or
facsimile signature of individuals who were at any time the proper officers of
the Depositor shall be binding, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates.
(b) Each Certificate shall be dated as of the later of the
date specified in the related Series Supplement and the date of its
authentication.
(c) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in one of the
forms provided for herein executed by the Trustee by the manual signature of one
of its authorized signatories, and such certificate upon any Certificate shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Agreement.
Section 5.3. Temporary Certificates. Pending the preparation
of Definitive Certificates of any Series (or Class within such Series), the
Depositor may execute, and upon receipt of a Depositor Order, the Trustee shall
authenticate and deliver temporary Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as may be authorized by such Depositor Order.
Any such temporary Certificate may be in global form, representing all or a
portion of the Outstanding Certificates of such Series or Class. Every such
temporary Certificate shall be executed by the Depositor and shall be
authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the Definitive
Certificate or Definitive Certificates in lieu of which it is issued.
If temporary Certificates of any Series (or Class within such
Series) are issued, the Depositor will cause Definitive Certificates of such
Series or Class to be prepared without unreasonable delay and (a) after the
preparation of Definitive Certificates of such Series or Class, the temporary
Certificates of such Series or Class shall be exchangeable for Definitive
Certificates of such Series or Class upon surrender of the temporary
Certificates of such Series or Class at the office of the Trustee in a Place of
Distribution for such Series or Class, without charge to the Holder, except as
provided in Section 5.4 in connection with a transfer and (b) upon surrender for
cancellation of any one or more temporary Certificates of any Series or Class
within such Series the Depositor shall execute and the Trustee shall
authenticate and deliver in exchange therefor Definitive Certificates with a
like Certificate Principal Balance or Notional Amount, as applicable, of the
same Series (or Class within such Series) of authorized denominations and of
like tenor. Until so exchanged, temporary Certificates of any Series (or Class
within such Series) shall in all respects be entitled to the same benefits under
this Agreement as Definitive Certificates of such Series or Class, except as
otherwise specified in the applicable Series Supplement with respect to the
payment of interest on Global Securities in temporary form.
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Upon any exchange of a portion of a temporary Global Security
for a definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.3 or Section 5.4, the temporary
Global Security shall be endorsed by the Trustee to reflect the reduction of the
aggregate Certificate Principal Balance or Notional Amount, as applicable,
evidenced thereby, whereupon the aggregate Certificate Principal Balance or
Notional Amount, as applicable, of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
Section 5.4. Registration; Registration of Transfer and
Exchange. The Trustee shall cause to be kept a register for each Series of
Certificates (the registers maintained in such office and in any other office or
agency of the Trustee in a Place of Distribution being herein sometimes
collectively referred to as the "Certificate Register") in which a transfer
agent and registrar (which may be the Trustee) (the "Certificate Registrar")
shall provide for the registration of Certificates and the registration of
transfers and exchanges of Certificates. The Trustee is hereby initially
appointed Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided; provided, however,
that the Trustee may appoint one or more co-Certificate Registrars. Upon any
resignation of any Certificate Registrar, the Depositor shall promptly appoint a
successor or, in the absence of such appointment, assume the duties of
Certificate Registrar.
If a Person other than the Trustee is appointed by the
Depositor as Certificate Registrar, the Depositor will give the Trustee prompt
written notice of the appointment of a Certificate Registrar and of the
location, and any change in the location, of the Certificate Register, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Certificate Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Certificates and the principal amounts and
numbers of such Certificates.
Upon surrender for registration of transfer of any Certificate
of any Series (or Class within such Series) at the office or agency of the
Trustee, if the requirements of Section 8- 401(1) of the Uniform Commercial Code
are met to the Depositor's satisfaction, the Depositor shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of any authorized denominations, of
a like Series, Class and aggregate Certificate Principal Balance or Notional
Amount, as applicable.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for the individual Certificates
represented thereby, a Global Security representing all or a portion of the
Certificates of a Series (or Class within such Series) may not be transferred
except as a whole by the Depositary for such Series or Class to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such Series or Class or a nominee of such successor
Depositary.
At the option of the Holder, Certificates of any Series (or
Class within such Series) (other than a Global Security, except as set forth
below) may be exchanged for other Certificates of the same Series or Class of
any authorized denomination or denominations of like tenor and aggregate
Certificate Principal Balance or Notional Amount, as applicable, upon surrender
of the Certificates to be exchanged at the office or agency of the Trustee
maintained for such purpose.
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Whenever any Certificates are so surrendered for exchange, the
Depositor shall execute and the Trustee shall authenticate and deliver the
Certificates that the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Certificates of a Series
(or Class within such Series) notifies the Depositor that it is unwilling or
unable to continue as Depositary for the Certificates of such Series or Class or
if at any time the Depositary for the Certificates of such Series or Class shall
no longer be eligible under Section 5.9(b), the Depositor shall appoint a
successor Depositary with respect to the Certificates of such Series or Class.
If a successor Depositary for the Certificates of such Series or Class is not
appointed by the Depositor within 90 days after the Depositor receives such
notice or becomes aware of such ineligibility, the Depositor's election pursuant
to Section 5.1 shall no longer be effective with respect to the Certificates of
such Series or Class and the Depositor will execute, and the Trustee, upon
receipt of a Depositor Order for the authentication and delivery of individual
Certificates of such Series or Class, will authenticate and deliver individual
Certificates of such Series or Class in an aggregate Certificate Principal
Balance or Notional Amount, as applicable, equal to the aggregate Certificate
Principal Balance or Notional Amount, as applicable, of the Global Security or
Securities representing Certificates of such Series or Class in exchange for
such Global Security or Securities.
The Depositor may at any time and in its sole discretion
determine that individual Certificates of any Series (or Class within such
Series) issued in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Depositor
shall execute, and the Trustee, upon receipt of a Depositor Order for the
authentication and delivery of individual Certificates of such Series or Class,
shall authenticate and deliver, individual Certificates of such Series or Class
in an aggregate Certificate Principal Balance or Notional Amount, as applicable,
equal to the aggregate Certificate Principal Balance or Notional Amount, as
applicable, of the Global Security or Securities representing Certificates of
such Series or Class in exchange for such Global Security or Securities.
If specified by the Depositor pursuant to Section 5.1 with
respect to a Series (or Class within such Series) of Certificates, the
Depositary for such Series may surrender a Global Security for such Series or
Class in exchange in whole or in part for individual Certificates of such Series
or Class on such terms as are acceptable to the Depositor and such Depositary.
Thereupon, the Depositor shall execute, and the Trustee, upon receipt of a
Depositor Order, shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
individual Certificate or Certificates of the same Series or Class, of
any authorized denomination as requested by such Person in an aggregate
Certificate Principal Balance or Notional Amount, as applicable, equal
to and in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the aggregate
Certificate Principal Balance or Notional Amount, as applicable, of the
surrendered Global Security and the aggregate Certificate Principal
Balance or Notional Amount, as applicable, of individual Certificates
delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Depositor shall execute, and the Trustee, upon receipt of a
Depositor Order, will authenticate and deliver individual Certificates in
registered form in authorized denominations.
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Upon the exchange of a Global Security for individual
Certificates, such Global Security shall be cancelled by the Trustee. Individual
Certificates issued in exchange for a Global Security pursuant to this Section
5.4 shall be registered in such names and in such authorized denominations as
the Depositary for such Global Security, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificates to the Persons in whose
names such Certificates are so registered.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall constitute complete and indefeasible evidence of
ownership in the Trust related to such Certificates and be entitled to the same
benefits under this Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Depositor, the Trustee or the
Certificate Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor, the Trustee and
the Certificate Registrar, duly executed, by the Holder thereof or his attorney
duly authorized in writing, with such signature guaranteed by a brokerage firm
or financial institution that is a member of a Securities Approved Medallion
Program such as Securities Transfer Agents Medallion Program (STAMP), Stock
Exchange Medallion Program (SEMP) or New York Stock Exchange Inc. Medallion
Signature Program (MSP).
No service charge shall be made to a Holder for any
registration of transfer or exchange of Certificates, but the Depositor may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than exchanges pursuant to Section 5.3 not
involving any transfer.
Section 5.5. Mutilated, Destroyed, Lost and Stolen
Certificates. If (i) any mutilated Certificate is surrendered to the Trustee at
its Corporate Trust Office (in the case of Certificates) or (ii) the Depositor
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Certificate, and there is delivered to the Depositor and the
Trustee such security or indemnity as they may require to hold each of them and
any Paying Agent harmless, and neither the Depositor nor the Trustee receives
notice that such Certificate has been acquired by a bona fide purchaser, then
the Depositor shall execute and the Trustee, upon receipt of a Depositor Order,
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate a new Certificate of the same
Series and Class of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding.
Upon the issuance of any new Certificate under this Section,
the Depositor may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Certificate of any Series or Class issued pursuant
to this Section shall constitute complete and indefeasible evidence of ownership
in the Trust related to such Series, whether or not the destroyed, lost or
stolen Certificate shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Agreement equally and proportionately with
any and all other Certificates of that Series or Class duly issued hereunder.
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The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.6. Distribution of Interest; Interest Rights
Preserved. (a) Interest on any Certificate that is payable and is punctually
paid or duly provided for on any Distribution Date shall be distributed to the
Person in whose name such Certificate (or one or more Predecessor Certificates)
is registered at the close of business on the related Record Date
notwithstanding the cancellation of such Certificate upon any transfer or
exchange subsequent to such related Record Date. The distribution of interest on
Certificates shall be made at the Corporate Trust Office (except as otherwise
specified pursuant to Section 5.1) or, at the option of the Trustee, by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Certificate Register or, if provided pursuant to Section 5.1 and
in accordance with arrangements satisfactory to the Trustee, at the option of
the Holder by wire transfer to an account designated by the Holder.
(b) Subject to the foregoing provisions of this Section 5.6,
each Certificate delivered under this Agreement upon transfer of or in exchange
for or in lieu of any other Certificate shall carry the rights to interest
accrued and undistributed, and to accrue, that were carried by such other
Certificate.
(c) All computations of interest due with respect to any
Certificate of any Series or Class within such Series shall be made as specified
in the Series Supplement applicable to that particular Series or Class of
Certificates.
(d) With respect to any computations or calculations to be
made under this Agreement, the applicable Series Supplement and the
Certificates, except as otherwise provided, (i) all percentages resulting from
any calculation of accrued interest will be rounded, if necessary, to the
nearest 1/100,000 of 1% (.0000001), with five one-millionths of a percentage
point rounded upward, and (ii) all currency amounts will be rounded to the
nearest one-hundredth of a unit (with .005 of a unit being rounded upward).
(e) Notwithstanding any other provisions in this Agreement,
the right of the Holder of any Certificate to receive any of the payments
described above in this Section 5.6, and to institute suit for the enforcement
of any such payment on or after the date such payment is payable, shall not be
impaired without the consent of such Holder.
Section 5.7. Persons Deemed Owners. The Depositor, the Trustee
and the Administrative Agent, if any, and any agent of the Depositor, the
Trustee or the Administrative Agent, if any, may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions of principal of (and premium, if any) and (subject to
Section 5.6) interest, if any, on such Certificate and for all other purposes
whatsoever, whether or not such Certificate be overdue, and neither the
Depositor, the Trustee, the Administrative Agent, if any, nor any agent of the
Depositor, the Trustee nor the Administrative Agent, if any, shall be affected
by notice to the contrary. All distributions made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys distributable upon such
Certificate.
None of the Depositor, the Trustee, the Administrative Agent,
if any, or any of their agents will have any responsibility or liability for any
aspect of the records relating to or distributions made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
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In connection with any notice or other communication to be
provided to Holders pursuant to this Agreement by the Trustee with respect to
any consent or other action to be taken by Holders, the Trustee shall establish
a record date for such consent or other action and in the case of Global
Certificates, give the Depository notice of such record date not less than 15
calendar days in advance of such record date to the extent possible. Such record
date shall be the later of thirty (30) days prior to the first solicitation of
such consent or other action or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 3.19 hereof.
Section 5.8. Cancellation. Unless otherwise specified pursuant
to Section 5.1 for Certificates of any Series, all Certificates surrendered for
payment, redemption, transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. No Certificates shall be authenticated in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except as
expressly permitted by this Agreement.
Section 5.9. Global Securities. (a) If the Series Supplement
pursuant to Section 5.1 provides that a Series (or Class within such Series) of
Certificates shall be represented by one or more Global Securities, then the
Depositor shall execute and the Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent an aggregate initial Certificate
Principal Balance or Notional Amount, as applicable, equal to the aggregate
initial Certificate Principal Balance or Notional Amount, as applicable, of the
Certificates of such Series or Class to be represented by such one or more
Global Securities, (ii) shall be registered, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for the
individual Certificates represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
No Holder of a Certificate of such Series or Class will
receive a Definitive Certificate representing such Holder's interest in such
Certificate or Certificates, except as provided in Section 5.11. Unless and
until definitive, fully registered Certificates (the "Definitive Certificates")
have been issued to Holders of such Series or Class pursuant to Section 5.11:
(i) the provisions of this Section 5.9 shall be in
full force and effect;
(ii) the Certificate Registrar and the Trustee shall
be entitled to deal with the Depositary for all purposes of
this Agreement (including the distribution of principal of,
and premium, if any, and interest on the Certificates and the
giving of instructions or directions hereunder) as the sole
Holder of the Certificates of such Series or Class, and shall
have no obligation to the owners of beneficial interests in
such Series or Class (collectively, the "Certificate Owners");
(iii) to the extent that the provisions of this
Section 5.9 conflict with any other provisions of this
Agreement, the provisions of this Section 5.9 shall control;
(iv) the rights of Certificate Owners of such Series
or Class shall be exercised only through the Depositary and
shall be limited to those established by
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law and agreements between such Certificate Owners and the
Depositary or its Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of
Holders of Certificates of such Series or Class evidencing a
specified percentage of the aggregate Voting Rights of such
Series or Class, the Depositary shall be deemed to represent
such percentage only to the extent that it has received
instructions to such effect from Certificate Owners of such
Series or Class or Participants in such Depositary's system
owning or representing, respectively, such required percentage
of the beneficial interest in the Certificates of such Series
or Class and has delivered such instructions to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as such Depositary, be a clearing agency registered
under the Exchange Act and any other applicable statute or regulation.
Section 5.10. Notices to Depositary. Whenever a notice or
other communication to the Holders of a Series or Class within such Series
represented by one or more Global Securities is required under this Agreement,
unless and until Definitive Certificates for such Series or Class shall have
been issued to such Certificate Owners pursuant to Section 5.11, the Trustee
shall give all such notices and communications specified herein to be given to
Holders of the Certificates of such Series to the Depositary, and shall have no
obligation to the Certificate Owners.
Section 5.11. Definitive Certificates. If in respect of a
Series (or Class within such Series) represented by one or more Global
Securities (i) the Depositor advises the Trustee in writing that the Depositary
is no longer willing or able to properly discharge its responsibilities with
respect to the Certificates of such Series or Class and the Depositor is unable
to locate a qualified successor, (ii) the Depositor at its option advises the
Trustee in writing that it elects to terminate the book-entry system for such
Series or Class through the Depositary or (iii) after the occurrence of an
Administrative Agent Termination Event, Certificate Owners representing
beneficial interests aggregating at least a majority (or such other Required
Percentage--Definitive Certificates that may be specified in a Series
Supplement) of the Voting Rights of the Certificates of such Series or Class
advise the Depositary in writing that the continuation of a book-entry system
for such Series or Class through the Depositary is no longer in the best
interests of the Certificate Owners of such Series or Class, then the Depositary
shall notify all Certificate Owners or Participants in the Depositary's system
with respect to such Series or Class and the Trustee of the occurrence of any
such event and of the availability of Definitive Certificates for such Series or
Class to Certificate Owners of such Series or Class requesting the same. Upon
surrender to the Trustee of the Global Securities of such Series or Class by the
Depositary, accompanied by registration instructions, the Depositor shall
execute and the Trustee shall authenticate the Definitive Certificates of such
Series or Class in accordance with the instructions of the Depositary. None of
the Depositor, the Certificate Registrar or the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates of such Series or Class, the Trustee shall recognize the holders of
the Definitive Certificates of such Series or Class as Holders.
Section 5.12. Currency of Distributions in Respect of
Certificates.
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(a) Except as otherwise specified pursuant to Section 5.1 for
Certificates of any Series (or Class within such Series), distributions of the
principal of (and premium, if any) and interest on Certificates of such Series
or Class will be made in Dollars.
(b) For purposes of any provision of the Agreement where the
Holders of Outstanding Certificates may perform an act that requires that a
specified percentage of the aggregate Voting Rights of the Certificates of all
Series perform such act and for purposes of any decision or determination by the
Trustee of amounts due and not distributed for the principal of (and premium, if
any) and interest on the Certificates of all Series in respect of which moneys
are to be disbursed ratably, the principal of (and premium, if any) or notional
amount of, as applicable, and interest on the Outstanding Certificates
denominated in a Foreign Currency will be the amount in Dollars based upon
exchange rates, determined as specified pursuant to Section 5.1 for Certificates
of such Series, as of the date for determining whether the Holders entitled to
perform such act have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(c) With respect to Certificates of any Series (or Class
within such Series), any decision or determination to be made regarding exchange
rates shall be made by an Exchange Rate Agent appointed by the Depositor;
provided that such Exchange Rate Agent shall accept such appointment in writing
and the terms of such appointment shall be acceptable to the Trustee and shall,
in the opinion of the Depositor at the time of such appointment, require such
Exchange Rate Agent to make such determination by a method consistent with the
method provided in the applicable Series Supplement for the making of such
decision or determination. All decisions and determinations of such Exchange
Rate Agent regarding exchange rates shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Depositor, the Trustee and all Holders of the Certificates of
such Series or Class.
(d) If distributions in respect of a Certificate are required
to be made in a Specified Currency other than Dollars and such currency is
unavailable due to the imposition of exchange controls or other circumstance
beyond the control of the Trustee, the Administrative Agent, if any, and the
Depositor or is no longer used by the government of the country issuing such
Specified Currency or is no longer commonly used for the settlement of
transactions by public institutions of or within the international banking
community, then all distributions in respect of such Certificate shall be made
in Dollars until such Specified Currency is again so used in the manner
specified in the related Series Supplement.
Section 5.13. Conditions of Authentication and Delivery of New
Series. Certificates of a new Series may be issued at any time and from time to
time after the execution and delivery of this Agreement. The Depositor shall
execute and deliver Certificates of such Series to the Trustee and the Trustee
shall authenticate and deliver such Certificates upon a Depositor Order and upon
delivery by the Depositor to the Trustee of the following:
(1) Board Resolution. A Board Resolution (or action by a
Person authorized by Board Resolution) authorizing
the execution, authentication and delivery of the
Certificates and specifying the Series, the Classes
within such Series and their respective Final
Scheduled Distribution Dates, priorities as to
distributions of principal, premium (if any) and
interest, aggregate initial Certificate Principal
Balances and Notional Amounts, if any, and Pass
Through Rates of, if any, each Class of such Series
of Certificates to be authenticated and delivered
and the method of calculation thereof.
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(2) Series Supplement. A Series Supplement consistent
with the applicable provisions of this Agreement,
accompanied by a Board Resolution (or action by a
Person authorized by Board Resolution) authorizing
such Series Supplement (and, in the case of the
first Series to be authenticated and delivered
hereunder, authorizing this Agreement).
(3) Certificates of the Depositor.
(a) An Officer's Certificate of the Depositor,
dated as of the Closing Date, to the effect
that the Depositor is not in breach of this
Agreement and that the issuance of the
Certificates applied for will not result in
any breach of any of the terms, conditions,
or provisions of, or constitute a default
under, the Depositor's Certificate of
Incorporation or bylaws, or any indenture,
mortgage, deed of transfer or other
agreement or instrument to which the
Depositor is a party or by which it or its
property is bound or any order of any court
or administrative agency entered in any
Proceeding to which the Depositor is a party
or by which it or its property may be bound
or to which it or its property may be
subject.
(b) An Officer's Certificate of the Depositor,
dated as of the Closing Date, to the effect
that attached thereto are true and correct
copies of letters signed by the Rating
Agency (or other evidence satisfactory to
the Trustee) and confirming that the
related Certificates have received the
Required Rating.
(4) Requirements of Series Supplement. Such other funds,
accounts, documents, certificates, agreements,
instruments or opinions as may be required by the
terms of the Series Supplement creating such Series.
If all the Certificates of a Series are not to be originally
issued at the same time, then the documents required to be delivered pursuant to
this Section 5.13 must be delivered only once, prior to the authentication and
delivery of the first Certificate of such Series; provided, however, that any
subsequent Depositor Order to the Trustee to authenticate Certificates of such
Series upon original issuance shall constitute a representation and warranty by
the Depositor that, as of the date of such request, the statements made in the
Officer's Certificates delivered pursuant to this Section 5.13 shall be true and
correct as if made on such date.
Section 5.14. Appointment of Paying Agent. The Trustee may
appoint one or more paying agents (each, a "Paying Agent") with respect to the
Certificates of any Series. Any such Paying Agent shall be authorized to make
distributions to Certificateholders of such Series from the Certificate Account
for such Series pursuant to the provisions of the applicable Series Supplement
and shall report the amounts of such distributions to the Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from such Certificate
Account for the purpose of making the distributions referred to above. The
Trustee may revoke such power and remove the Paying Agent if the Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be the Trustee and any co-paying agent chosen by the
Depositor and acceptable to the Trustee, including, if and so long as any Series
or Class within such Series is listed on the Luxembourg Stock Exchange and such
exchange so requires, a co-paying agent in
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Luxembourg or another European city. Any Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' notice to the Trustee. In the event that
the Trustee shall no longer be the Paying Agent, the Trustee shall appoint a
successor or additional Paying Agent. The Trustee shall cause each successor to
act as Paying Agent to execute and deliver to the Trustee an instrument in which
such successor or additional Paying Agent shall agree with the Trustee that (i)
it will hold all sums, if any, held by it for distribution to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be distributed to such Certificateholders and (ii)
it will give the Trustee notice of any default by any obligor on the applicable
Series of Certificates or on the Term Assets. The Paying Agent shall return all
unclaimed funds to the Trustee and upon removal shall also return all funds in
its possession to the Trustee. The provisions of Sections 8.1, 8.2, 8.3, 8.5 and
8.9 shall apply to the Trustee also in its role as Paying Agent, for so long as
the Trustee shall act as Paying Agent. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise. Notwithstanding anything contained herein to the contrary, the
appointment of a Paying Agent pursuant to this Section 5.14 shall not release
the Trustee from the duties, obligations, responsibilities or liabilities
arising under this Agreement other than with respect to funds paid to such
Paying Agent.
Section 5.15. Authenticating Agent. (a) The Trustee may
appoint one or more Authenticating Agents (each, an "Authenticating Agent") with
respect to the Certificates of any Series which shall be authorized to act on
behalf of the Trustee in authenticating such Certificates in connection with the
issuance, delivery and registration of transfer or exchange of such
Certificates. Whenever reference is made in this Agreement to the authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
must be acceptable to the Depositor and the Administrative Agent, if any.
Notwithstanding anything contained herein to the contrary, the appointment of an
Authenticating Agent pursuant to this Section 5.15 shall not release the Trustee
from the duties, obligations, responsibilities or liabilities arising under this
Agreement.
(b) Any institution succeeding to the corporate agency
business of any Authenticating Agent shall continue to be an Authenticating
Agent without the execution or filing of any power or any further act on the
part of the Trustee or such Authenticating Agent. An Authenticating Agent may at
any time resign by giving notice of resignation to the Trustee and to the
Depositor. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving notice of termination to such Authenticating Agent and to the
Depositor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an Authenticating Agent shall cease to be
acceptable to the Trustee or the Depositor, the Trustee promptly may appoint a
successor Authenticating Agent. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless acceptable to the Administrative Agent, if any, and
the Depositor. The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section. The
provisions of Section 8.1, 8.2, 8.3 and 8.9 shall be applicable to any
Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
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This is one of the Certificates described in the Trust
Agreement and the related Series Supplement.
----------------------------
----------------------------
as Authenticating Agent
for the Trustee,
By__________________________
Authorized Signatory
Section 5.16. Events of Default. If any Event of Default shall
occur and be continuing with respect to any class of Certificates, then, and in
each and every case, the Trustee shall exercise any rights in respect of the
related Term Assets as provided in the applicable Series Supplement.
Section 5.17. Control by Holders. The Holders of Outstanding
Certificates representing the Required Percentage -- Direction of Trustee shall,
subject to provision being made for indemnification against costs, expenses and
liabilities in a form satisfactory to the Trustee, have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Trustee with respect to any Issuer Payment Default; provided, however, that:
(i) such direction shall not be in conflict with any rule of
law or with this Agreement;
(ii) subject to Section 8.7, the Trustee need not take any
action that it determines might cause it to incur any liability or
might materially adversely affect the rights of any Holders not
consenting to such action.
Section 5.18. Waiver of Past Defaults.
The Holders of Outstanding Certificates representing the
Required Percentage -- Direction of Trustee may waive any past default and its
consequences except (i) an Issuer Payment Default or other default in the
payment of principal of or interest on any of the Certificates or (ii) a default
in respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Certificate. In the case of any such
waiver, the Depositor, the Trustee and the Holders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
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ARTICLE VI
The Depositor and the Administrative Agent
Section 6.1. Preparation and Filing of Exchange Act Reports;
Obligations of the Depositor and the Administrative Agent. (a) The
Administrative Agent, if any, shall be liable in accordance herewith only to
the extent of the obligations specifically imposed by this Agreement and the
related Series Supplement. The Trustee shall:
(i) on behalf of the Trust, prepare for signature by the
Depositor and file with the Commission, following the execution thereof
by the Depositor, within the time period set forth below, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe), if any, which
the Depositor on behalf of the Trust may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
(collectively, "Reports") with respect to the Trust. The names of such
Reports and the dates on which they are required to be filed with the
Commission are as follows:
(A) Form 8-K, in substantially the form previously
provided by the Depositor to the Trustee, within 15 calendar days after the
Closing Date and each Distribution Date, and within the time advised to the
Trustee by the Depositor if the filing of Form 8-K is necessary for any other
reason;
(B) Form 10-K, in substantially the form previously
provided by the Depositor to the Trustee, within 90 calendar days after December
31 of each year; and
(C) such other Reports as the Depositor requests the
Trustee to prepare and file from time to time as may be required pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) receive from the Depositor, within 15 days after the
Depositor is required to file the same with the Commission, such
additional information, documents and reports with respect to
compliance by the Depositor with the conditions and covenants of this
Agreement, if any, as may be required to be filed with the Commission
from time to time by such rules and regulations;
(iii) receive from the Depositor and transmit by mail to all
Holders described in TIA Section 313(c), in the manner and to the
extent provided therein, such summaries of any information, documents
and reports required to be filed by the Depositor and received pursuant
to clauses (i) and (ii) of this Section 6.1(a), if any, as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) The Depositor shall deliver to the Trustee, not less often
than annually, an Officer's Certificate signed by an Executive Officer who is
the principal executive officer, principal financial officer or principal
accounting officer of the Depositor, dated as of the date set forth in the
Series Supplement for such year, stating that:
(i) a review of the activities of the Depositor during such
fiscal year and of performance under this Agreement has been made under
such Executive Officer's supervision; and
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(ii) to the best of such Executive Officer's knowledge, based
on such review, the Depositor has fulfilled all of its obligations
under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such
default known to such Executive Officer and the nature and status
thereof. A copy of such certificate may be obtained by any Holder by a
request in writing to the Depositor addressed to the Corporate Trust
Office of the Trustee.
(c) If and only if the Series Supplement provides for the
pledge of the Term Assets to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee), on
the Closing Date, the Depositor shall furnish to the Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Agreement, any
agreements supplemental hereto and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements as are necessary to perfect and make effective the lien and security
interest of this Agreement and reciting the details of such action, or stating
that, in the opinion of such counsel, no such action is necessary to make such
lien and security interest effective.
(d) If and only if the Series Supplement provides for the
pledge of the Term Assets to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee), at
least annually after the Closing Date, the Depositor shall furnish to the
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Agreement, any agreements supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the lien and security interest created by this Agreement and reciting
the details of such action or stating that in the opinion of such counsel no
such action is necessary to maintain the lien and security interest created by
this Agreement. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Agreement, any agreements supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Agreement until such date in the following calendar year.
(e) If and only if the Series Supplement provides for the
pledge of the Term Assets to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released
from the lien of this Agreement, the Depositor shall furnish to the
Trustee an Officer's Certificate of the Depositor certifying or stating
the opinion of each Person signing such certificate as to the fair
value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person
the proposed release will not impair the security under this Agreement
in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the
Trustee an Officer's Certificate of the Depositor certifying or stating
the opinion of any signatory thereof as to the matters described in
clause (i) above, the Depositor shall also furnish to the Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property or securities released
from the lien of this Agreement since the commencement of the then
current calendar year, as set forth in the certificates required by
clause (i) above and this clause (ii), equals 10% or more of the
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principal amount of the Outstanding Certificates, but such certificate
need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related
Officer's Certificate of the Depositor is less than $25,000 or less
than one percent of the then principal amount of the Outstanding
Certificates.
(iii) prior to the deposit with the Trustee of any securities
that are to be made the basis for the authentication and delivery of
Certificates, the withdrawal of cash constituting a part of the trust
estate or the release of any property or securities subject to the lien
of this Agreement, the Depositor shall furnish to the Trustee an
Officer's Certificate of the Depositor certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such deposit) to the Depositor of the securities to
be so deposited.
(iv) whenever the Depositor is required to furnish to the
Trustee an Officer's Certificate of the Depositor described in clause
(iii) above, the Depositor shall also deliver to the Trustee an
Independent Certificate as to the same matters, if the fair value to
the Depositor of the securities to be so deposited and of all other
such securities made the basis of any such withdrawal or release since
the commencement of the then current fiscal year of the Depositor, as
set forth in the certificates delivered pursuant to clause (iii) above
and this clause (iv), is 10% or more of the principal amount of the
Outstanding Certificates, but such a certificate need not be furnished
with respect to any securities so deposited, if the fair value thereof
to the Depositor as set forth in the related Officer's Certificate of
the Depositor is less than $25,000 or less than one percent of the
principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder,
the Trustee may, and when required by the provisions of this Agreement,
shall, execute instruments to release property from the lien of this
Agreement, or convey the Trustee's interest in the same, in a manner
and under circumstances that are consistent with the provisions of this
Agreement. No party relying upon an instrument executed by the Trustee
in connection therewith shall be bound to ascertain the Trustee's
authority, inquire into the satisfaction of any conditions precedent or
see to the application of any moneys.
(vi) the Trustee shall at such time as there are no
Outstanding Certificates and all sums due to the Trustee hereunder have
been paid, release any remaining portion of the trust estate that
secured the Certificates from the lien of this Agreement and release to
the Depositor or any other Person entitled thereto any funds then
included in the trust estate.
(f) Upon any application or request by the Depositor to the
Trustee to take any action under the provisions of this Agreement, which action
is subject to the satisfaction of a condition precedent (including any covenants
compliance with which constitutes a condition precedent), the Depositor shall
furnish to the Trustee: (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
the TIA, except that, in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Agreement, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
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(i) a statement that such signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or investigations
as is necessary to enable such signatory to express an informed opinion
as to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 6.2. Merger or Consolidation of the Depositor or the
Administrative Agent. (a) Subject to the following paragraph, the Depositor will
keep in full effect its existence, rights and franchises as a corporation under
the laws of the jurisdiction of its incorporation, and the Administrative Agent,
if any, will keep in full effect its existence, rights and franchises under the
laws of the jurisdiction of its incorporation or association. The Depositor and
the Administrative Agent, if any, each will obtain and preserve its
qualification to do business as a foreign corporation or association in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Term Assets and to perform its respective duties under this Agreement.
(b) The Depositor and an Administrative Agent, if any, may
consolidate or merge with or into any other Person, provided that:
(i) the Person (if other than the Depositor or Administrative
Agent, as applicable) formed by or surviving such consolidation or
merger shall expressly assume, by an agreement supplemental hereto
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the performance or observance of every agreement and covenant
of this Agreement on the part of the Depositor or Administrative Agent,
as applicable, to be performed or observed, all as provided herein and
in the applicable Series Supplement or Supplements;
(ii) immediately after giving effect to such transaction, no
Administrative Agent Termination Event or event which with the passage
of time or notice or both would become an Administrative Agent
Termination Event shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction; and
(iv) the Depositor or Administrative Agent, as applicable, shall
have delivered to the Trustee an Officer's Certificate and an Opinion
of Counsel each stating that such consolidation or merger and such
supplemental agreement comply with this Article VI and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
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Section 6.3. Limitation on Liability of the Depositor and the
Administrative Agent. (a) Unless otherwise expressly specified in this Agreement
or a Series Supplement, neither the Administrative Agent, if any, nor the
Depositor shall be under any obligation to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties hereunder
or under a Series Supplement or in the exercise of any of its rights or powers
if reasonable grounds exist for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(b) Neither the Depositor, an Administrative Agent, if any,
nor any of the directors, officers, employees or agents of the Depositor or such
Administrative Agent shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, any such Administrative Agent or any such person against any breach
of warranties, representations or covenants made herein, or against any specific
liability imposed on such Administrative Agent pursuant hereto, or against any
liability which would otherwise be imposed by reason of wilful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
Neither the Depositor nor an Administrative Agent, if any,
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and,
in its opinion, does not involve it in any expense or liability; provided,
however, that either of the Depositor or such Administrative Agent may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. The legal expenses and
costs of such action and any liability resulting (except any loss, liability or
expense incurred by reason of wilful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder) shall be allocated as specified in the
applicable Series Supplement.
Section 6.4. Limitation on Resignation of the Administrative
Agent. An Administrative Agent appointed pursuant to the applicable Series
Supplement shall not resign from the obligations and duties hereby imposed on it
except (a) upon appointment by the Trustee of a successor administrative agent
and receipt by the Trustee of a letter from the Rating Agency that such a
resignation and appointment will satisfy the Rating Agency Condition or (b) upon
a determination that its duties hereunder are no longer permissible under
applicable law. Any such determination pursuant to clause (b) of the preceding
sentence permitting the resignation of the Administrative Agent shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee and
the Depositor. No resignation of an Administrative Agent shall become effective
until the Trustee or a successor administrative agent shall have assumed the
Administrative Agent's responsibilities, duties, liabilities (other than those
liabilities arising prior to the appointment of such successor) and obligations
under this Agreement.
Section 6.5. Rights of the Depositor in Respect of the
Administrative Agent. An Administrative Agent appointed pursuant to the
applicable Series Supplement shall afford the Depositor and the Trustee, upon
reasonable notice, during normal business hours, access to all records
maintained by the Administrative Agent in respect of its rights and obligations
hereunder and access to officers of the Administrative Agent responsible for
such obligations. Upon request, the Administrative Agent shall furnish to the
Depositor and the Trustee the Administrative Agent's most recent financial
statements and such other information relating to its capacity to perform its
obligations under this Agreement as the Administrative Agent
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possesses. To the extent such information is not otherwise available to the
public, the Depositor and the Trustee shall not disseminate any information
obtained pursuant to the preceding two sentences without the Administrative
Agent's written consent, except as required pursuant to this Agreement to the
extent that it is appropriate to do so (i) in working with legal counsel,
auditors, taxing authorities or other governmental agencies or (ii) pursuant to
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Depositor, the
Trustee or the Trust. The Depositor may, but is not obligated to, enforce the
obligations of the Administrative Agent under this Agreement and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Administrative Agent under this Agreement or exercise the rights of the
Administrative Agent under this Agreement; provided, however, that the
Administrative Agent shall not be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Administrative Agent and is not obligated to supervise the
performance of the Administrative Agent under this Agreement or otherwise.
Section 6.6. Depositor May Purchase Certificates. The
Depositor may at any time purchase Certificates in the open market or otherwise.
Certificates so purchased by the Depositor may, at the discretion of the
Depositor, be held or resold. Certificates beneficially owned by the Depositor
will be disregarded for purposes of determining whether the required percentage
of the aggregate Voting Rights has given any request, demand, authorization,
direction, notice, consent or waiver hereunder.
Section 6.7. The Administrative Agent and Other Parties. The
Person serving as an Administrative Agent, if any, appointed pursuant to the
applicable Series Supplement may be the Depositor, the Trustee or an Affiliate
of either thereof, and may have normal business relationships with the
Depositor, the Trustee or any Affiliates thereof.
Section 6.8. Preferential Collection of Claims Against
Depositor. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent required by
TIA Section 311(a).
ARTICLE VII
Administrative Agent Termination Events
Section 7.1. Administrative Agent Termination Events. (a)
"Administrative Agent Termination Event", wherever used herein with respect to
any Series of Certificates, means any one of the following events:
(i) a failure by any Administrative Agent specified in the
applicable Series Supplement to remit to the Trustee, pursuant to the
terms of this Agreement, any funds in respect of collections on Term
Assets, Credit Support, if any, and Advances, if any, collected by the
Administrative Agent pursuant to the terms of this Agreement that
continues unremedied for a period of five days after the date upon
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Administrative Agent by the
Depositor or the Trustee (in which case notice shall be provided by
telecopy), or to the Administrative Agent, the Depositor and the
Trustee by the Holders of Certificates of such Series representing at
least 25% of the aggregate Voting Rights; or
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(ii) a failure on the part of any Administrative Agent
specified in the applicable Series Supplement to observe or perform in
any material respect any other of the covenants or agreements on the
part of the Administrative Agent contained in the Certificates of such
Series or in this Agreement which continues unremedied for a period of
30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Administrative Agent by the Depositor or the Trustee, or to the
Administrative Agent, the Depositor and the Trustee by the Holders of
Certificates of such Series representing at least 25% of the aggregate
Voting Rights; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any present
or future Federal or State bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceeding, or for the winding up or liquidation of its
affairs, shall have been entered against the Administrative Agent, if
any, specified in the applicable Series Supplement and such decree or
order shall have remained in force undischarged or unstayed for a
period of 30 days; or
(iv) any Administrative Agent specified in the applicable
Series Supplement shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Administrative Agent or of or relating to all or
substantially all its property; or
(v) any Administrative Agent specified in the applicable
Series Supplement shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) if so specified in the related Series Supplement, any
failure of the Administrative Agent, if any, specified in the
applicable Series Supplement to make any Advances required to be made
from its own funds pursuant to Section 4.3 which continues unremedied
until twelve o'clock noon New York City time on the Business Day
immediately following the day on which such Advance was required to
have been made; or
(vii) any additional Administrative Agent Termination Event
that may be specified with respect to such Series in the related Series
Supplement.
Each Series Supplement shall specify as to each of the foregoing clauses
requiring a vote of Holders of different Classes the circumstances and manner in
which the aggregate Voting Rights applicable to each such clause shall be
calculated.
(b) Unless otherwise provided in the applicable Series
Supplement and provided an Administrative Agent shall have been appointed
pursuant to the applicable Series Supplement, so long as an Administrative Agent
Termination Event with respect to the related Series of Certificates shall have
occurred and be continuing, the Depositor or the Trustee may, and at the written
direction of the Holders of Certificates evidencing not less than the "Required
Percentage--Administrative Agent Termination" of the aggregate Voting Rights,
the Trustee shall, by notice in writing to such Administrative Agent (and to the
Depositor if given by the
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Trustee or to the Trustee if given by the Depositor) terminate all the rights
and obligations of the Administrative Agent specified in the applicable Series
Supplement in its capacity as Administrative Agent with respect to such Series
under this Agreement, to the extent permitted by law, and in and to the Term
Assets relating to such Series (other than any Retained Interest of the
Administrative Agent, if any) and the proceeds thereof. On or after the receipt
by such Administrative Agent of such written notice, all authority and power of
the Administrative Agent under this Agreement relating to such Series, whether
with respect to the Certificates (other than as a Holder of any Certificate) of
such Series or the Term Assets relating to such Series or otherwise, shall pass
to and be vested in the Trustee pursuant to and under this Section 7.1(b), and
without limitation, the Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Administrative Agent, any and all documents and other instruments
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of such Term Assets and related
documents, or otherwise. The Administrative Agent, if any, specified in the
applicable Series Supplement agrees promptly (and in any event not later than
ten Business Days subsequent to such notice) to provide the Trustee with all
documents and records requested by it to enable it to assume the functions of
the Administrative Agent under this Agreement relating to such Series, and to
cooperate with the Trustee in effecting the termination of the Administrative
Agent's responsibilities and rights under this Agreement relating to such
Series, including the transfer within one Business Day to the Trustee for
administration by it of all cash amounts and investments which shall at the time
be or should have been credited by the Administrative Agent to the Certificate
Account relating to such Series or thereafter be received with respect to such
Term Assets; provided, however, that the Administrative Agent shall continue to
be entitled to receive all amounts accrued or owing to it under this Agreement
on or prior to the date of such termination, whether in respect of Advances or
otherwise, and shall continue to be entitled to the benefits of Section 6.3
notwithstanding any such termination.
Section 7.2. Trustee to Act; Appointment of Successor. On and
after the time an Administrative Agent, if any, specified in the applicable
Series Supplement receives a notice of termination pursuant to Section 7.1, the
Trustee shall be the successor in all respects to the Administrative Agent in
its capacity as Administrative Agent under this Agreement or the applicable
Series Supplement and the transactions set forth or provided for herein and
shall be subject and entitled to all the rights, responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Administrative
Agent (except for any representations or warranties of the Administrative Agent
under this Agreement and except as otherwise provided herein or in the
applicable Series Supplement) by the terms and provisions hereof including the
Administrative Agent's obligation, if any, to make Advances pursuant to Section
4.3; provided, however, that the Trustee shall not be obligated to make such
Advances pursuant to Section 4.3; and provided further, that any failure to
perform such duties or responsibilities caused by the Administrative Agent's
failure to provide information required by Section 7.1 shall not be considered a
default by the Trustee as successor to the Administrative Agent hereunder. As
compensation therefor, the Trustee shall be entitled to the amounts relating to
the Term Assets of a given Series to which such Administrative Agent would have
been entitled if the Administrative Agent had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act or if the Holders of Certificates of such
Series evidencing not less than the Required Percentage--Administrative Agent
Termination of the aggregate Voting Rights, so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, an Administrative Agent acceptable to the Rating Agency (such
acceptance to be evidenced by satisfaction of the Rating Agency Condition with
respect to such appointment) and having a net worth of not less than
$15,000,000, as the successor to such Administrative Agent under this Agreement
with respect
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to such Series in the assumption of all or any part of the responsibilities,
duties or liabilities of such Administrative Agent under this Agreement with
respect to such Series. The Trustee, the Depositor and any such successor
Administrative Agent may agree upon the compensation to be paid with respect
thereto; provided, however, that in no event shall such compensation be greater
than the compensation payable to the Administrative Agent under this Agreement.
No appointment of a successor Administrative Agent under this Agreement shall be
effective until the assumption by the successor Administrative Agent of all the
responsibilities, duties and liabilities placed on the Administrative Agent
hereunder and under the related Series Supplement. Pending appointment of a
successor Administrative Agent under this Agreement, the Trustee shall act in
such capacity as and to the extent hereinabove provided.
Section 7.3. Notification to Certificateholders. (a) Upon any
such termination pursuant to Section 7.2 or appointment of a successor
Administrative Agent, the Trustee shall give prompt written notice thereof to
Certificateholders of the affected Series in the manner provided in Section
10.5.
(b) Within 60 days after the occurrence of any Administrative
Agent Termination Event or event which but for the lack of notice or passage of
time or both would constitute an Administrative Agent Termination Event with
respect to any Series, the Trustee shall transmit by mail to all
Certificateholders of such Series notice of each such Administrative Agent
Termination Event or event which but for lack of notice or passage of time or
both would constitute an Administrative Agent Termination Event which is known
to the Trustee, unless such Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event shall have been cured or waived.
Section 7.4. Waiver of Administrative Agent Termination
Events. Unless otherwise provided in the applicable Series Supplement, the
Holders of Certificates of the related Series evidencing not less than the
Required Percentage--Waiver of the aggregate Voting Rights may, on behalf of all
Certificateholders of such Series, (i) if so provided in the applicable Series
Supplement, waive compliance by the Depositor, the Trustee or the Administrative
Agent, if any, with certain restrictive provisions of this Agreement as set
forth in such Series Supplement prior to the time such compliance is required
and (ii) waive any Administrative Agent Termination Event or event which but for
lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series; provided, however, that an
Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event with respect to such Series regarding the failure to distribute, in
accordance with the terms of this Agreement, amounts received with respect to
any Term Asset or any such event with respect to such Series in respect of a
covenant or provision of this Agreement the modification or amendment of which
would require the consent of the Holders of all outstanding Certificates of such
Series, may be waived only by all the Certificateholders of such Series. Upon
any such waiver of an Administrative Agent Termination Event or event which but
for lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series, such Administrative Agent
Termination Event or event which but for lack of notice or passage of time or
both would constitute an Administrative Agent Termination Event shall cease to
exist and shall be deemed to have been remedied for every purpose hereunder. No
such waiver shall extend to any subsequent or other Administrative Agent
Termination Event or event which but for lack of notice or passage of time or
both would constitute an Administrative Agent Termination Event or impair any
right consequent thereon except to the extent expressly so waived.
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ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults. (a) The
Trustee, prior to the occurrence of an Administrative Agent Termination Event or
Event of Default with respect to any Series and after the curing of all such
Administrative Agent Termination Events or Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and the related Series Supplement.
During the period an Administrative Agent Termination Event or Event of Default
with respect to any Series shall have occurred and be continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of such person's
own affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement,
the Trustee shall take action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to the Trustee's satisfaction,
the Trustee will provide notice thereof to the Depositor, Administrative Agent,
if any, and Certificateholders.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of an Administrative Agent
Termination Event or Event of Default with respect to any Series, and
after the curing of all such Administrative Agent Termination Events or
Events of Default which may have occurred, the duties and obligations
of the Trustee shall be determined solely by the express provisions of
this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee or upon any directions or information supplied by the
Administrative Agent or the Depositor that conform to the requirements
of this Agreement;
(ii) the Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of the Required
Percentage--Direction of Trustee of the aggregate Voting Rights of a
given Series (or Class or group of Classes within such Series) relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement;
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(iv) the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any
of its duties hereunder or in the exercise of any of its rights or
powers if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in
this Agreement shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any obligations of an
Administrative Agent, if any, appointed pursuant to the applicable
Series Supplement, under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, such an Administrative Agent
in accordance with and only to the extent provided in this Agreement;
(v) except for actions expressly authorized by this Agreement,
the Trustee shall take no actions reasonably likely to impair the
interests of the Trust in any Term Asset now existing or hereafter
acquired or to impair the value of any Term Asset now existing or
hereafter acquired;
(vi) except as expressly provided in this Agreement, the Trustee
shall not engage in any activity other than those required or
authorized by the terms of this Agreement. In particular, after the
Closing Date the Trustee shall not purchase or otherwise acquire any
additional securities, modify or permit the modification of any Trust
Asset or otherwise vary the investment of the Certificateholders or
incur or modify any obligations, (i) except as expressly required or
permitted by the terms of this Agreement or (ii) unless the Trustee
obtains, at the expense of the Certificateholders, an Opinion of
Counsel to the effect that such acquisition, incurrence or modification
will not cause the Trust (unless otherwise indicated in a related
Series Supplement) to fail to be classified as a grantor trust for
federal income tax purposes; and
(vii) in the event that the Paying Agent or the Certificate
Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent
or Certificate Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated promptly upon its knowledge thereof to
perform such obligation, duty or agreement in the manner so required.
(d) The Trustee shall have the legal power to exercise all of
the rights, powers and privileges of holders of the Term Assets in which the
Certificates evidence an interest. However, neither the Trustee (except as
specifically provided herein or in the TIA) nor the Depositor shall be under any
obligation whatsoever to appear in, prosecute or defend any action, suit or
other proceeding in respect of Term Assets or Certificates.
(e) Neither the Trustee nor the Depositor shall have any
obligation on or with respect to the Term Assets, except as provided in this
Article VIII with respect to the Trustee; and their respective obligations with
respect to Certificates shall be solely as set forth in this Agreement.
(f) If there is an event of default (as defined in the
indenture or other document pursuant to which the Term Assets were issued) with
respect to any Term Asset and such default is known to the Trustee, the Trustee
shall promptly give notice to the Depository or, if the Certificates are
Definitive Certificates, directly to Holders thereof as provided in Section 10.5
hereof (and in the manner and to the extent provided in TIA Section 313(c))
within 90 days after such event of default occurs. Such notice shall set forth
(i) the identity of the Term Assets, (ii) the date and nature of such default,
(iii) the face amount of the obligation to which such default
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relates, (iv) the identifying numbers of the Series and Class of Certificates,
or any combination, as the case may be, evidencing the obligations (or portions
thereof) described above in clause (iii), and (v) any other information which
the Trustee may deem appropriate. Except in the case of a default in payment of
principal or interest (including payments pursuant to a redemption of any
Certificate), the Trustee may withhold the notice to Holders if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.
(g) Holders of Certificates shall have no recourse against the
Depositor or the Trustee for payment defaults on the Term Assets.
Section 8.2. Certain Matters Affecting the Trustee. (a)
Except as otherwise provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and any written
advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such written advice
or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Administrative Agent Termination Event or Event of
Default (which has not been cured or waived), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of such person's
own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) prior to the occurrence of an Administrative Agent
Termination Event hereunder and after the curing of all Administrative
Agent Termination Events which may have occurred, the Trustee shall not
be bound to make any investigation into the facts of matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, approval, bond or other
paper or document believed by it to be genuine, unless requested in
writing to do so by Holders of the Required Percentage--Direction of
Trustee of the aggregate Voting Rights of the affected Series (or Class
or Classes within any such Series), as specified by the applicable
Series Supplement; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the
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making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys or a custodian and shall not be liable for such persons'
actions if it has selected such persons with reasonable care; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account
or Reserve Account at the direction of an Administrative Agent or the
Depositor pursuant to Section 3.10.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the Trustee shall
be brought in its name for the benefit of all the Holders of such Certificates,
subject to the provisions of this Agreement.
Section 8.3. Trustee Not Liable for Recitals in Certificates
or Term Assets. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Certificates or in any document issued in
connection with the sale of the Certificates (other than the signature and
authentication on the Certificates). Except as set forth in Section 8.12, the
Trustee makes no representations or warranties as to the validity or sufficiency
of this Agreement or of the Certificates of any Series (other than the signature
and authentication on the Certificates) or of any Term Asset or related
document. The Trustee shall not be accountable for the use or application by the
Depositor or the Administrative Agent, if any, of any of the Certificates or of
the proceeds of such Certificates.
Section 8.4. Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 8.5. Trustee's Fees and Expenses; Indemnification;
Undertaking for Costs. (a) The Trustee shall be entitled to receive from the
Depositor or an affiliate of the Depositor as compensation for the Trustee's
services hereunder, trustee's fees pursuant to a separate agreement between the
Trustee and the Depositor, and shall be reimbursed for all reasonable expenses,
disbursements and advances incurred or made by the Trustee (including the
reasonable compensation, disbursements and expenses of its counsel and other
persons not regularly in its employ). The Depositor shall indemnify and hold
harmless the Trustee and its successors, assigns, agents and servants against
any and all loss, liability or reasonable expense (including attorney's fees)
incurred by it in connection with the administration of this trust and the
performance of its duties thereunder. The Trustee shall notify the Depositor
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Depositor shall not relieve the Depositor of its obligations
hereunder. The Depositor need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith. The indemnities contained in this
Section 8.5(a) shall survive the resignation or termination of the Trustee or
the termination of this Agreement.
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(b) Failure by the Depositor to pay, reimburse or indemnify
the Trustee shall not entitle the Trustee to any payment, reimbursement or
indemnification from the Trust, nor shall such failure release the Trustee from
the duties it is required to perform under this Agreement. Any unpaid,
unreimbursed or unindemnified amounts shall not be borne by the Trust and shall
not constitute a claim against the Trust, but shall be borne by the Trustee in
its individual capacity.
(c) All parties to this Agreement agree, and each Holder of
any Certificate by such Holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any Proceeding for the
enforcement of any right or remedy under this Agreement, or in any Proceeding
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such Proceeding of an undertaking to pay the
costs of such Proceeding and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such Proceeding, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section 8.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group of
Holders, in each case holding in the aggregate Outstanding Certificates
representing more than 10% of the Voting Rights; or
(iii) any Proceeding instituted by any Holder for the
enforcement of the payment of principal or interest on or after the
respective due dates expressed in such Certificate and in this
Agreement (or, in the case of redemption, on or after the redemption
date).
Section 8.6. Eligibility Requirements for Trustee. (a) The
Trustee shall at all times satisfy the requirements of TIA Section 310(a). The
Trustee hereunder shall at all times be a corporation which is not an Affiliate
of the Depositor (but may have normal banking relationships with the Depositor
or any obligor with respect to the Term Assets with respect to such Series of
Certificates and their respective Affiliates) organized and doing business under
the laws of any State or the United States, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation or association publishes reports of conditions at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
conditions so published. Such corporation or association must be rated in one of
the four highest rating categories by the Rating Agency.
(b) The Trustee shall comply with Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1), any Series Supplement under which other securities are outstanding
evidencing ownership interest in obligations of the Term Assets Issuer if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 8.7. Resignation or Removal of the Trustee. (a) The
Trustee may, with respect to any Series of Certificates, at any time resign and
be discharged from any trust hereby created by giving written notice thereof to
the Depositor, the Administrative Agent, if any, the Rating Agency and to all
Certificateholders of such Series. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor trustee for such Series by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the
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successor trustee. A copy of such instrument shall be delivered to such
Certificateholders and the Administrative Agent, if any, by the Depositor. If no
such successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee for such Series.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.6 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders and the Administrative Agent, if any, by the
Depositor.
(c) The Holders of Certificates of any Series representing the
Required Percentage--Removal of Trustee of the aggregate Voting Rights may at
any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact and duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor trustee so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Administrative
Agent, if any, by the Depositor.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.8.
Section 8.8. Successor Trustee. (a) Any successor trustee
appointed as provided in Section 8.7 shall execute, acknowledge and deliver to
the Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder (either with
respect to a given Series of Certificates or with respect to all Certificates
issued under this Agreement), with the like effect as if originally named as
trustee herein. The predecessor trustee shall deliver to the successor trustee
all documents and statements held by it hereunder, and the Depositor and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations. No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.6.
(b) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Depositor shall transmit notice of the succession
of such trustee hereunder to all Holders of Certificates and to the Rating
Agency in the manner provided in Section 10.5.
Section 8.9. Merger or Consolidation of Trustee. Any
corporation or association into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation or association resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or association succeeding to the trust business of the
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Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or association shall be eligible under the provisions of Section
8.6, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust for a given Series may at the time be located, the Depositor and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of such Trust, and to vest in such Person
or Persons, in such capacity, such title to such Trust, or any part thereof,
and, subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Depositor and the Trustee may consider
necessary or desirable. If the Depositor shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Administrative Agent Termination Event shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.6 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee or co-trustees or
separate trustee or trustees shall be required under Section 8.8 hereof.
Notwithstanding anything contained herein to the contrary, the appointment of a
co-trustee pursuant to this Section 8.10 shall not release the Trustee from the
duties, obligations, responsibilities or liabilities arising under this
Agreement.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to an Administrative Agent hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to such Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
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Section 8.11. Appointment of Office or Agency. As specified in
a Series Supplement, the Trustee shall appoint an office or agency in the City
of New York where the Certificates may be surrendered for registration of
transfer or exchange, and presented for the final distribution with respect
thereto, and where notices and demands to or upon the Trustee in respect of the
Certificates of the related Series and this Agreement may be served.
Section 8.12. Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
association;
(ii) neither the execution nor the delivery by the Trustee of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will violate its charter documents or by-laws.
(iii) the Trustee has full power, authority and right to execute,
deliver and perform its duties and obligations as set forth herein and
in each Series Supplement to which it is a party and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Agreement; and
(iv) this Agreement has been duly executed and delivered by the
Trustee and constitutes the legal, valid and binding obligation of the
Trustee, enforceable in accordance with its terms, except as
enforcement may be limited by the applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
Section 8.13. Trustee to Act Only in Accordance With This
Agreement or Pursuant to Instructions of Certificateholders. The Trustee shall
only take such action or shall refrain from taking such action under this
Agreement as directed pursuant to a specific provision of this Agreement or, if
required hereunder, by all the Certificateholders, and the Trustee shall not
otherwise act in respect of the Trust; provided, however, that the Trustee shall
not be required to take any such action if it reasonably determines, or
receives, at the expense of the Certificateholders, an Opinion of Counsel (with
copies thereof delivered to the Certificateholders and the Depositor), that such
action (i) is inconsistent with the purpose of the Trust set forth in Section
2.7 or contrary to the terms hereof.
Section 8.14. Accounting and Reports to Certificateholders,
Internal Revenue Service and Others. The Trustee shall (a) maintain the books of
the Trust on a calendar year basis on the accrual method of accounting, (b)
after the close of each calendar year, deliver to each Certificateholder, as may
be required by the Code and applicable Treasury Regulations or otherwise, such
information for such year as may be required to enable each Certificateholder to
prepare its federal income tax returns, (c) as specifically directed in writing
by the Depositor, file such tax returns relating to the Trust and make such
elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as other than an association taxable as a
corporation for federal income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
any withholding tax as described in and in accordance with Subsection 4.4 with
respect to income or distributions to Certificateholders.
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Section 8.15. Signature on Returns. Except as required by law,
the Trustee shall sign on behalf of the Trust any and all tax returns of the
Trust presented to it by the Depositor in final execution form.
ARTICLE IX
Termination
Section 9.1. Termination upon Purchase or Liquidation of All
Term Assets. (a) The respective obligations and responsibilities under this
Agreement of the Depositor, the Administrative Agent, if any, and the Trustee
(other than the obligations of any such Administrative Agent to provide for and
the Trustee to make distributions to Holders of the Certificates of any given
Series as hereafter set forth) shall terminate (subject to surviving rights of
indemnity) upon the distribution to such Holders of all amounts held in all the
Accounts for such Series or by an Administrative Agent, if any, and required to
be paid to such Holders pursuant to this Agreement on the Distribution Date
coinciding with or following the earlier to occur of (i) if and as provided in
the Series Supplement for such Series, the purchase by, and at the sole option
of, the Administrative Agent, if any, or the Depositor, as provided in the
Series Supplement for such Series, of all remaining Term Assets for such Series
in the Trust for such Series on any Distribution Date, provided that such option
may be exercised only if the aggregate principal amount of such Term Assets at
the time of any such purchase is less than 10% (or such other percentage as may
be specified in such Series Supplement) of the aggregate principal amount of all
Term Assets deposited in such Trust as of the applicable Cut-off Date and (ii)
the final payment on or other liquidation (which may include redemption or other
purchase thereof by the applicable Term Assets Issuer) (or any Advance with
respect thereto) of the last Term Asset remaining in the Trust for such Series
or the disposition of all property acquired upon foreclosure or liquidation of
any such Term Asset; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James, living on the date hereof.
(b) The Depositor or an Administrative Agent, as the case may
be, shall exercise its option to purchase all the Term Assets remaining in the
Trust pursuant to clause (i) of Section 9.1(a) not later than 91 days prior to
the anticipated date of purchase of all such Term Assets, at a price as may be
specified in the applicable Series Supplement; provided, however, that such
price shall not be less than the then outstanding aggregate principal amount of
such Term Assets as determined on the date of purchase. The proceeds of such
purchase will be deposited into the Certificate Account and applied in the same
manner and priority that collections on Term Assets would be applied as provided
in the applicable Series Supplement.
(c) Written notice of any termination shall be provided as
set forth in Section 10.5.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Scheduled Distribution Date, or the Distribution
Date coinciding with or next following the earlier to occur of the occurrences
specified in clauses (i) and (ii) of Section 9.1(a), with respect to the
applicable Series of Certificates, the Trustee shall distribute to each Holder
presenting and surrendering its Certificates (i) the amount otherwise
distributable on such Distribution Date in accordance with Section 4.1 in
respect of the Certificates so presented and surrendered, if not in connection
with the purchase by an Administrative Agent or the Depositor of all the Term
Assets or (ii) as specified in the applicable Series Supplement,
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if in connection with an Administrative Agent's purchase of all the remaining
Term Assets. Any funds not distributed on such Distribution Date shall be set
aside and held in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner, and shall be disposed
of in accordance with this Section 9.1 and Section 4.1 hereof. Immediately
following the deposit of funds in trust hereunder, the Trust for such Series
shall terminate.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment. (a) This Agreement may be amended
from time to time by the Depositor and the Trustee without notice to or the
consent of any of the Certificateholders for any of the following purposes: (i)
to cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein; (ii) to add or
supplement any Credit Support for the benefit of any Certificateholders
(provided that if any such addition affects any series or class of
Certificateholders differently that any other series or class of
Certificateholders, then such addition will not, as evidenced by an opinion of
counsel, have a material adverse effect on the interests of any affected series
or class of Certificateholders); (iii) to add to the covenants, restrictions or
obligations of the Depositor, the Administrative Agent, if any, or the Trustee
for the benefit of the Certificateholders; (iv) to add, change or eliminate any
other provisions with respect to matters or questions arising under this
Agreement, so long as (x) any such amendment described in (i) through (iv) will
not, as evidenced by an opinion of counsel, cause the Trust (unless otherwise
specified in a related Series Supplement) to fail to qualify as a grantor trust
for federal income tax purposes or result in a sale or exchange of any
Certificate for tax purposes and (y) the Trustee has received written
confirmation from each Rating Agency rating such Certificates that such
amendment will not cause such Rating Agency rating such Certificates to reduce
or withdraw the then current rating thereof; (v) to comply with any requirements
imposed by the Code; (vi) to evidence and provide for the acceptance of
appointment hereunder of a Trustee other than First Trust Company of New York,
National Association, as Trustee for a Series of Certificates, and to add to or
change any of the provisions of this Agreement as shall be necessary to provide
for or facilitate the administration of the separate Trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 5.1 hereof; (vii) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Certificates of one or more Series or to add or
change any of the provisions of this Agreement as shall be necessary to provide
for or facilitate the administration of the trusts hereunder; or (viii) to
provide for the issuance of a new Series of Certificates pursuant to a Series
Supplement issued hereunder pursuant to Sections 5.1 and 5.13 hereof.
(b) Without limiting the generality of the foregoing, with
respect to any Series this Agreement may also be modified or amended from time
to time by the Depositor and the Trustee with the consent of the Holders of
Certificates representing the Required Percentage--Amendment of the aggregate
Voting Rights of those Certificates to which such modification or amendment
relates for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or alter the timing
of, payments received on Term Assets which are required to be distributed on any
Certificate without the unanimous consent of the Holders of such Certificates,
(ii) adversely affect in any material respect the interests of the Holders of
any Series (or Class within such Series) of Certificates in a manner other than
as described in (i),
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without the consent of the Holders of Certificates of such Series or Class
evidencing not less than the Required Percentage--Amendment of the aggregate
Voting Rights of such Series or Class or (iii) reduce the percentage of
aggregate Voting Rights required by (ii), as described in (ii), without the
consent of the Holders of all Certificates of such Series or Class then
Outstanding; and provided further that the Depositor shall furnish to the
Trustee an Opinion of Counsel (unless otherwise indicated in a related Series
Supplement) stating that, in the opinion of such counsel, any such amendment
would not affect the characterization of the Trust as a "grantor trust" for
federal income tax purposes. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 10.1, Certificates registered in the name of the Depositor, or any
Affiliate thereof, shall be entitled to Voting Rights with respect to matters
affecting such Certificates; and provided further that in the event the Rating
Agency Condition is not satisfied with respect to such modification or
amendment, the Required Percentage--Amendment shall be increased to require an
aggregate percentage of the aggregate Voting Rights in the amount specified in
the applicable Series Supplement. Notwithstanding any other provision of this
Agreement, this Section 10.1(b) shall not be amended without the unanimous
consent of the Holders of all such Certificates.
(c) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or modification
to each Certificateholder of the affected Series or Class and to the Rating
Agency. It shall not be necessary for the consent of Certificate-holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 10.2. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.3. Limitation on Rights of Certificateholders. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
(b) No Certificateholder of a given Series shall have any
right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of any Trust, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder of a given Series shall have any
right by virtue of any provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement, unless (i) such Holder previously shall have given to the Trustee a
written notice of breach and of the continuance thereof and unless also the
Holders of Certificates of such Series evidencing not less than the Required
Percentage--Remedies of the aggregate Voting Rights of such Series shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
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expenses and liabilities to be incurred therein or thereby, and the Trustee, for
15 days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding. It
is understood and agreed that the Trustee shall not be obligated to make any
investigation of matters arising under this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any Certificateholders unless such Certificateholders have
offered to the Trustee the reasonable indemnity referred to above. It is further
understood and agreed, and expressly covenanted by each Certificateholder of
each Series with every other Certificateholder of such Series and the Trustee,
that no one or more Holders of Certificates of such Series shall have any right
in any manner whatever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates
of such Series, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except in
the manner herein provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 10.4. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely therein without reference to
such State's principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 10.5. Notices. All directions, demands and notices
hereunder shall be in writing and shall be delivered as set forth in the
applicable Series Supplement. Any notice required to be provided to a Holder of
a Certificate shall be given by first class mail, postage prepaid, at the last
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
Section 10.6. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.7. Notice to Rating Agency. The Trustee shall use
its best efforts promptly to provide notice to the Rating Agency with respect to
each of the following of which it has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Administrative Agent Termination
Event;
(iii) the resignation or termination of an Administrative
Agent, if any, or the Trustee;
(iv) the repurchase or substitution of Term Assets, if any,
pursuant to Section 2.3;
(v) the final payment to Holders of the Certificates of any
Class;
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(vi) any change in the location of the Certificate Account;
and
(vii) any event that would result in the inability of the
Trustee to make Advances.
In addition, the Trustee shall promptly furnish to each Rating Agency copies of
each report to Certificateholders described in Section 4.2 and the
Administrative Agent, if any, or otherwise the Trustee shall promptly furnish to
each Rating Agency copies of the following:
(i) each annual statement as to compliance described in
Section 3.15; and
(ii) each annual independent public accountants' servicing
report described in Section 3.16.
Any such notice pursuant to this Section shall be in writing and shall be deemed
to have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to each Rating Agency at the
address specified in the applicable Series Supplement.
Section 10.8. Grant of Security Interest. It is the express
intent of the parties hereto that each conveyance of any Term Assets by the
Depositor to the Trustee be, and be construed as, a sale of the Term Assets by
the Depositor and not a pledge of any Term Assets by the Depositor to secure a
debt or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, any Term Assets are
held to be property of the Depositor, then, (a) it is the express intent of the
parties that such conveyance be deemed a pledge of such Term Assets by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor
and (b)(1) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York, or such other State as may be specified
in the related Series Supplement; (2) the conveyance provided for in Section 2.1
hereof shall be deemed to be a grant by the Depositor to the Trustee of a
security interest in all the Depositor's right, title and interest in and to
such Term Assets and all amounts payable to the holders of such Term Assets in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including all amounts from time to time held or invested in the
applicable Certificate Account, whether in the form of cash, instruments,
securities or other property; (3) the obligations secured by such security
agreement shall be deemed to be all the Depositor's obligations under this
Agreement, including the obligation to provide to the Certificateholders the
benefits of this Agreement relating to such Term Assets and the applicable
Trust; and (4) notifications to persons holding such property, and
acknowledgements, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgements, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee a security interest in
the Term Assets and all other property described in clause (2) of the preceding
sentence, for the purpose of securing to the Trustee the performance by the
Depositor of the obligations described in clause (3) of the preceding sentence.
Notwithstanding the foregoing, the parties hereto intend the Grant pursuant to
Section 2.1 to be a true, absolute and unconditional sale of the Term Assets and
assets constituting the applicable Trust by the Depositor to the Trustee. The
Depositor shall direct the Trustee to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Term Assets, such security interest
would be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such for so long as any of the Term
Assets remain
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outstanding. Without limiting the generality of the foregoing, the Trustee, upon
receipt of such direction, shall file, or shall cause to be filed, all filings
identified by the Depositor to be necessary to maintain the effectiveness of any
original filings identified by the Depositor to be necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Term Assets, including (x) continuation
statements and (y) such other statements as may be occasioned by (1) any change
of name of the Depositor or the Trustee, (2) any change of location of the place
of business or the chief executive office of the Depositor or (3) any transfer
of any interest of the Depositor in any Term Asset.
Section 10.9. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of the Trustee (including any Co-Trustee)
the Administrative Agent, if any, (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) and the Depositor
agrees that it shall not, until the date which is one year and one day after the
earlier of a Trust Termination Event or the Final Scheduled Distribution Date,
as defined in the related Series Supplement, acquiesce, petition or otherwise
invoke or cause the Trust to invoke the process of the United States of America,
any State or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government for the purpose of commencing or sustaining a case by
or against the Trust under a Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or all or any part of the
property or assets of the Trust or ordering the winding up or liquidation of the
affairs of the Trust.
Section 10.10. No Recourse. Provided that there exists no
default on the Term Assets, neither the Trustee (including any Co-Trustee), the
Administrative Agent, if any (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) nor the Depositor
shall have any recourse to the Term Assets, except as specifically provided in
the related Series Supplement.
Section 10.11. Article and Section References. All article
and section references used in this Agreement, unless otherwise provided, are to
articles and sections in this Agreement.
Section 10.12. Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts
with another provision hereof that is required to be included in this Agreement
by any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Agreement) are a part of and govern
this Agreement, whether or not physically contained herein.
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IN WITNESS WHEREOF, the Depositor and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
STRUCTURED PRODUCTS CORP.,
as Depositor
By: /s/ Timothy P. Beaulac
--------------------------------
Authorized Signatory
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Marlene Fahey
--------------------------------
Authorized Signatory
<PAGE>
================================================================================
SERIES IBM 1997-4 SUPPLEMENT
between
STRUCTURED PRODUCTS CORP.,
as Depositor
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as Trustee
TIERS(sm) Corporate Bond-Backed Certificates Trust IBM 1997-4
================================================================================
<PAGE>
</TABLE>
<TABLE>
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TABLE OF CONTENTS
Page
<S> <C>
PRELIMINARY STATEMENT........................................................................................... 1
SECTION 1. Certain Defined Terms..................................................................... 1
SECTION 2. Creation and Declaration of Trust; Grant of Term Assets;
Acceptance by Trustee..................................................................... 7
SECTION 3. Designation............................................................................... 7
SECTION 4. Date of the Certificates.................................................................. 7
SECTION 5. Certificate Principal Balance and Denominations........................................... 7
SECTION 6. Currency of the Certificates.............................................................. 7
SECTION 7. Form of Securities........................................................................ 8
SECTION 8. [RESERVED.]............................................................................... 8
SECTION 9. Certain Provisions of Base Trust Agreement Not Applicable................................. 8
SECTION 10. Distributions............................................................................. 8
SECTION 11. [RESERVED.]............................................................................... 9
SECTION 12. Termination of Trust...................................................................... 9
SECTION 13. Limitation of Powers and Duties........................................................... 10
SECTION 14. Compensation of Trustee................................................................... 11
SECTION 15. Modification or Amendment................................................................. 11
SECTION 16. Accounting................................................................................ 11
SECTION 17. No Investment of Amounts Received on Term Assets.......................................... 12
SECTION 18. No Event of Default....................................................................... 12
SECTION 19. Notices................................................................................... 12
SECTION 20. Access to Certain Documentation........................................................... 13
</TABLE>
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Page
<S> <C>
SECTION 21. Advances.................................................................................. 13
SECTION 22. [RESERVED.]............................................................................... 13
SECTION 23. Ratification of Agreement................................................................. 13
SECTION 24. Counterparts.............................................................................. 13
SECTION 25. Governing Law............................................................................. 13
SECTION 26. Trustee Election.......................................................................... 13
SECTION 27. Covenant of Depositor......................................................................13
SECTION 28. Depositor's Exchange Right.................................................................13
EXHIBIT A -- Form of Amortizing Class Certificate
EXHIBIT B -- Form of ZTF Class Certificate
SCHEDULE 1 -- Identification of Term Assets
SCHEDULE 2 -- Amortizing Class Certificates-Schedule of Amortizing Payments
</TABLE>
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SERIES IBM 1997-4 SUPPLEMENT dated as of June 16, 1997 (this
"Series Supplement") between STRUCTURED PRODUCTS CORP., a
Delaware corporation, as depositor (the "Depositor"), and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a New York
banking corporation, as trustee (the "Trustee").
PRELIMINARY STATEMENT
Pursuant to the Base Trust Agreement dated as of June 16, 1997
(as amended and supplemented pursuant to a Series Supplement, the "Agreement"),
among the Depositor and the Trustee, such parties may at any time and from time
to time enter into a series supplement supplemental to the Agreement for the
purpose of creating a trust. Section 5.13 of the Agreement provides that the
Depositor may at any time and from time to time direct the Trustee to
authenticate and deliver, on behalf of any such trust, a new Series of trust
certificates. Each trust certificate of such new Series of trust certificates
will represent a fractional undivided beneficial interest in such trust. Certain
terms and conditions applicable to each such Series are to be set forth in the
related series supplement to the Agreement.
Pursuant to this Series Supplement, the Depositor and the
Trustee shall create and establish a new trust to be known as TIERS Corporate
Bond-Backed Certificates Trust IBM 1997-4, and a new Series of trust
certificates to be issued thereby, which certificates shall be known as the
TIERS(sm) Corporate Bond-Backed Certificates, Series IBM 1997-4 (the
"Certificates"), and the Depositor and the Trustee shall herein specify certain
terms and conditions in respect thereof.
The Certificates shall be Fixed Rate Certificates issued in
two Classes consisting of (a) the Amortizing Class Certificates (the "Amortizing
Class Certificates"), and (b) the ZTF Class Certificates (the "ZTF Class
Certificates").
On behalf of and pursuant to the authorizing resolutions of
the Board of Directors of the Depositor, an authorized officer of the Depositor
has authorized the execution, authentication and delivery of the Certificates,
and has authorized the Agreement and this Series Supplement in accordance with
the terms of Section 5.13 of the Agreement.
SECTION 1. Certain Defined Terms. (a) All terms used in this
Series Supplement that are defined in the Agreement, either directly or by
reference therein, have the meanings assigned to such terms therein, except to
the extent such terms are defined or modified in this Series Supplement or the
context requires otherwise. The Agreement also contains rules as to usage which
shall be applicable hereto.
(b) Pursuant to Article I of the Agreement, the meaning of
certain defined terms used in the Agreement shall, when applied to the trust
certificates of a particular Series, be as defined in Article I but with such
additional provisions and modifications as are specified in the related series
supplement. With respect to the Certificates, the following definitions shall
apply:
"Acceleration": The acceleration of the maturity of the Term
Assets after the occurrence of a default under the Term Assets (other than a
Payment Default).
<PAGE>
"Aggregate Amortized Amount": The aggregate Amortized Amount
of all the Amortizing Class Certificates.
"Aggregate Certificate Principal Balance": The Aggregate
Certificate Principal Balance of the ZTF Class Certificates as of any date of
determination shall be equal to the aggregate principal balance of the Term
Assets in the Trust as of such date of determination. The Aggregate Certificate
Principal Balance of the Amortizing Class Certificates as of any date of
determination shall be equal to the Aggregate Amortized Amount.
"Amortized Amount": For any Amortizing Class Certificate of
$1,000 denomination, initially, $1,000. On each Distribution Date, the Amortized
Amount will be reduced by the positive difference between (i) the Fixed Payment
made on such Distribution Date and (ii) interest accrued on the Certificate
Principal Balance at the Amortizing Class Yield during the Interest Accrual
Period.
"Amortizing Class Final Distribution Date": June 1, 2017.
"Amortizing Class Yield": 7.35% per annum.
"Available Funds": As of any Distribution Date, the aggregate
amount received on or with respect to the Term Assets on or with respect to such
Distribution Date.
"Business Day": Any day other than a Saturday, Sunday or a
day on which banking institutions in New York, New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"Certificateholder" or "Holder": With respect to any
Amortizing Class Certificate or ZTF Class Certificate, the Holder thereof.
"Certificate Principal Balance": For any ZTF Class
Certificate, a pro rata portion of the then outstanding Term Assets; for any
Amortizing Class Certificate, the Amortized Amount.
"Closing Date": June 16, 1997.
"Collection Account": With respect to each Series, an account
established and maintained by the Trustee in its corporate trust department in
the Trustee's name on behalf of the related Certificateholders, into which all
payments made on or with respect to the related Term Assets will be deposited.
"Collection Period": The period from and including the
preceding Distribution Date (or, in the case of the first Distribution Date,
from and including the Closing Date), or the next succeeding Business Day, if
such Distribution Date is not a Business Day, through and including the first
Business Day preceding the current Distribution Date.
"Comparable Treasury Issue": The United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the
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<PAGE>
Term Assets to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of such
Term Assets.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Term Assets Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such Quotations. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Term Assets Trustee, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to the Term Assets
Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such redemption date.
"Corporate Trust Office": First Trust of New York, National
Association, 100 Wall Street, Suite 1600, New York, New York 10005, Attention:
Corporate Trust or such other corporate trust office as the Trustee shall
designate in writing to the Depositor and the Certificateholders.
"Depositary": The Depository Trust Company.
"Depositor's Exchange Right": As defined in Section 28
hereof.
"Distribution Date": Any Scheduled Distribution Date, Terms
Assets Default Distribution Date, Maturity Shortening Redemption Distribution
Date or Optional Redemption Distribution Date.
"Final Scheduled Distribution Date: June 1, 2017.
"Fixed Payment": Each equal semiannual installment of
interest payable on the Term Assets through and including June 1, 2017.
"Indenture": means the indenture under which the Term Assets
were issued.
"Independent Investment Banker": One of the Reference
Treasury Dealers appointed by the Term Assets Trustee after consultation with
the Term Assets Issuer.
"Interest Accrual Period": With respect to any Scheduled
Distribution Date, the period from and including the immediately preceding
Scheduled Distribution Date (or, in the case of the first Interest Accrual
Period, from and including the Closing Date) to but excluding the current
Scheduled Distribution Date.
3
<PAGE>
"Interest Collections": With respect to any Distribution Date,
all payments received by the Trustee, during the Collection Period ending
immediately prior to such Distribution Date, in respect of (i) interest on the
Term Assets and (ii) penalties or other amounts required to be paid because of
late payments on the Term Assets.
"Maturity Shortening Redemption": A redemption of the
Certificates in whole, but not in part, as a result of the Shortened Maturity
Date occurring on or prior to June 1, 2017.
"NYSE": The New York Stock Exchange, Inc.
"Optional Redemption": An optional redemption of the Term
Assets by the Term Assets Issuer, in whole or in part.
"Optional Redemption Distribution Date": The date on which
the Trustee receives proceeds of an Optional Redemption.
"Optional Redemption Price": The redemption price payable by
the Term Assets Issuer upon an Optional Redemption, which price will be equal to
the greater of (i) 100% of the principal amount of the Term Assets to be
redeemed; and (ii) the sum of the present values of the Remaining Scheduled
Payments thereon discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 15 basis points, plus in either case accrued interest on the principal
amount being redeemed to the date of redemption.
"Payment Default": A default by the Term Assets Issuer in the
payment of any amount due (and the continuation thereof for any applicable grace
period on the Term Assets).
"Pass-Through Rate": 7-1/8% per annum.
"Place of Distribution": New York, New York.
"Principal Collections": All principal payments received by
the Trustee on the Term Assets, including the principal portion of redemption
price, and any premium, in the event of an Optional Redemption or Maturity
Shortening Redemption.
"Rating Agency": Each of Moody's Investors Service, Inc.
("Moody's"), and Standard & Poor's Ratings Services ("S&P"), a division of The
McGraw-Hill Companies, Inc., and any successor to either of the foregoing.
References to "the Rating Agency" in the Agreement shall be deemed to be each
such credit rating agency.
"Record Date": With respect to any Distribution Date, the day
immediately preceding such Distribution Date.
"Reference Treasury Dealer": Each of Salomon Brothers Inc,
Chase Securities Inc., CS First Boston Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York
4
<PAGE>
City (a "Primary Treasury Dealer") the Term Assets Issuer will substitute
therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments": With respect to any Term
Asset, the remaining scheduled payments of the principal thereof to be redeemed
and interest thereon would be due after the related redemption date but for such
redemption; provided, however, that, if such redemption date is not an interest
payment date with respect to such Term Asset, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
"Required Percentage--Direction of Trustee": For purposes of
this Series Supplement, 66-2/3% of the aggregate Voting Rights of the
Certificates.
"Required Percentage--Remedies": For purposes of this Series
Supplement, 66-2/3% of the aggregate Voting Rights of the Certificates.
"Scheduled Distribution Date": The first day of each June and
December, or, if any such day is not a Business Day, then the immediately
following Business Day, commencing December 1, 1997, through and including June
1, 2017; provided, however, that payment on each Scheduled Distribution Date
shall be subject to prior payment of interest or principal, as applicable, on
the Term Assets.
"Shortened Maturity Date": A maturity date for the Term
Assets other than December 1 2096, designated by the Term Assets Issuer, as a
result of a Tax Event.
"Specified Currency": United States Dollars.
"Tax Event": Means that International Business Machines
Corporation shall have received an opinion of nationally recognized independent
tax counsel to the effect that on or after the date of the issuance of the Term
Assets, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in laws, or any regulations
thereunder, of the United States, (b) any judicial decision, official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action"), or (c) any amendment to,
clarification of or change in the official position of the interpretation of
such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, on or after the date of
the issuance of the Term Assets such change in tax law creates a more than
insubstantial risk that interest paid by the Term Assets Issuer on the Term
Assets is not, or will not be, deductible, in whole or in part, by the Term
Assets Issuer for United States federal income tax purposes.
"Tax Event Distribution Date": The date on which the Trustee
receives the payment on the Term Assets due on a Shortened Maturity Date.
"Term Assets": The $100,000,000 aggregate principal amount of
7-1/8% Debentures due December 1, 2096 issued by the Term Assets Issuer,
deposited in the Trust by the Depositor and identified on Schedule 1 hereto.
5
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"Terms Assets Default Distribution Date": The date on which
the Trustee makes a distribution in kind of the Term Assets following a Payment
Default or Acceleration.
"Term Assets Issuer": International Business Machines
Corporation.
"Term Assets Payment Date": The first day of each June and
December, commencing on December 1, 1997; provided, however, that if any Term
Assets Payment Date would otherwise fall on a day that is not a Business Day,
such Term Assets Payment Date will be the following Business Day.
"Term Assets Prospectus": The prospectus of the Term Assets
Issuer, dated December 3, 1996, as supplemented by a supplement thereto dated
December 3, 1996, with respect to the Term Assets.
"Term Assets Trustee": The trustee under the Indenture.
"Treasury Rate": With respect to any redemption date on the
Term Assets, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Trust": TIERS Corporate Bond-Backed Certificates Trust IBM
1997-4.
"Trust Termination Event": (a) the distribution in kind of the
Term Assets to the ZTF Class Certificateholders on June 1, 2017, (b) the payment
in full in the Certificates following an Optional Redemption or Maturity
Shortening Redemption, or (c) the distribution in kind of the Term Assets to the
ZTF Class Certificateholders and Amortizing Class Certificateholders after a
Payment Default or an Acceleration.
"Voting Rights": The ZTF Class Certificateholders shall have
75% of the total Voting Rights with respect to the Certificates, and the
Amortizing Class Certificateholders shall have 25% of the total Voting Rights
with respect to the Certificates. Subject to the foregoing, "Voting Rights"
shall mean (a) with respect to the Amortizing Class Certificates, the voting
rights allotted to such Class, allocated among all Holders of Amortizing Class
Certificates in proportion to the respective Certificate Principal Balances held
by such Holders on any date of determination, and (b) with respect to the ZTF
Class Certificates, the voting rights allotted to such Class, allocated among
all Holders of ZTF Class Certificates in proportion to the respective
Certificate Principal Balances held by such Holders on any date of
determination.
SECTION 2. Creation and Declaration of Trust; Grant of Term
Assets; Acceptance by Trustee. (a) The Depositor, concurrently with the
execution and delivery hereof and pursuant to Section 2.1 of the Agreement, has
delivered or caused to be delivered to the Trustee the Term Assets in exchange
for the delivery to, or at the direction of the Depositor, of all of the
Certificates, representing an undivided beneficial interest in all of the assets
of the Trust.
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(b) The Trustee hereby (i) acknowledges such deposit, pursuant
to subsection (a) above, and receipt by it of the Term Assets, (ii) accepts the
trusts created hereunder in accordance with the provisions hereof and of the
Agreement but subject to the Trustee's obligation, as and when the same may
arise, to make any payment or other distribution of the assets of the Trust as
may be required pursuant to this Series Supplement, the Agreement and the
Certificates, and (iii) agrees to perform the duties herein or therein required
and any failure to receive reimbursement of expenses and disbursements under
Section 14 hereof shall not release the Trustee from its duties herein or
therein.
SECTION 3. Designation. There is hereby created a Series of
trust certificates to be issued pursuant to the Agreement and this Series
Supplement to be known as the "TIERS(sm) Corporate Bond-Backed Certificates,
Series IBM 1997-4." The Certificates shall be issued in two Classes consisting
of the Amortizing Class Certificates and the ZTF Class Certificates.
SECTION 4. Date of the Certificates. The Certificates that are
authenticated and delivered by the Trustee to or upon Depositor Order on the
Closing Date shall be dated the Closing Date. All other Certificates that are
authenticated after the Closing Date for any other purpose under the Agreement
shall be dated the date of their authentication. The Certificates shall all be
originally issued on the Closing Date.
SECTION 5. Certificate Principal Balance and Denominations.
The maximum Aggregate Certificate Principal Balance of the ZTF Class
Certificates that may be authenticated and delivered under the Agreement and
this Series Supplement is $100,000,000. The maximum Aggregate Certificate
Principal Balance of Amortizing Class Certificates that may be authenticated and
delivered under the Agreement and this Series Supplement is $74,054,000. In each
case such maximum amounts shall be calculated without regard to Certificates
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Certificates pursuant to Sections 5.3, 5.4 or 5.5 of
the Agreement. The Certificates are issuable in minimum denominations of $1,000
and in integral multiples thereof.
SECTION 6. Currency of the Certificates. All distributions
on the Certificates will be made in the Specified Currency.
SECTION 7. Form of Securities. The Certificates will be
delivered in registered form and will be represented by one or more Global
Securities issued in accordance with Section 5.9 of the Agreement and initially
registered in the name of Cede & Co. as nominee of The Depository Trust Company.
The Amortizing Class Certificates shall be in the form attached hereto as
Exhibit A and the ZTF Class Certificates shall be in the form attached hereto as
Exhibit B.
SECTION 8. [RESERVED.]
SECTION 9. Certain Provisions of Base Trust Agreement Not
Applicable. The provisions of Sections 3.12, 5.16, 5.17 and 9.1 of the Base
Trust Agreement dated as of June 16, 1997 and any other provision of the Base
Trust Agreement dated as of June 16, 1997 which imposes obligations on, or
creates rights in favor of, the Trustee or the Certificateholders
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<PAGE>
as a result of or in connection with an "Event of Default" or "Administrative
Agent Termination Event" shall be inapplicable with respect to the Certificates.
SECTION 10. Distributions. (a) On each Scheduled Distribution
Date, the Trustee shall distribute to the Holders of the Amortizing Class
Certificates, to the extent of Interest Collections constituting Available
Funds. Each Fixed Payment shall be allocated first to interest accrued at a rate
equal to the Amortizing Class Yield on the then-outstanding Aggregate
Certificate Principal Balance of the Amortizing Certificates, with the balance
of such Fixed Payment allocated to repayment of principal, in accordance with
the schedule attached hereto as Schedule 2; provided that the amount by which
the amount received in respect of the Fixed Payment due June 1, 2017 exceeds
$3,560,069.57 shall be paid to the Trustee as compensation for its services
rendered hereunder, and the Depositor shall receive a credit against the amount
which it would otherwise have owed the Trustee, in the absence of such payment,
in respect of the Trustee's fees and expenses hereunder.
(b) On June 1, 2017, the Trustee shall distribute the Term
Assets in kind to the ZTF Class Certificateholders.
(c) On each Optional Redemption Distribution Date, the Trustee
shall distribute the Optional Redemption Price to the extent received from the
Term Assets Issuer in connection with the relevant Optional Redemption, to the
Holders of the ZTF Class Certificates and the Amortizing Class Certificates in
same ratio as (i) the present value of all scheduled future payments on the Term
Assets after June 1, 2017 bears to (ii) the present value of all scheduled
future payments on the Amortizing Class Certificates, discounted semiannually in
each case at a rate of 7-1/8% per annum to the Optional Redemption Distribution
Date.
(d) On a Tax Event Distribution Date, the Trustee shall
distribute the amount received from the Term Assets Issuer on or with respect to
any Shortened Maturity Date to the Holders of the ZTF Class Certificates and the
Amortizing Class Certificates in same ratio as (i) the present value of all
scheduled future payments on the Term Assets after June 1, 2017 bears to (ii)
the present value of all scheduled future payments on the Amortizing Class
Certificates, discounted semiannually in each case at a rate of 7-1/8% per annum
to the Tax Event Distribution Date.
(e) On a Terms Assets Default Distribution Date, the Trustee
shall distribute the Term Assets in kind to the Holders of the Amortizing Class
Certificates and the Holders of the ZTF Class Certificates in the same ratio as
(i) the present value of all scheduled future payments on the Term Assets after
June 1, 2017 bears to (ii) the present value of all scheduled future payments on
the Amortizing Class Certificates, discounted semiannually in each case at a
rate of 7-1/8% per annum to the date on which acceleration of the Term Assets
occurred; provided, however, that Term Assets will be liquidated by the Trustee,
and the proceeds thereof distributed in cash, to the extent necessary (but only
to such extent) to avoid distribution of fractional securities to
Certificateholders.
(f) Distributions to the Certificateholders on each
Distribution Date will be made to the Certificateholders of record on the
related Record Date of the Amortizing Class Certificates and ZTF Class
Certificates, as applicable.
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(g) All distributions to Certificateholders of any Class shall
be allocated pro rata among the Certificates of such Class based on their
respective Certificate Principal Balances as of the Record Date with respect to
such Distribution Date.
(h) Notwithstanding any provision of the Agreement to the
contrary, to the extent funds are available, the Trustee will initiate payment
in immediately available funds by 10:00 A.M. (New York City time) on each
Distribution Date of all amounts (whether in the form of principal, interest
premium or prepayment) payable to each Certificateholder with respect to any
Certificate held by such Certificateholder or its nominee (without the necessity
for any presentation or surrender thereof or any notation of such payment
thereon) in the manner and at the address as each Certificateholder may from
time to time direct the Trustee in writing fifteen days prior to such
Distribution Date requesting that such payment will be so made and designating
the bank account to which such payments shall be so made. The Trustee shall be
entitled to rely on the last instruction delivered by the Certificateholder
pursuant to this Section 10(h) unless a new instruction is delivered 15 days
prior to a Distribution Date.
(i) The rights of the Certificateholders to receive
distributions in respect of the Certificates, and all interests of the
Certificateholders in such distributions, shall be as set forth in this Series
Supplement. The Trustee shall in no way be responsible or liable to the
Certificateholders nor shall any Certificateholder in any way be responsible or
liable to any other Certificateholder in respect of amounts previously
distributed on the Certificates based on their respective Certificate Principal
Balances.
SECTION 11. [RESERVED.]
SECTION 12. Termination of Trust. (a) The Trust shall
terminate upon the occurrence of any Trust Termination Event.
(b) Promptly after the Trustee has received a notice from the
Term Assets Trustee or the Term Assets Issuer of an Optional Redemption of the
Term Assets, a Maturity Shortening Redemption, a Payment Default or an
Acceleration, the Trustee shall provide notice to the Certificateholders of the
expected occurrence of a Trust Termination Event and the termination of the
Trust.
(c) Except for any reports and other information required to
be provided to Certificateholders hereunder and under the Agreement and except
as otherwise specified herein and therein, the obligations of the Trustee will
terminate upon the distribution to Certificateholders of all amounts or property
required to be distributed to them and the disposition of all Term Assets held
by the Trustee. The Trust shall thereupon terminate, except for surviving rights
of indemnity.
SECTION 13. Limitation of Powers and Duties. (a) The Trustee
shall administer the Trust and the Term Assets solely as specified herein and in
the Agreement.
(b) The Trust is constituted solely for the purpose of
acquiring and holding the Term Assets. The Trustee is not authorized to acquire
any other investments or engage in any activities not authorized herein and, in
particular, notwithstanding anything to the contrary in
9
<PAGE>
the Agreement, the Trustee is not authorized (i) to sell, assign, transfer,
exchange, pledge, set-off or otherwise dispose of any of the Term Assets, once
acquired, or interests therein, including to Certificateholders or (ii) to do
anything that would materially increase the likelihood that the Trust will fail
to qualify as a grantor trust for United States federal income tax purposes.
(c) The parties acknowledge that the Trustee, as the holder of
the Term Assets, has the right to vote and give consents and waivers in respect
of the Term Assets and enforce the other rights, if any, of a holder of the Term
Assets, except as otherwise limited by the Agreement or this Series Supplement.
In the event that the Trustee receives a request from the Term Assets Trustee,
the Term Assets Issuer or, if applicable, the Depositary with respect to the
Term Assets, for the Trustee's consent to any amendment, modification or waiver
of the Term Assets, the Indenture or any other document thereunder, or relating
thereto, or receives any other solicitation for any action with respect to the
Term Assets, the Trustee shall within two Business Days mail a notice of such
proposed amendment, modification, waiver or solicitation to each
Certificateholder of record as of the date of such request. The Trustee shall
request instructions from the Certificateholders as to what action to take in
response to such request and shall be protected in taking no action if no
direction is received. Except as otherwise provided herein, the Trustee shall
consent or vote, or refrain from consenting or voting, in the same proportion
(based on the Certificate Principal Balances of the Certificates) as the
Certificates of the Trust were actually voted or not voted by the Holders
thereof as of the date determined by the Trustee prior to the date such vote or
consent is required; provided, however, that, notwithstanding anything to the
contrary in the Agreement or this Series Supplement, the Trustee shall at no
time vote in favor of or consent to any matter (i) which would alter the timing
or amount of any payment on the Term Assets (including, without limitation, any
demand to accelerate the Term Assets) or (ii) which would result in the exchange
or substitution of any Term Asset pursuant to a plan for the refunding or
refinancing of such Term Asset, except in each case with the unanimous consent
of the Certificateholders and subject to the requirement that such vote would
not materially increase the likelihood that the Trust will fail to qualify as a
grantor trust for federal income tax purposes, such determination to be based
solely on an Opinion of Counsel. The Trustee shall have no liability for any
failure to act or to refrain from acting resulting from the Certificateholders'
late return of, or failure to return, directions requested by the Trustee from
the Certificateholders.
(d) Notwithstanding any provision of the Agreement to the
contrary, for purposes of any security or indemnity against the costs, expenses
and liabilities the Trustee may incur by reason of any action undertaken at the
direction of the Certificateholders, which the Trustee may require from the
Certificateholders prior to taking any such action, an unsecured indemnity
agreement of a Certificateholder or any of its Affiliates, if acceptable to the
Trustee, shall be deemed sufficient to satisfy such security or indemnity
requirement.
(e) Notwithstanding any provision of the Agreement to the
contrary, the Trustee shall act as the sole Authenticating Agent, Paying Agent,
and Registrar.
SECTION 14. Compensation of Trustee. The Trustee shall be
entitled to receive from the Depositor or an affiliate of the Depositor as
compensation for the Trustee's services hereunder, trustee's fees pursuant to a
separate agreement between the Trustee and the Depositor, and shall be
reimbursed for all reasonable expenses, disbursements and advances
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<PAGE>
incurred or made by the Trustee (including the reasonable compensation,
disbursements and expenses of its counsel and other persons not regularly in its
employ). The Depositor shall indemnify and hold harmless the Trustee and its
successors, assigns, agents and servants against any and all loss, liability or
reasonable expense (including attorney's fees) incurred by it in connection with
the administration of this trust and the performance of its duties thereunder.
The Trustee shall notify the Depositor promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Depositor shall not
relieve the Depositor of its obligations hereunder. The Depositor need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own willful misconduct, negligence
or bad faith. The indemnities contained in this Section 14 shall survive the
resignation or termination of the Trustee or the termination of this Agreement.
Failure by the Depositor to pay, reimburse or indemnify the
Trustee shall not entitle the Trustee to any payment, reimbursement or
indemnification from the Trust, nor shall such failure release the Trustee from
the duties it is required to perform under this Series Supplement. Any unpaid,
unreimbursed or unindemnified amounts shall not be borne by the Trust and shall
not constitute a claim against the Trust, but shall be borne by the Trustee in
its individual capacity, and the Trustee shall have no recourse against the
Trust with respect thereto.
SECTION 15. Modification or Amendment. In addition to and
notwithstanding anything to the contrary in the Agreement or this Series
Supplement, the Trustee shall not enter into any modification or amendment of
the Agreement or this Series Supplement unless such modification or amendment
would not, based on an Opinion of Counsel, materially increase the likelihood
that the Trust would fail to qualify as a grantor trust for federal income tax
purposes, nor shall the Trustee enter into any such modification or amendment
without satisfaction of the Rating Agency Condition or the unanimous written
consent of the Certificateholders.
SECTION 16. Accounting. (a) Pursuant to Section 3.16 of the
Agreement, Independent Public Accountants' Administration Report, the Trustee
shall cause the accountings with respect to Distribution Dates for the
Certificates to be reviewed by an Independent certified public accountant
selected by the Depositor within four months following the end of an Accounting
Period. "Accounting Period" shall mean each 12-month period ending on the 30th
day of June. The Depositor may change the timing of Accounting Periods upon
written notice to the Trustee; provided, however, that the length of an
Accounting Period may in no event exceed 12 months.
(b) Pursuant to Section 4.2 of the Agreement, Reports to
Certificateholders, the Trustee shall cause the statements to be prepared and
forwarded as provided therein.
(c) An Independent certified public accountant for the Trust,
in consideration for its duties as described herein and in Section 3.16 of the
Agreement, Independent Public Accountants' Administration Report, shall be
compensated by the Depositor for reasonable expenses and disbursements incurred
in connection therewith pursuant to a separate agreement with the Depositor. The
Depositor retains the right to replace any Independent certified public
accountant and the Independent certified public accountant retains the right to
resign from its duties, in which case the Depositor shall appoint a successor
thereto.
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SECTION 17. No Investment of Amounts Received on Term
Assets. All amounts received on or with respect to the Term Assets shall be
held uninvested by the Trustee.
SECTION 18. No Event of Default. There shall be no Events of
Default defined with respect to the Certificates.
SECTION 19. Notices. (a) All directions, demands and notices
hereunder and under the Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered or mailed by first
class mail, postage prepaid or by express delivery service or by certified mail,
return receipt requested or delivered in any other manner specified herein, (i)
in the case of the Depositor, to Structured Products Corp., Seven World Trade
Center, Room 33-130, 33rd Floor, New York, New York 10048, Attention: Secretary,
or such other address as may hereafter be furnished to the Trustee in writing by
the Depositor, and (ii) in the case of the Trustee, to First Trust of New York
National Association, 100 Wall Street, Suite 1600, New York, New York 10005,
Attention: Corporate Trust, facsimile number (212) 809-5459, or such other
address as may hereafter be furnished to the Depositor in writing by the Trustee
and (iii) in the case of the NYSE, to New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, facsimile number (212) 656-5893, or such other
address as may hereafter be furnished to the Depositor and the Trustee in
writing by the NYSE.
(b) For purposes of delivering notices to the Rating Agency
under Section 10.07, Notice to Rating Agency, of the Agreement or otherwise,
such notices shall be mailed or delivered as provided in Section 10.07, Notice
to Rating Agency, to: Standard & Poor's Ratings Services, 26 Broadway (15th
Floor), New York, New York 10004; and Moody's Investors Service, Inc.,
Structured Derivative Products, 99 Church Street, New York, New York 10007; or
such other address as the Rating Agency may designate in writing to the parties
hereto.
(c) Notwithstanding any provisions of the Agreement to the
contrary, the Trustee shall deliver all notices or reports required to be
delivered to or by the Trustee or the Depositor to the Certificateholders
without charge to such Certificateholders.
SECTION 20. Access to Certain Documentation. Access to
documentation regarding the Term Assets will be afforded without charge to any
Certificateholder so requesting pursuant to Section 3.17 of the Agreement,
Access to Certain Documentation. Additionally, the Trustee shall provide at the
request of any Certificateholder without charge to such Certificate-holder the
name and address of each Certificateholder of Certificates hereunder as recorded
in the Certificate Register for purposes of contacting the other
Certificateholders with respect to their rights hereunder or for the purposes of
effecting purchases or sales of the Certificates, subject to the transfer
restrictions set forth herein.
SECTION 21. Advances. There is no Administrative Agent
specified herein; hence no person (including the Trustee) shall be permitted or
obligated to make Advances as described in Section 4.03 of the Agreement,
Advances.
SECTION 22. [RESERVED.]
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SECTION 23. Ratification of Agreement. With respect to the
Series issued hereby, the Agreement, as supplemented by this Series Supplement,
is in all respects ratified and confirmed and the Agreement as so supplemented
by this Series Supplement shall be read, taken and construed as one and the same
instrument. To the extent there is any inconsistency between the terms of the
Agreement and this Series Supplement, the terms of this Series Supplement shall
govern.
SECTION 24. Counterparts. This Series Supplement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of such counterparts shall together constitute
but one and the same instrument.
SECTION 25. Governing Law. This Series Supplement and each
Certificate issued hereunder shall be construed in accordance with and governed
by the substantive laws of the State of New York applicable to agreements made
and to be entirely performed therein.
SECTION 26. Trustee Election. In the event the Internal
Revenue Service successfully recharacterizes the Trust as a partnership for
federal income tax purposes, the Trustee, on behalf of all of the past and
present partners of such partnership, will, to the extent possible, elect out of
subchapter K of the Code pursuant to Treasury Regulation 1.761-2. Such election
will, to the extent possible, be effective for the first taxable year of the
Trust and thereafter. Each Certificateholder is deemed to consent to such
election.
SECTION 27. Covenant of Depositor. The Depositor hereby
covenants that it will be adequately capitalized at all times.
SECTION 28. Depositor's Exchange Right. (a) Any affiliate of
the Depositor, but not the Depositor itself, will have the right, on any date to
tender to the Trustee ZTF Class Certificates comprising a specified percentage
of the aggregate Certificate Principal Balance of the ZTF Class Certificates,
together with Amortizing Class Certificates comprising the same percentage of
the aggregate Certificate Principal Balance of the Amortizing Class
Certificates, and to receive in exchange a principal amount of Term Assets
comprising the same percentage of the Term Assets deposited in the Trust.
(b) Any tender of a Certificate for exchange pursuant to this
Section 28 shall be irrevocable.
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IN WITNESS WHEREOF, the Depositor and the Trustee have caused
this Series Supplement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
STRUCTURED PRODUCTS CORP.,
as Depositor
By: /s/ Timothy P. Beaulac
-------------------------------
Authorized Signatory
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Marlene Fahey
-------------------------------
Authorized Signatory
[Series IBM 1997-4 Supplement Signature Page]
<PAGE>
Exhibit A
[Form of Amortizing Class Certificate]
NUMBER $____________
R-___ CUSIP NO. ____________
SEE REVERSE FOR CERTAIN DEFINITIONS
THE HOLDER OF THIS CERTIFICATE SHALL HAVE NO RIGHT TO
PRINCIPAL PAYMENTS IN RESPECT OF THE TERM ASSETS EXCEPT IN THE EVENT OF AN
OPTIONAL REDEMPTION OR MATURITY SHORTENING REDEMPTION (AS SUCH TERMS ARE DEFINED
IN THE TRUST AGREEMENT REFERRED TO HEREIN) ON OR PRIOR TO JUNE 1, 2017. THE
REGISTERED HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL LOOK
SOLELY TO THE TRUST PROPERTY (TO THE EXTENT OF ITS RIGHTS THEREIN) FOR
DISTRIBUTIONS HEREUNDER.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN
THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-1
<PAGE>
TIERS CORPORATE BOND-BACKED CERTIFICATES TRUST IBM 1997-4
TIERS(sm) CORPORATE BOND-BACKED CERTIFICATES,
SERIES IBM 1997-4
Amortizing Class
evidencing a fractional undivided beneficial ownership interest in the Trust, as
defined below, the property of which consists of $100,000,000 aggregate
principal amount of 7-1/8% Debentures due December 1, 2096 (the "Term Assets")
issued by International Business Machines Corporation (the "Term Assets Issuer")
and deposited in the Trust by the Depositor, as defined below. The Term Assets
will be purchased by the Trust from Structured Products Corp. (the "Depositor")
with the net proceeds of the sale of the Certificates to the Depositor by the
Trust.
THIS CERTIFIES THAT CEDE & Co. is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in TIERS Corporate
Bond-Backed Certificates Trust IBM 1997-4 formed by the Depositor. Under the
Trust Agreement, there will be distributed on the first day of each June and
December, or if such day if not a Business Day, then the immediately following
Business Day, commencing December 1, 1997 through and including the date the
Certificate Principal Balance hereof has been reduced to zero (each a "Scheduled
Distribution Date"), to the Holders of the Amortizing Class Certificates, to the
extent of Interest Collections constituting Available Funds (as defined below),
an amount equal to the Fixed Payment. Each Fixed Payment shall be allocated
first to interest accrued at a rate equal to the Amortizing Class Yield on the
then outstanding aggregate Certificate Principal Balance of the Amortizing Class
Certificates, with the balance of such Fixed Payment allocated to the repayment
of principal in accordance with the amortization schedule attached to the
Agreement (as defined below) as Schedule 2 (the "Amortization Schedule"). The
amounts allocated to interest and principal in the Amortization Schedule are
referred to hereinafter as "Scheduled Interest" and "Scheduled Principal"
respectively. "Available Funds" shall mean, as of any Distribution Date, the
aggregate amount received on or with respect to the Term Assets on or with
respect to such Distribution Date.
The Trust was created pursuant to a Base Trust Agreement dated
as of June 16, 1997 (the "Agreement"), between the Depositor and First Trust of
New York National Association, a New York banking corporation, not in its
individual capacity but solely as Trustee (the "Trustee"), as supplemented by
the Series IBM 1997-4 Supplement dated as of June 16, 1997 (the "Series
Supplement" and, together with the Agreement, the "Trust Agreement"), between
the Depositor and the Trustee. This Certificate does not purport to summarize
the Trust Agreement and reference is hereby made to the Trust Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee with respect hereto. A copy of the Trust Agreement may be obtained
from the Trustee by written request sent to the Corporate Trust Office.
Capitalized terms used but not defined herein have the meanings assigned to them
in the Trust Agreement.
A-2
<PAGE>
This Certificate is one of the duly authorized Certificates
designated as "TIERS(sm) Corporate Bond-Backed Certificates, Series IBM 1997-4,
Amortizing Class Certificates" (herein called the "Amortizing Class
Certificates"). The Trust is also issuing certificates designated as "TIERS(sm)
Corporate Bond-Backed Certificates, Series IBM 1997-4, ZTF Class Certificates"
(hereinafter called the "ZTF Class Certificates" and together with the
Amortizing Class Certificates, the "Certificates") pursuant to the Trust
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust consists of the Term
Assets and all payments on or collections in respect of the Term Assets accrued
on or after the Closing Date, all as more fully specified in the Trust
Agreement.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distribution) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith,
distributions will be made on each Distribution Date to the Person in whose name
this Certificate is registered on the applicable Record Date, in an amount equal
to such Certificateholder's fractional undivided interest in the amount required
to be distributed to the Holders of the Amortizing Class Certificates on such
Distribution Date. The Record Date applicable to any Distribution Date is the
day immediately preceding such Distribution Date.
Distributions made on this Certificate will be made as
provided in the Trust Agreement by the Trustee by wire transfer or credit to the
appropriate account of the Holder in immediately available funds, without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Trustee in the Borough of Manhattan, the City
of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
be valid for any purpose.
It is the intent of the Depositor and the Certificateholders
that, for purposes of federal income, state and local income and franchise taxes
and any other taxes imposed upon, measured by or based upon gross or net income,
the Trust shall be treated as a grantor trust or, failing that, as a partnership
that is not taxable as a corporation or a public traded partnership, and the
Trust Agreement shall be interpreted accordingly. Except as otherwise required
by appropriate taxing authorities, the Depositor and the other
Certificateholders by acceptance of a Certificate, agree to treat, the
Certificates for such tax purposes as interests in such grantor trust. It is
also the intent of the Depositor and the Certificateholders that, in the event
that the Internal Revenue Service successfully recharacterizes the Trust as a
partnership for federal
A-3
<PAGE>
income tax purposes, the Trust will elect out of subchapter K of the Code
beginning with the first taxable year of the Trust.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
<PAGE>
IN WITNESS WHEREOF, the Depositor has caused this Certificate
to be duly executed as of the date set forth below.
STRUCTURED PRODUCTS CORP.
By:
------------------------------
Authorized Signatory
Dated: June 16, 1997
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Amortizing Class Certificates described in
the Trust Agreement referred to herein.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee,
By:
------------------------------
Authorized Signatory
<PAGE>
(REVERSE OF TRUST CERTIFICATE)
The Certificates are limited in right of distribution to
certain payments and collections respecting the Trust Agreement, all as more
specifically set forth herein and in the Trust Agreement. The registered Holder
hereof, by its acceptance hereof, agrees that it will look solely to the Term
Assets (to the extent of its rights therein) for distributions hereunder.
Subject to the next paragraph and to certain exceptions
provided in the Trust Agreement, the Trust Agreement permits the amendment
thereof and the modification of the rights and obligations of the Depositor and
the Trustee and the rights of the Certificateholders under the Trust Agreement
at any time by the Depositor and the Trustee with the consent of the Holders of
Certificates evidencing greater than 66-2/3% of the aggregate Voting Rights of
each Outstanding Class of Certificates subject to certain provisions set forth
in the Trust Agreement. Any such consent by the Holder of this Certificate (or
any predecessor Certificate) shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in
minimum original principal amounts of $1,000 and integral multiples thereof. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of the same principal
amount, class, original issue date and maturity, in authorized denominations as
requested by the Holder surrendering the same.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, The City of New York, duly endorsed
by, or accompanied by an assignment in the form below and by such other
documents as required by the Trust Agreement signed by, the Holder hereof, and
thereupon one or more new Certificates of the same class in authorized
denominations evidencing the same principal amount will be issued to the
designated transferee or transferees. The Certificate Registrar appointed under
the Trust Agreement is First Trust of New York, National Association.
No service charge will be made for any registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
<PAGE>
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates will terminate
upon (i) the distribution in kind of the Term Assets to the ZTF Class
Certificateholders on June 1, 2017, (ii) the payment in full of the Certificates
after an Optional Redemption or Maturity Shortening Redemption, or (iii) the
distribution in kind of the Term Assets to the ZTF Class Certificateholders and
Amortizing Class Certificateholders after a Payment Default or an Acceleration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Trust Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
--------------------------------
Signature Guaranteed;
*
--------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
Exhibit B
[Form of ZTF Class Certificate]
NUMBER $____________
R-___ CUSIP NO. ____________
SEE REVERSE FOR CERTAIN DEFINITIONS
THE HOLDER OF THIS CERTIFICATE SHALL HAVE NO RIGHT TO PAYMENTS
IN RESPECT OF THE TERM ASSETS EXCEPT IN THE EVENT OF AN OPTIONAL REDEMPTION OR
MATURITY SHORTENING REDEMPTION (AS SUCH TERMS ARE DEFINED IN THE TRUST AGREEMENT
REFERRED TO HEREIN) ON OR PRIOR TO JUNE 1, 2017. THE REGISTERED HOLDER HEREOF,
BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL LOOK SOLELY TO THE TRUST PROPERTY
(TO THE EXTENT OF ITS RIGHTS THEREIN) FOR DISTRIBUTIONS HEREUNDER.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN
THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
<PAGE>
TIERS CORPORATE BOND-BACKED CERTIFICATES TRUST IBM 1997-4
TIERS(sm) CORPORATE BOND-BACKED CERTIFICATES,
SERIES IBM 1997-4
ZTF Class
evidencing a fractional undivided beneficial ownership interest in the Trust, as
defined below, the property of which consists of $100,000,000 aggregate
principal amount of 7-1/8% Debentures due December 1, 2096 (the "Term Assets")
issued by International Business Machines Corporation (the "Term Assets Issuer")
and deposited in the Trust by the Depositor, as defined below. The Term Assets
will be purchased by the Trust from Structured Products Corp. (the "Depositor")
with the net proceeds of the sale of the Certificates to the Depositor by the
Trust.
THIS CERTIFIES THAT CEDE & Co. is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in TIERS Corporate
Bond-Backed Certificates Trust 1997-IBM formed by the Depositor. Under the Trust
Agreement, this Certificate will be terminated and deemed involuntarily
surrendered by the holder hereof in exchange for a principal amount of the Term
Assets underlying this Certificate equal to the Certificate Principal Balance
hereof on June 1, 2017, unless (i) an Optional Redemption or (ii) a Maturity
Shortening Redemption (as such terms are defined in the Trust Agreement) has
occurred on or prior to such date.
The Trust was created pursuant to a Base Trust Agreement dated
as of June 16, 1997 (the "Agreement"), between the Depositor and First Trust of
New York National Association, a New York banking corporation, not in its
individual capacity but solely as Trustee (the "Trustee"), as supplemented by
the Series IBM 1997-4 Supplement dated as of June 16, 1997 (the "Series
Supplement" and, together with the Agreement, the "Trust Agreement"), between
the Depositor and the Trustee. This Certificate does not purport to summarize
the Trust Agreement and reference is hereby made to the Trust Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee with respect hereto. A copy of the Trust Agreement may be obtained
from the Trustee by written request sent to the Corporate Trust Office.
Capitalized terms used but not defined herein have the meanings assigned to them
in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as "TIERS(sm) Corporate Bond-Backed Certificates, Series IBM 1997-4,
ZTF Class Certificates" (herein called the "ZTF Class Certificates"). The Trust
is also issuing certificates designated as "TIERS(sm) Corporate Bond-Backed
Certificates, Series IBM 1997-4, Amortizing Class Certificates" (hereinafter
called the "Amortizing Class Certificates" and together with the ZTF Class
Certificates, the "Certificates") pursuant to the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The property of the Trust consists of the Term Assets and all payments
on or collections in respect of the Term Assets accrued on or after the Closing
Date, all as more fully specified in the Trust Agreement.
<PAGE>
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith,
distributions will be made on each Distribution Date to the Person in whose name
this Certificate is registered on the applicable Record Date, in an amount equal
to such Certificateholder's fractional undivided interest in the amount required
to be distributed to the Holders of the ZTF Class Certificates on such
Distribution Date. The Record Date applicable to any Distribution Date is the
day immediately preceding such Distribution Date. "Available Funds" shall mean,
as of any Distribution Date, the aggregate amount received on or with respect to
the Term Assets on or with respect to such Distribution Date.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
be valid for any purpose.
It is the intent of the Depositor and the Certificateholders
that, for purposes of federal income, state and local income and franchise taxes
and any other taxes imposed upon, measured by or based upon gross or net income,
the Trust shall be treated as a grantor trust or, failing that, as a partnership
that is not taxable as a corporation or a public traded partnership, and the
Trust Agreement shall be interpreted accordingly. Except as otherwise required
by appropriate taxing authorities, the Depositor and the other
Certificateholders by acceptance of a Certificate, agree to treat, the
Certificates for such tax purposes as interests in such grantor trust. It is
also the intent of the Depositor and the Certificateholders that, in the event
that the Internal Revenue Service successfully recharacterizes the Trust as a
partnership for federal income tax purposes, the Trust will elect out of
subchapter K of the Code beginning with the first taxable year of the Trust.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
<PAGE>
IN WITNESS WHEREOF, the Depositor has caused this Certificate
to be duly executed as of the date set forth below.
STRUCTURED PRODUCTS CORP.,
By: ________________________________
Authorized Signatory
Dated: June 16, 1997
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the ZTF Class Certificates described in the
Trust Agreement referred to herein.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee,
By: ________________________________
Authorized Signatory
<PAGE>
(REVERSE OF TRUST CERTIFICATE)
The Certificates are limited in right of distribution to
certain payments and collections respecting the Trust Agreement, all as more
specifically set forth herein and in the Trust Agreement. The registered Holder
hereof, by its acceptance hereof, agrees that it will look solely to the Term
Assets (to the extent of its rights therein) for distributions hereunder.
Subject to the next paragraph and to certain exceptions
provided in the Trust Agreement, the Trust Agreement permits the amendment
thereof and the modification of the rights and obligations of the Depositor and
the Trustee and the rights of the Certificateholders under the Trust Agreement
at any time by the Depositor and the Trustee with the consent of the Holders of
Certificates evidencing greater than 66-2/3% of the aggregate Voting Rights of
each Outstanding Class of Certificates subject to certain provisions set forth
in the Trust Agreement. Any such consent by the Holder of this Certificate (or
any predecessor Certificate) shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in
minimum original principal amounts of $1,000 and integral multiples thereof. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of the same principal
amount, class, original issue date and maturity, in authorized denominations as
requested by the Holder surrendering the same.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, The City of New York, duly endorsed,
by or accompanied by an assignment in the form below and by such other documents
as required by the Trust Agreement signed by, the Holder hereof, and thereupon
one or more new Certificates of the same class in authorized denominations
evidencing the same principal amount will be issued to the designated transferee
or transferees. The Certificate Registrar appointed under the Trust Agreement is
First Trust of New York, National Association.
No service charge will be made for any registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
<PAGE>
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall terminate
upon (i) the distribution in kind of the Term Assets to the ZTF Class
Certificateholders on June 1, 2017, (ii) the payment in full of the Certificates
after an Optional Redemption or Maturity Shortening Redemption, or (iii) the
distribution in-kind of the Term Assets to the ZTF Class Certificateholders and
Amortizing Class Certificateholders after a Payment Default or an Acceleration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Trust Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
--------------------------------
Signature Guaranteed;
*
--------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
Schedule 1
IDENTIFICATION OF TERM ASSETS
<TABLE>
<S> <C>
Terms of Term Assets
Term Assets Issuer: International Business Machines Corporation
Term Assets: 7 1/8% Debentures due December 1, 2096
Dated: December 3, 1996
Original Principal Maturity Date: December 1, 2096
Original Par Value Amount Issued: $850,000,000
CUSIP Number: 459200AP6
Stated Interest Rate: 7 1/8%
Interest Payment Dates: June 1 and December 1
Mode of Payment of Term Assets: By credit to the account of the holder at DTC
Par Value Amount of Term Assets
Deposited Under Trust $100,000,000
Agreement:
</TABLE>
The Term Assets will be held by the Trustee for the Owners of
Certificates as book-entry credits to an account of the Trustee at DTC.
Available Information
The Term Assets Issuer is subject to the information
requirements of the Securities Exchange Act of 1934 and in accordance therewith
files reports and other information with the Commission. Such reports, proxy and
information statements and other information filed by the Term Assets Issuer
with the Commission can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's regional offices at 500 West Madison Street,
14th Floor, Chicago, Illinois 60661 and 75 Park Place, New York, New York 10007.
Copies of such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission maintains a Web site at http://www.sec.gov containing
reports, proxy statements and other information regarding registrants that file
electronically with the Commission. In addition, certain material described
above and other information will also be available for inspection at the offices
of the New York Stock Exchange at 20 Broad Street, New York, New York and the
Midwest Stock Exchange, 120 South LaSalle Street, Chicago, Illinois.
<PAGE>
Schedule 2
Amortizing Class Certificates
Schedule of Amortizing Payments
<TABLE>
<CAPTION>
Total
Amortizing
Payment Date Interest Principal Payment Balance
------------- ---------- ----------- --------- --------
<S> <C> <C> <C> <C>
December 1, 1997 $2,721,484.50 $841,015.50 $3,562,500.00 $73,212,984.50
June 1, 1998 $2,690,577.18 $871,922.82 $3,562,500.00 $72,341,061.68
December 1, 1998 $2,658,534.02 $903,965.98 $3,562,500.00 $71,437,095.70
June 1, 1999 $2,625,313.27 $937,186.73 $3,562,500.00 $70,499,908.96
December 1, 1999 $2,590,871.65 $971,628.35 $3,562,500.00 $69,528,280.62
June 1, 2000 $2,555,164.31 $1,007,335.69 $3,562,500.00 $68,520,944.93
December 1, 2000 $2,518,144.73 $1,044,355.27 $3,562,500.00 $67,476,589.66
June 1, 2001 $2,479,764.67 $1,082,735.33 $3,562,500.00 $66,393,854.33
December 1, 2001 $2,439,974.15 $1,122,525.85 $3,562,500.00 $65,271,328.47
June 1, 2002 $2,398,721.32 $1,163,778.68 $3,562,500.00 $64,107,549.80
December 1, 2002 $2,355,952.45 $1,206,547.55 $3,562,500.00 $62,901,002.25
June 1, 2003 $2,311,611.83 $1,250,888.17 $3,562,500.00 $61,650,114.08
December 1, 2003 $2,265,641.69 $1,296,858.31 $3,562,500.00 $60,353,255.78
June 1, 2004 $2,217,982.15 $1,344,517.85 $3,562,500.00 $59,008,737.93
December 1, 2004 $2,168,571.12 $1,393,928.88 $3,562,500.00 $57,614,809.04
June 1, 2005 $2,117,344.23 $1,445,155.77 $3,562,500.00 $56,169,653.28
December 1, 2005 $2,064,234.76 $1,498,265.24 $3,562,500.00 $54,671,388.03
June 1, 2006 $2,009,173.51 $1,553,326.49 $3,562,500.00 $53,118,061.54
December 1, 2006 $1,952,088.76 $1,610,411.24 $3,562,500.00 $51,507,650.31
June 1, 2007 $1,892,906.15 $1,669,593.85 $3,562,500.00 $49,838,056.45
December 1, 2007 $1,831,548.57 $1,730,951.43 $3,562,500.00 $48,107,105.03
June 1, 2008 $1,767,936.11 $1,794,563.89 $3,562,500.00 $46,312,541.14
December 1, 2008 $1,701,985.89 $1,860,514.11 $3,562,500.00 $44,452,027.03
June 1, 2009 $1,633,611.99 $1,928,888.01 $3,562,500.00 $42,523,139.02
December 1, 2009 $1,562,725.36 $1,999,774.64 $3,562,500.00 $40,523,364.38
June 1, 2010 $1,489,233.64 $2,073,266.36 $3,562,500.00 $38,450,098.02
December 1, 2010 $1,413,041.10 $2,149,458.90 $3,562,500.00 $36,300,639.12
June 1, 2011 $1,334,048.49 $2,228,451.51 $3,562,500.00 $34,072,187.61
December 1, 2011 $1,252,152.89 $2,310,347.11 $3,562,500.00 $31,761,840.50
June 1, 2012 $1,167,247.64 $2,395,252.36 $3,562,500.00 $29,366,588.14
December 1, 2012 $1,079,222.11 $2,483,277.89 $3,562,500.00 $26,883,310.26
June 1, 2013 $987,961.65 $2,574,538.35 $3,562,500.00 $24,308,771.91
December 1, 2013 $893,347.37 $2,669,152.63 $3,562,500.00 $21,639,619.28
June 1, 2014 $795,256.01 $2,767,243.99 $3,562,500.00 $18,872,375.28
December 1, 2014 $693,559.79 $2,868,940.21 $3,562,500.00 $16,003,435.08
June 1, 2015 $588,126.24 $2,974,373.76 $3,562,500.00 $13,029,061.32
December 1, 2015 $478,818.00 $3,083,682.00 $3,562,500.00 $9,945,379.32
June 1, 2016 $365,492.69 $3,197,007.31 $3,562,500.00 $6,748,372.01
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
December 1, 2016 $248,002.67 $3,314,497.33 $3,562,500.00 $3,433,874.68
June 1, 2017 $126,194.89 $3,433,874.68 $3,560,069.57* $0.00
</TABLE>
- --------
* Discrepancy due to rounding.
<PAGE>
Exhibit 2.
[Orrick, Herrington & Sutcliffe LLP Letterhead]
June 16, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Structured Products Corp.
Seven World Trade Center
Room 33-130, 33rd Floor
New York, NY 10048
Re: Structured Products Corp. Registration Statement on
Form S-3 (Registration No. 33-55860) -- TIERS
Corporate Bond-Backed Certificates, Series IBM 1997-4
-----------------------------------------------------
Ladies and Gentlemen:
We have advised Structured Products Corp. (the "Registrant") in
connection with the above captioned registration statement on Form S-3 (as
amended by Post-Effective Amendment No. 4 filed by the Registrant with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act") on April 22, 1997, and declared effective on May
15, 1997, the "Registration Statement") with respect to certain federal income
tax aspects of the issuance by the Registrant of its notes and certificates,
issuable in series (together, the "Securities"). As described in the
Registration Statement, the Securities will be issued from time to time in
series, with each series being issued by a trust organized under the laws of New
York to be formed by the Registrant pursuant to a trust agreement between the
Company and a trustee (the "Trustee"). Capitalized terms not otherwise defined
herein are used as defined in the Registration Statement.
In that connection, we are familiar with the proceedings taken in
connection with the authorization, issuance and sale of the series of
Certificates denominated TIERS Corporate Bond- Backed Certificates, Series IBM
1997-4 (the "Certificates"), and we have examined copies of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for the purposes of this opinion, including the Registration
Statement, the trust agreement pursuant to which the Certificates are issued
(the "Trust Agreement"), and the prospectus dated June 13, 1997 (the "Base
Prospectus") and the prospectus supplement dated June 13, 1997 with respect to
the Certificates (the "Prospectus Supplement").
Based on the foregoing and assuming that the transactions contemplated
to occur under the Registration Statement and the Trust Agreement in fact occur
in accordance with the terms thereof, we hereby confirm that the description of
selected federal income tax consequences to holders of the Certificates that
appears under the heading "Federal Income Tax Consequences" in the Prospectus
Supplement conforms to our advice given to the Registrant. We hereby confirm the
opinion set forth in the Prospectus Supplement.
<PAGE>
Salomon Brothers Inc
Structured Products Corp.
June 16, 1997
Page 2
In rendering the foregoing opinions, we have assumed the following: (a)
the authenticity of original documents and genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; (c)
the truth, accuracy and completeness of the information, representations and
warranties made in conference or contained in the records, documents,
instruments and certificates we have reviewed; (d) the corporate power and
authority of the respective parties to the Trust Agreement to enter into and
perform all of their obligations thereunder; (e) the due authorization,
execution and delivery of the Trust Agreement on behalf of the respective
parties thereto and the legal, valid, and binding effect thereof and
enforceability against the respective parties thereto; (f) the parties'
compliance with all material provisions of the Trust Agreement; and (g) the
absence of any agreements or understandings among the parties other than those
contained in the Trust Agreement or referenced therein (or otherwise called to
our attention).
We express no opinions as to matters of law other than the federal
income tax law of the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever appearing in the
Registration Statement and the Base Prospectus and Prospectus Supplement
contained therein. In giving such consent, we do not consider that we are
"experts," within the meaning of the term as used in the Act or the rules and
regulations of the Commission issued thereunder, with respect to any part of the
Registration Statement, including this opinion as an exhibit or otherwise. We
disclaim any obligation to update this opinion letter for events occurring or
coming to our attention after the date hereof.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
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