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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): April 1, 1998
Structured Products Corp.
------------------------------------------------------
(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
--------------------------------------- ----------
(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code: (212) 783-6645
N/A
-------------------------------------------------------------
(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 April 1, 1998, and
Series JPM 1998-2 Supplement, dated as of April 1, 1998, between
Structured Products Corp. and U.S. Bank Trust National Association, as
Trustee.
2. Tax Opinion of Orrick, Herrington & Sutcliffe LLP
dated April 1, 1998.
2
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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: April 3, 1998 By: /s/ Timothy P. Beaulac
--------------------------------
Name: Timothy P. Beaulac
Title: Assistant Vice President
3
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EXHIBIT INDEX
Exhibit Description
1. Base Trust Agreement, dated as of April 1, 1998, and
Series JPM 1998-2 Supplement, dated as of April 1,
1998, between Structured Products Corp. and U.S. Bank
Trust National Association, as Trustee.
2. Tax Opinion of Orrick, Herrington & Sutcliffe LLP dated
April 1, 1998.
4
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==============================================================================
BASE TRUST AGREEMENT
between
STRUCTURED PRODUCTS CORP.
Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
formerly known as
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
Trustee
Dated as of April 1, 1998
==============================================================================
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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)
- -----------------
* 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)(A) .................... 5.17
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
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Section 3.21. Reports by Trustee......................................................................... 30
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions.............................................................................. 31
Section 4.2. Reports to Certificateholders.............................................................. 31
Section 4.3. Advances................................................................................... 32
Section 4.4. Compliance with Withholding Requirements................................................... 33
Section 4.5. Optional Exchange.......................................................................... 33
ARTICLE V
The Certificates
Section 5.1. The Certificates........................................................................... 35
Section 5.2. Execution, Authentication and Delivery..................................................... 39
Section 5.3. Temporary Certificates..................................................................... 39
Section 5.4. Registration; Registration of Transfer and Exchange........................................ 40
Section 5.5. Mutilated, Destroyed, Lost and Stolen Certificates......................................... 43
Section 5.6. Distribution of Interest; Interest Rights Preserved........................................ 43
Section 5.7. Persons Deemed Owners...................................................................... 44
Section 5.8. Cancellation............................................................................... 45
Section 5.9. Global Securities.......................................................................... 45
Section 5.10. Notices to Depositary...................................................................... 46
Section 5.11. Definitive Certificates.................................................................... 46
Section 5.12. Currency of Distributions in Respect of Certificates....................................... 47
Section 5.13. Conditions of Authentication and Delivery of New Series.................................... 48
Section 5.14. Appointment of Paying Agent................................................................ 49
Section 5.15. Authenticating Agent....................................................................... 49
Section 5.16. Events of Default.......................................................................... 51
Section 5.17. Control by Holders......................................................................... 51
Section 5.18. Waiver of Past Defaults.................................................................... 51
ARTICLE VI
The Depositor and the Administrative Agent
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
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Section 6.8. Preferential Collection of Claims Against Depositor........................................ 58
ARTICLE VII
Administrative Agent Termination Events
Section 7.1. Administrative Agent Termination Events.................................................... 58
Section 7.2. Trustee to Act; Appointment of Successor................................................... 60
Section 7.3. Notification to Certificateholders......................................................... 61
Section 7.4. Waiver of Administrative Agent Termination Events.......................................... 61
ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults...................................................... 62
Section 8.2. Certain Matters Affecting the Trustee...................................................... 64
Section 8.3. Trustee Not Liable for Recitals in Certificates or Term Assets............................. 66
Section 8.4. Trustee May Own Certificates............................................................... 66
Section 8.5. Trustee's Fees and Expenses; Indemnification............................................... 66
Section 8.6. Eligibility Requirements for Trustee....................................................... 67
Section 8.7. Resignation or Removal of the Trustee...................................................... 67
Section 8.8. Successor Trustee.......................................................................... 68
Section 8.9. Merger or Consolidation of Trustee......................................................... 68
Section 8.10. Appointment of Co-Trustee or Separate Trustee.............................................. 69
Section 8.11. Appointment of Office or Agency............................................................ 70
Section 8.12. Representations and Warranties of Trustee.................................................. 70
Section 8.13. Trustee to Act Only in Accordance With This Agreement or Pursuant
to Instructions of Certificateholders.................................................... 70
Section 8.14. Accounting and Reports to Certificateholders, Internal Revenue Service
and Others............................................................................... 71
Section 8.15. Signature on Returns....................................................................... 71
ARTICLE IX
Termination
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
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Section 10.5. Notices.................................................................................... 75
Section 10.6. Severability of Provisions................................................................. 75
Section 10.7. Notice to Rating Agency.................................................................... 75
Section 10.8. Grant of Security Interest................................................................. 76
Section 10.9. Nonpetition Covenant....................................................................... 77
Section 10.10. No Recourse................................................................................ 77
Section 10.11. Article and Section References............................................................. 77
Section 10.12. Conflict with Trust Indenture Act.......................................................... 77
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TRUST AGREEMENT dated as of April 1, 1998, between
STRUCTURED PRODUCTS CORP., a Delaware corporation, as
Depositor, and U.S. BANK TRUST NATIONAL ASSOCIATION,
(formerly known as 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.
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"Accreted Amount": With respect to each Series, if
applicable, as defined in the related Series Supplement.
"Administrative Agent": With respect to each Series, if
applicable, as defined in the related Series Supplement.
"Administrative Agent Termination Event": As defined in
Section 7.1.
"Administrative Fee": With respect to each Series, if
applicable, as defined in the related Series Supplement.
"Advance": As defined in Section 4.3.
"Affiliate": With respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the
purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Agreement": With respect to any Series of
Certificates, this Trust Agreement and all amendments hereof and, unless
the context otherwise requires, the related Series Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official
language of the country of publication customarily published at least
once a day, and customarily published for at least five days in each
calendar week, and of general circulation in such city or cities
specified pursuant to Section 5.1 with respect to the Certificates of any
Series. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the
applicable Series Supplement, for any Distribution Date in respect of a
given Series or Class, the sum of (i) all amounts actually received on or
with respect to the Term Assets (including Liquidation Proceeds and
investment income on amounts in the Accounts) with respect to such Series
during the related Collection Period, (ii) all amounts received pursuant
to any Credit Support Instruments with respect to such Series for such
Distribution Date and (iii) all other amounts, if any, specified by the
applicable Series Supplement.
"Basic Documents": With respect to any Series, if
applicable, as defined in the related Series Supplement.
"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.
2
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"Board Resolution": A copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been
duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification and delivery to the Trustee.
"Business Day": With respect to any Place of
Distribution specified pursuant to Section 5.1, any day that is not a
Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies in such Place of Distribution are
authorized or obligated by law, regulation or executive order to close or
any day which is not a business day with respect to the Term Assets,
except as otherwise specified pursuant to Section 5.1.
"Calculation Agent": With respect to each Series, as
defined in the related Series Supplement.
"Call Premium Percentage": With respect to any Series
(or Class within such Series), if applicable, as defined in the related
Series Supplement.
"Certificate Account": As defined in Section 3.9.
"Certificate Owners": As defined in Section 5.9.
"Certificate Principal Balance": With respect to an
Outstanding Certificate, as determined at any time, the maximum amount
that the Holder thereof is entitled to receive as distributions allocable
to principal payments on the Term Assets. The Certificate Principal
Balance, if any, of any Class within a given Series (other than those
Classes, if any, specified in the related Series Supplement), as of any
date of determination, shall be equal to the aggregate initial
Certificate Principal Balance thereof less the sum of (i) all amounts
allocable to prior distributions made to such Class in respect of
principal of the Term Assets and (ii) any reductions attributable to
Certificates surrendered in exchange for Term Assets, as and to the
extent provided in the applicable Series Supplement.
"Certificate Register" and "Certificate Registrar": As
respectively defined in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": Any Trust Certificates authorized by,
and authenticated and delivered under, this Agreement.
"Class": With respect to any Series, any one of the
classes of Certificates of such Series, each consisting of Certificates
having identical terms.
"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.
3
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"Commission": The Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or, if
at any time after the execution and delivery of this Agreement such
Commission is not existing and performing the duties now assigned to it,
then the body then performing such duties.
"Corporate Trust Office": The principal corporate trust
office of the Trustee located at the address set forth in the related
Series Supplement or such other addresses as the Trustee may designate
from time to time by notice to the Holders, the Administrative Agent, if
any, and the Depositor, or the principal corporate trust office of any
successor Trustee (or such other addresses as a successor Trustee may
designate from time to time by notice to the Holders, the Administrative
Agent, if any, and the Depositor).
"Credit Support": With respect to any Series (or any
Class within such Series), a letter of credit, surety bond, swap
agreement, put or call option or other asset intended to support or
ensure the timely or ultimate distributions of amounts due in respect of
all or certain of the Term Assets for such Series or Class, which in each
case is specified as such in the related Series Supplement.
"Credit Support Instrument": The instrument or document
pursuant to which the Credit Support for a given Series (or any Class
within such Series) is provided, as specified in the applicable Series
Supplement.
"Credit Support Provider": With respect to any Series
(or any Class within such Series), the Person, if any, that will provide
any Credit Support with respect to all or a portion of the Term Assets
for such Series or Class as specified in the applicable Series
Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date
specified as such in the related Series Supplement. For purposes of this
Agreement, any Term Asset acquired by the Depositor after the applicable
Cut-off Date but prior to the applicable Closing Date and included in the
related Trust as of such Closing Date shall be deemed to have been
Outstanding as of such Cut-off Date and references to the principal
balance of such Term Asset as of such Cut-off Date shall be deemed to be
to the principal balance of such Term Asset as of the date on which it
was acquired by the Depositor.
"Definitive Certificates": As defined in Section 5.9.
"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.
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"Depositor": Structured Products Corp., a Delaware
corporation, and, if a successor Person shall have become the Depositor
pursuant to any applicable provisions of this Agreement, "Depositor"
shall mean such successor Person.
"Depositor Order" or "Depositor Request": A written
order or request, respectively, signed in the name of the Depositor by
any of its Chief Executive Officer, Chief Financial Officer, Chief
Operating Officer, President, a Vice President, its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee.
"Depository Agreement": If applicable, the agreement
pursuant to which the Depositary will agree to act as Depositary with
respect to any Series (or Class within such Series) of Certificates in
accordance with Section 5.9.
"Discount Certificate": Any Certificate that is issued
with "original issue discount" within the meaning of Section 1273(a) of
the Code and any other Certificate designated by the Depositor as issued
with original issue discount for United States Federal income tax
purposes.
"Distribution Date": With respect to any Series (or
Class within such Series) of Certificates, each date specified as a
"Distribution Date" for such Series (or Class) in the related Series
Supplement.
"Dollar" or "$" or "USD": Such currency of the United
States as at the time of payment is legal tender for the payment of
public and private debts.
"Eligible Account": Either (i) an account or accounts
maintained with a Federal or State chartered depository institution or
trust company the long term unsecured debt obligations of which are rated
by the Rating Agency the higher of (x) at least the then current
long-term rating of the Term Assets or (y) in one of its two highest
long-term rating categories (unless otherwise specified in the Series
Supplement) at the time any amounts are held in deposit therein or (ii) a
trust account or accounts maintained as a segregated account or as
segregated accounts and held by a Federal or State chartered depository
institution or trust company in trust for the benefit of the
Certificateholders provided, however, that such depositary institution or
trust company has a long-term rating in one of the four highest
categories by the Rating Agency.
"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.
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"Final Scheduled Distribution Date": With respect to
each Series, as defined in the Series Supplement.
"Fixed Pass Through Rate": With respect to any Fixed
Rate Certificate, as defined in the related Series Supplement.
"Fixed Rate Certificate": A Certificate that provides
for a payment of interest at a Fixed Pass Through Rate.
"Floating Pass Through Rate": With respect to any
Floating Rate Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate": A Certificate that
provides for the payment of interest at a Floating Pass Through Rate
determined periodically by reference to a formula specified pursuant to
Section 5.1 and the related Series Supplement.
"Foreign Currency": A currency issued by the government
of any country other than the United States or a composite currency the
value of which is determined by reference to the values of the currencies
of any group of countries.
"Global Security": A Certificate evidencing all or part
of a Series (or Class within such Series) of Certificates, issued to the
Depositary for such Series or Class in accordance with Section 5.9 and
bearing the legend prescribed therein.
"Grant": To sell, convey, assign, transfer, create,
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
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Agent, if any, and of any Affiliate of any of the foregoing Persons, (2)
does not have any direct or indirect financial interest in the Depositor
or the Administrative Agent, if any, or in any Affiliate of either of the
foregoing Persons which is material with respect to such Person and (3)
is not connected with the Depositor or the Administrative Agent, if any,
as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate of an
Independent Person, as required by the TIA.
"Letter of Credit": With respect to any Series or Class
within such Series, the letter of credit, if any, providing for the
payment of all or a portion of amounts due in respect of such Series or
Class, issued to the Trustee for the benefit of the Holders of such
Series or Class, issued by the related Credit Support Provider, all as
specified in the related Series Supplement.
"Limited Guarantor": With respect to the Term Assets
relating to any Series (or Class within such Series), a Person specified
in the related Series Supplement as providing a guarantee or insurance
policy or other credit enhancement supporting the distributions in
respect of such Series (or Class) as and to the extent specified in such
Series Supplement.
"Limited Guaranty": With respect to any Series or Class
within such Series, any guarantee of or insurance policy or other
comparable form of credit enhancement with respect to amounts required to
be distributed in respect of such Series or Class or payments under all
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.
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"Outstanding": With respect to Certificates of a
specified Series (or Class within such Series), as of any date of
determination, all such Certificates theretofore authenticated and
delivered under this Agreement and the related Series Supplement except:
(i) Certificates theretofore cancelled by the
Certificate Registrar or delivered to the Certificate Registrar
for cancellation; and
(ii) Certificates in exchange for or in lieu of which
other Certificates have been authenticated and delivered
pursuant to this Agreement, unless proof satisfactory to the
Trustee is presented that any such Certificates are held by a
bona fide purchaser in whose hands such Certificates are valid
obligations of the Trust;
provided, however, that in determining whether the Holders of the
required percentage of the aggregate Voting Rights of the Certificates
have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Certificates beneficially owned by the Depositor, or
any Affiliate thereof, shall be disregarded and deemed not to be
Outstanding, and the Voting Rights to which its Holder would otherwise be
entitled shall not be taken into account in determining whether the
requisite percentage of aggregate Voting Rights necessary to effect any
such consent or take any such action has been obtained except that, in
determining whether the 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
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denominator of which is the aggregate initial Certificate Principal
Balance or Notional Amount, as applicable, of all the Certificates of
such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series,
unless otherwise specified in the related Series Supplement, any one or
more of the following obligations or securities, provided that the total
return specified by the terms of each such obligation or security is at
least equal to the purchase price thereof:
(i) direct obligations of, and obligations fully
guaranteed by, the United States, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, the
Federal Farm Credit System or any agency or instrumentality of
the United States the obligations of which are backed by the
full faith and credit of the United States of America; provided
that obligations of, or guaranteed by, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association
or the 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
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(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.
"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.
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"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
or as a single Class) applicable to such matter, all as specified in the
applicable Series Supplement.
"Required Percentage--Definitive Certificates": Unless
otherwise specified in the related Series Supplement, greater than 50% of
the aggregate Voting Rights of Certificates of such Series.
"Required Percentage--Direction of Trustee": Unless
otherwise specified in the related Series Supplement, greater than 50% of
the aggregate Voting Rights of Certificates of such Series.
"Required Percentage--Remedies": Unless otherwise
specified in the related Series Supplement, 66-2/3% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage--Removal of Trustee": Unless
otherwise specified in the related Series Supplement, greater than 50% of
the aggregate Voting Rights of Certificates of such Series.
"Required Percentage--Waiver": Unless otherwise
specified in the related Series Supplement, 66-2/3% of the aggregate
Voting Rights of Certificates of such Series.
"Required Premium": If applicable, unless otherwise
specified in the related Series Supplement, with respect to the
Certificates of any Series or any Class thereof, an amount equal to the
product, as determined on any Distribution Date with respect to such
Series or Class, of (i) the Required Principal for such Series or Class
and (ii) the Call Premium Percentage for such Series or Class.
"Required Principal": As determined for any
Distribution Date for a given Series (or Class within such Series),
unless otherwise specified in the related Series Supplement, the amounts
on deposit in the Certificate Account allocable to principal payments on
the Term Assets (including from Credit Support, if any, and Advances, if
any, but excluding amounts in respect of principal payments to the extent
that Advances with respect thereto were distributed as Required Principal
on a prior Distribution Date) and required to be distributed in respect
of Certificates of such Series (or Class) in accordance with the terms of
such Certificates and such related Series Supplement.
"Required Rating": With respect to any Series (or Class
within such Series), the rating category (or categories) specified in the
Series Supplement that, as a condition to the issuance of such Series or
Class, is (or are) the lowest category (or categories) in which the
Certificates of such Series or Class may be categorized by the Rating
Agency.
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"Requisite Reserve Amount": As of any date with respect
to any Series (or Class within such Series) of Certificates, the amount,
if any, required to be maintained in the Reserve Account, if any, for
such Series or Class as specified in or determined pursuant to the
related Series Supplement.
"Reserve Account": An Eligible Account, if any, created
and maintained pursuant to Section 3.11.
"Responsible Officer": With respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any
Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Retained Interest": If applicable, with respect to any
Term Asset, an ownership interest in and a right to a portion of the
payments thereon by the obligor thereof, as specified in the Term Assets
Schedule to the related Series Supplement, held by the Person so
specified in such Term Assets Schedule.
"Scheduled Final Distribution Date": With respect to
any Certificate, the date on which all the unpaid principal of (and
premium, if any, on) such Certificate is scheduled, without giving effect
to any prepayment, exchange or early termination, to become due and
payable as provided therein and in the applicable Series Supplement.
"Series": A separate series of Certificates issued
pursuant to this Agreement and a related Series Supplement, which series
may be divided into two or more Classes, as provided in such Series
Supplement.
"Series Supplement": An agreement supplemental to this
Agreement that authorizes the issuance of a particular Series (and each
Class within such Series) of Certificates.
"Specified Currency": As defined in the related Series
Supplement.
"State": Any one of the 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.
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"Surety Bond": If so specified in the Series
Supplement, with respect to any Series (or Class within such Series) of
Certificates, the surety bond providing for the distribution under
certain circumstances specified in such Series Supplement of amounts to
the Certificateholders of such Series (or Class), which surety bond will
be issued to the Trustee for the benefit of such Certificateholders by
the related Credit Support Provider, all as specified in such Series
Supplement.
"Term Asset Provider": With respect to any Term Asset
purchased pursuant to a Term Asset Purchase Agreement, each entity
specified as such in the applicable Series Supplement or its successor in
interest.
"Term Asset Purchase Agreement": With respect to
certain Series of Certificates, as designated in the applicable Series
Supplement, the purchase agreement providing for the purchase by the
Depositor of one or more Term Assets for such Series, substantially in
the form acceptable to the Depositor, provided, that if required by the
applicable Series Supplement, such agreement shall provide for the
repurchase of such Term Assets on the terms set forth in Section 2.3.
"Term Assets": With respect to any Series, the asset or
assets Granted as part of the Trust for such Series or acquired (or, in
the case of an agreement, entered into) by the Trustee for the benefit of
the Holders of such Series and, if and to the extent provided in the
applicable Series Supplement, for the benefit of any Credit Support
Provider, all as identified in the Term Assets Schedule to the related
Series Supplement. The Term Assets for any such Series or the related
Trust shall not constitute Term Assets for any other Series or any other
Trust.
"Term Assets Issuer": As defined in the related Series
Supplement.
"Term Assets Schedule": With respect to any Series, a
listing of the Term Assets for such Series as of the Closing Date,
including, with respect to each Term Asset, the obligor and the principal
balance thereof, which shall be attached to such Series Supplement as
Schedule A.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated
asset or pool of assets subject hereto, constituting the trust created
hereby and by the related Series Supplement and to be administered
hereunder and thereunder, consisting of those Term Assets and the Credit
Support, if applicable, and all sums distributed in respect thereof that
are specified as being part of the Trust for such Series in the related
Series Supplement, all for the benefit of the Certificateholders of such
Series as of any particular time.
"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.
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"Trust Termination Event": With respect to any Series,
as specified in the related Series Supplement.
"Uniform Commercial Code": The Uniform Commercial Code
as in effect in the relevant jurisdiction or, with respect to the State
of Louisiana, the equivalent body of statutory and common law.
"United States": The United States of America
(including the States), its territories, its possessions and other areas
subject to its jurisdiction.
"Voting Rights": With respect to any Series (or Class
within such Series) of Certificates, the portion of the aggregate voting
rights of the Certificates of such Series or Class which shall be
allocated to any Certificate as specified in the applicable Series
Supplement.
Section 1.2. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles as in effect in the United States from
time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and
other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words
in the plural include the singular.
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
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all other assets to be included in the respective trust for the benefit
of the Certificateholders of each such Series. Each such Grant will
include all interest, premium (if any) and principal received by or on
behalf of the Depositor of, on or with respect to any such Term Assets
due after the applicable Cut-off Date, and, unless otherwise specified in
the Series Supplement, will exclude (i) all interest, premium (if any)
and principal of, on or with respect to any such Term Assets due on or
before the applicable Cut-off Date and (ii) any Retained Interest in any
such Term Asset.
(b) In connection with each Grant referred to in the
preceding paragraph, the Depositor shall, not later than the applicable
Closing Date, (i) deposit the Term Assets for a given Series (except for
the Term Assets attributable to such Series which are to be acquired from
a Person other than the Depositor, as specified on the Term Assets
Schedule to the applicable Series Supplement) with the Trustee by
physical delivery of such Term Assets, duly endorsed, to the Trustee or
by causing such Term Assets to be registered by book entry in the name of
the Trustee and (ii) with respect to each such Term Asset, deliver or
cause to be delivered to the Trustee all documents necessary to transfer
ownership of each such Term Asset to the Trustee.
(c) Unless otherwise specified in the applicable Series
Supplement, the Grant of such Term Assets by the Depositor for a given
Series accomplished hereby and by such Series Supplement is absolute and
is intended by the parties hereto as a sale. The Depositor represents and
covenants that the Term Assets as of the respective Closing Dates will be
free and clear of any right, charge, security interest or lien or claim
in favor of the Depositor and, with respect to any Grant of Term Assets,
that the Depositor will as of such respective Closing Date have the right
to Grant the applicable Term Assets to the Trustee.
Section 2.2. Acceptance by Trustee. (a) With respect to
each Series, the Trustee will acknowledge receipt by it, or by a
custodian on its behalf, of the related Term Assets and the related
documents referred to in Section 2.1, now existing or hereafter acquired,
and declares 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
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Administrative Agent, if any, and the Rating Agency that such document is
defective or missing and, unless the Depositor provides to the Trustee an
Officer's Certificate stating such missing or defective document will not
have a materially adverse effect on the related Trust, the Administrative
Agent, if any, or the Trustee shall immediately so notify the Term Asset
Provider and require that the Term Asset Provider deliver such missing
document or cure such defect within 60 days from the date on which such
Term Asset Provider was first notified of such missing document or
defect, and if such Term Asset Provider does not deliver such missing
document or cure such defect in all material respects during such period,
the Administrative Agent, if any, or the Trustee shall use its best
efforts to enforce the Term Asset Provider's obligation, if any, under
the related Term Asset Purchase Agreement to repurchase such Term Asset
from the Trustee at the applicable Purchase Price within 90 days after
the date on which the Term Asset Provider was first notified of such
missing document or defect. The Purchase Price for the repurchased Term
Asset shall be delivered to the Administrative Agent, if any, or to the
Trustee directly for deposit in the Certificate Account and the Trustee,
upon receipt either of certification by the Administrative Agent, if any,
of such deposit or of such deposit directly, shall release to the Term
Asset Provider the related documents in its possession and shall execute
and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in the Term Asset
Provider any Term Asset released pursuant hereto, and the Trustee shall
have no further obligations with regard to such documents. The foregoing
notwithstanding, if and to the extent the Series Supplement provides, the
Term Asset Provider may, as an alternative to repurchasing any such Term
Asset as provided above, if and to the extent so provided in the Term
Asset Purchase Agreement, cause such Term Asset to be removed from the
Trust (in which case it shall become a Deleted Term Asset) by agreeing to
substitute one or more Qualified Substitute Term Assets in the manner and
subject to the 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,
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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 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
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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.
(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.
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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 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.
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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 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,
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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
Supplement. Each such Sub-Administrative Agent shall be reimbursed by the
Administrative Agent for expenditures made by such Sub-Administrative
Agent to the same extent the Administrative Agent would be reimbursed for
such expenditures pursuant to the terms of this Agreement.
Section 3.6. Assumption or Termination of
Sub-Administration Agreements by Trustee. Except as and to the extent
otherwise provided in a Series Supplement, in the event an Administrative
Agent specified in the applicable Series Supplement shall for any reason
no longer be acting in such capacity with respect to any Series, the
Trustee or its designee shall thereupon assume all the rights and
obligations of the Administrative Agent under each Sub-Administration
Agreement that the Administrative Agent may have entered into with
respect to any Term Asset or Assets related to such Series, provided that
the Trustee may elect to terminate any such Sub-Administration Agreement
in accordance with its terms. Except as otherwise provided in such a
Series Supplement, the Trustee, its designee or any successor
Administrative Agent shall be deemed to have assumed all the
Administrative Agent's interest therein and to have replaced the
Administrative Agent as a party to each Sub-Administration Agreement to
the same extent as if each Sub-Administration Agreement had been assigned
to the assuming party; provided, however, that the Administrative Agent
shall not thereby be relieved of any liability or obligations under any
Sub-Administration Agreement and provided further, that the
Administrative Agent shall in no event be obligated to make any Advances
if it is prohibited by law or regulation from doing so or from obligating
itself to do so. The Administrative Agent at its expense shall, upon
request of the Trustee, deliver to such assuming party all documents and
records relating to each Sub-Administration Agreement and the Term
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Assets then being administered by it and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Sub-Administration Agreements to
the assuming party.
Section 3.7. Collection of Certain Term Asset Payments.
With respect to any Series or Class of Certificates, the Trustee (or the
Administrative Agent if specified in the related Series Supplement) shall
make reasonable efforts to collect all payments required to be made
pursuant to the terms of the Term Assets or any related Credit Support
Instruments in a manner consistent with the terms of this Agreement, such
Term Assets and any related Credit Support Instruments.
Section 3.8. Collections by Sub-Administrative Agent.
Unless otherwise provided in the applicable Series Supplement, in the
event a Sub-Administrative Agent is administering one or more Term Assets
pursuant to a Sub-Administration Agreement, the Sub-Administrative Agent
shall be required to immediately direct the Trustee to deposit into an
Eligible Account established by such Sub-Administrative Agent (a
"Sub-Administration Account") any amounts collected with respect thereto,
and not later than the Business Day after receipt thereof, all such
amounts shall be deposited into the related Certificate Account.
Section 3.9. Certificate Account. (a) For each Series
of Certificates, the Trustee shall establish and maintain one or more
Eligible Accounts (collectively, the "Certificate Account"), held in
trust for the benefit of the Certificateholders of such Series. The
Trustee on behalf of such Certificateholders shall possess all right,
title and interest in all funds on deposit from time to time in each
Certificate Account and in all proceeds thereof. With respect to each
Series of Certificates, the Certificate Account shall be under the sole
dominion and control of the Trustee for the benefit of the related
Certificateholders. With respect to each Series of Certificates, the
Trustee shall deposit or the Administrative Agent, if any, specified in
the applicable Series Supplement shall direct the Trustee to deposit or
cause to be deposited in the Certificate Account no later than the
Business Day after receipt thereof all amounts collected with respect to
the Term Assets, any Credit Support and all Liquidation Proceeds related
to such Series including:
(i) all payments on account of principal of such Term
Assets;
(ii) all payments on account of interest on such Term
Assets;
(iii) all payments on account of premium (if any) on
such Term Assets;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section
4.3; and
(vi) any interest or investment income earned on funds
deposited in the related Accounts.
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.
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If, at any time, the Certificate Account for any Series
ceases to be an Eligible Account, the Trustee shall within 10 Business
Days (or such longer period, not to exceed 30 calendar days, as to which
the Rating Agency Condition is met) establish a new Certificate Account
meeting the conditions specified above and transfer any cash and any
investments on deposit in the Certificate Account to such new Certificate
Account, and from the date such new Certificate Account is established,
it shall be the Certificate Account for such Series.
(b) The Trustee shall give notice to the Administrative
Agent, if any, the Depositor and the Rating Agency of the location of
each Eligible Account constituting the Certificate Account and prior to
any change thereof.
(c) The Administrative Agent, if any, shall instruct
the Trustee as to, or otherwise the Trustee shall determine, the
appropriate application of Available Funds with respect to any
Distribution Date for which application is to be made on any such
Distribution Date in accordance with the terms of Section 4.1 and the
related Series Supplement.
Section 3.10. Investment of Funds in the Accounts. The
Depositor (or, if so specified in the applicable Series Supplement, the
Administrative Agent), on behalf of the Trust, may direct the Trustee to
direct any depository institution maintaining the Certificate Account or
the Reserve Account, if any, for the applicable Series and any other
segregated Eligible Account the contents of which are held for the
benefit of Certificateholders of such Series (each, an "Account") to
invest the funds therein in one or more Permitted Investments bearing
interest or sold at a discount, which shall be held to maturity unless
payable on demand and which funds shall not be reinvested upon the
maturity or demand for payment of such Permitted Investment. If the
Depositor (or the Administrative Agent, if applicable) does not provide
any investment directions to the Trustee, funds held in any Account will
be invested in the Permitted Investments specified in clause (ii) of the
definition thereof. Investments of such funds shall be invested in
Permitted Investments that will mature so that such funds will be
available for distribution on the Distribution Date on which such amounts
are to be applied as distributions to Certificateholders. In the event
amounts on deposit in an Account are at any time invested in a Permitted
Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day
such Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(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
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to the Term Assets for such Series not distributed to the
Certificateholders of such Series shall be deposited in the Reserve
Account. The Reserve Account, if any, will not be a part of or otherwise
includible in the Trust but will be held for the benefit of the Credit
Support Provider.
Amounts on deposit in the Reserve Account and amounts
available pursuant to any other Credit Support for such Series shall be
applied by the Trustee to make distributions of principal of and premium
(if any) and interest on the Certificates of such Series as required
pursuant to Section 4.1 and the applicable Series Supplement to the
extent that funds are not otherwise available for such purpose. If
specified in such Series Supplement, immediately after each Distribution
Date, amounts on deposit in the Reserve Account for such Series in excess
of a specified amount shall be paid to the Person so specified in such
Series Supplement.
Section 3.12. Realization Upon Defaulted Term Assets.
(a) If:
(i) default is made in the payment of any installment
of interest on any Term Asset when the same becomes due and
payable, and such default continues unremedied for the period
specified in the indenture or other authorizing document for
such Term Asset (or, if no such period is specified, five days)
after receipt by the Term Assets Issuer of notice thereof from
the Trustee or receipt by the Term Assets Issuer and the Trustee
of notice thereof from the Holders of Outstanding Certificates
representing at least 25% of the Voting Rights; or
(ii) default is made in the payment of the principal of
or any installment of the principal of any Term Asset when the
same becomes due and payable, and such default continues
unremedied for the period specified in the indenture or other
authorizing document for such Term Asset (or, if no such period
is specified, thirty (30) days) after receipt by the Term Assets
Issuer of notice thereof from the Trustee or receipt by the Term
Assets Issuer and the Trustee of notice thereof from the Holders
of Outstanding Certificates representing at least 25% of the
Voting Rights;
and the Term Assets Issuer shall, upon demand of the Trustee, fail to pay
forthwith to the Trustee, for the benefit of the Holders, the whole
amount then due and payable on such Term 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
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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.
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.
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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 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.
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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.
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
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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 funds in the
Certificate Account for such Series in the manner and priority set forth
in the Series Supplement for such Series. Notwithstanding any other
provisions in this Agreement, the right of the Holder of any Certificate
to receive any such distributions in the manner and priority set forth in
the Series Supplement for such Series and to institute suit for the
enforcement of any such payment on or after the date such payment is
payable, shall not be impaired without the consent of such Holder.
Section 4.2. Reports to Certificateholders. Unless
otherwise specified in the applicable Series Supplement, on the next
Business Day following each such Distribution Date the Trustee or the
Administrative Agent, if any, as specified in such Series Supplement,
shall forward or cause to be forwarded to the Depositor, each
Certificateholder of such Series and such other Persons as may be
specified in such Series Supplement, a statement setting forth:
(i) the amount of the distribution on such Distribution
Date to Certificateholders of each Class of such Series
allocable to principal of and premium, if any, and interest on
the Certificates of each such Class; and the amount of aggregate
unpaid interest accrued or accreted as of such Distribution
Date;
(ii) in the case of each Class of Floating Rate
Certificates of such Series, the respective Floating Pass
Through Rate applicable to each such Class on such Distribution
Date, as calculated in accordance with the method specified in
such Certificates and the related Series Supplement;
(iii) the amount of compensation received by any
Administrative Agent and such other customary information as the
Trustee or Administrative Agent, as applicable, deems necessary
or desirable, or that any such Certificateholder reasonably
requests, to enable such Certificateholders to prepare their tax
returns;
(iv) if the Series Supplement provides for Advances,
the aggregate amount of Advances, if any, included in such
distribution, and the aggregate amount of unreimbursed Advances,
if any, at the close of business on such Distribution Date;
(v) the aggregate stated principal amount and, if
applicable, notional amount of the Term Assets related to such
Series, the current rating assigned by the Rating Agency thereon
and the current interest rate or rates thereon at the close of
business on such Distribution Date;
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(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 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
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reductions in the amount of collections on the Term Assets due to
bankruptcy proceedings with respect to the Term Assets or the obligors
thereof.
(c) Notwithstanding any provision herein to the
contrary, unless otherwise provided in the Series Supplement for a given
Series, any Advances made in respect of any Term Assets related to such
Series (or Class within such Series) that are subsequently deemed by the
Administrative Agent to be nonrecoverable from related late collections,
Credit Support proceeds, if any, or Liquidation Proceeds may be
reimbursed to the Administrative Agent through the application of amounts
on deposit in the Certificate Account for such Series allocable to any of
such Term Assets prior to the distributions of interest, premium (if any)
and principal with respect to the Certificates of such Series or Class.
Section 4.4. Compliance with Withholding Requirements.
If any withholding tax is imposed on the payment (or allocations of
income) to any Certificateholder, such tax shall reduce the amount
otherwise distributable to such Holder. The Trustee is hereby authorized
and directed to retain from amounts otherwise distributable to any Holder
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Trustee from
contesting any such tax in appropriate proceedings and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings), or that the Trustee may otherwise determine it is obligated
to withhold under applicable law or regulation. The amount of any
withholding tax imposed with respect to any Holder shall be treated as
cash distributed to such Holder at the time it is withheld by the Trustee
and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a
distribution, the Trustee may in its sole discretion withhold such
amounts in accordance with this Section 4.4. If any Holder wishes to
apply for a refund of any such withholding tax, the Trustee shall
reasonably cooperate with such Holder in making such claim so long as
such Holder agrees to reimburse the Trustee for any out-of-pocket
expenses incurred. The Trustee shall use reasonable efforts to give
notice to each Holder of any such withholding requirement at least 10
days prior to the date of the payment from which amounts are required to
be withheld.
Section 4.5. Optional Exchange. (a) The terms and
conditions, if any, upon which Certificates of any Series (or Class
within such Series) may be exchanged for a pro rata portion of the Term
Assets of the related Trust will be specified in the related Series
Supplement; provided that any right of exchange shall be exercisable only
to the extent that the Depositor provides upon the Trustee's request an
Opinion of Counsel that (i) such exchange would not be inconsistent with
the Depositor's and the Trust's continued satisfaction of the applicable
requirements for exemption under Rule 3a-7 (or other applicable rule or
exemption) under the Investment Company Act of 1940, as amended, and all
applicable rules, regulations and interpretations thereunder and (ii)
such exchange would not cause the Trust to fail to qualify as a grantor
trust for federal income tax purposes. Such terms may relate to, but are
not limited to, the following:
(1) a requirement that the exchanging Holder tender to
the Trustee Certificates of each Class within such Series;
(2) a minimum Certificate Principal Balance or Notional
Amount, as applicable, with respect to Certificates being
tendered for exchange by a single Holder;
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(3) a requirement that the Certificate Principal
Balance or Notional Amount, as applicable, of each Certificate
tendered for exchange be an integral multiple of an amount
specified in such Series Supplement;
(4) specified dates during which a Holder may effect
such an exchange (each, an "Optional Exchange Date");
(5) limitations on the right of an exchanging Holder to
receive any benefit upon exchange from any Credit Support or
Term Assets which are not debt securities; and
(6) adjustments to the value of the proceeds of any
exchange based upon required prepayment of future expense
allocations and if provided for in the applicable Series
Supplement the establishment of a reserve for any anticipated
Extraordinary Trust Expenses.
(b) Unless otherwise provided in the applicable Series
Supplement, no Certificate may be exchanged pursuant to the preceding
paragraph unless the Trustee has received at least 30 days but not more
than 45 days prior to an Optional Exchange Date in accordance with
delivery instructions specified in the applicable Series Supplement (i)
such Certificate with the form entitled "Option to Elect Exchange" on the
reverse thereof duly completed, or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc., the Depositary (in
accordance with its normal procedures) or a commercial bank or trust
company in the United States setting forth the name of the Holder of such
Certificate, the Certificate Principal Balance or Notional Amount of such
Certificate to be exchanged and the Certificate number or a description
of the tenor and the terms of such Certificate, a statement that the
option to elect exchange is being exercised thereby and an assurance that
the Certificate to be exchanged with the form entitled "Option to Elect
Exchange" on the reverse of the Certificate duly completed will be
received by such Trustee not later than five Business Days after the date
of such telegram, telex, facsimile transmission or letter, and such
Certificate and form duly completed must be received by such Trustee by
such fifth Business Day. Any tender of a Certificate by the Holder
thereof for exchange shall be irrevocable. Unless otherwise provided in
the applicable Series Supplement, the exchange option may be exercised
pursuant to this Section by the Holder of a Certificate for less than the
Certificate Principal Balance or Notional Amount of such Certificate as
long as the Certificate Principal Balance or Notional Amount remaining
Outstanding after such exchange is an authorized denomination and all
other exchange requirements set forth in the related Series Supplement
are satisfied. Upon such partial exchange, such Certificate shall be
cancelled and a new Certificate or Certificates for the remaining
Certificate Principal Balance or Notional Amount thereof shall be issued
(which, in the case of any Certificate, shall be in the name of the
Holder of such exchanged Certificate).
(c) Upon the completion of any such Optional Exchange,
the Trustee shall give prompt written notice thereof to the Rating
Agency.
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
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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;
(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;
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(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;
(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;
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(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";
(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";
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(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 U.S. Bank Trust National
Association (formerly known as First Trust of New York, National
Association), or there is to be an Administrative Agent, then such Series
Supplement shall provide for the appointment of such Trustee or such
Administrative Agent or both, as applicable, of such Series and shall add
or change any of the provisions of this Agreement as shall be necessary
to provide for or facilitate the administration of the trusts hereunder
and of the Term Assets; it being understood that nothing contained herein
or in such Series Supplement shall constitute the Trustees for different
Series as co-trustees for the same Series or the administrative agents
for different Series as co-administrative agents for the same Series, and
that each Trustee shall be a trustee of a trust or trusts separate and
apart from any trust or trusts hereunder of any other Trustee, and that
each Administrative Agent shall be an administrative agent of a Trust
separate and apart from any other Trust. Upon final appointment of any
new Trustee or Administrative Agent, the Trustee shall provide a notice
of such appointment to the Rating Agency not later than 15 days following
such appointment.
Section 5.2. Execution, Authentication and Delivery.
(a) The Certificates shall be executed by the Depositor by its President,
its Treasurer, one of its Vice Presidents, or one
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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.
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
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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.
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
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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.
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
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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.
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.
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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.
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
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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
law and agreements between such Certificate Owners and
the Depositary or its Participants; and
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(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
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Certificates to be authenticated and delivered
and the method of calculation thereof.
(2) Series Supplement. A Series Supplement
consistent with the applicable provisions of
this Agreement, accompanied by a Board
Resolution (or action by a Person authorized
by Board Resolution) authorizing such Series
Supplement (and, in the case of the first
Series to be authenticated and delivered
hereunder, authorizing this Agreement).
(3) Certificates of the Depositor.
(a) An Officer's Certificate of the
Depositor, dated as of the Closing
Date, to the effect that the
Depositor is not in breach of this
Agreement and that the issuance of
the Certificates applied for will not
result in any breach of any of the
terms, conditions, or provisions of,
or constitute a default under, the
Depositor's Certificate of
Incorporation or bylaws, or any
indenture, mortgage, deed of transfer
or other agreement or instrument to
which the Depositor is a party or by
which it or its property is bound or
any order of any court or
administrative agency entered in any
Proceeding to which the Depositor is
a party or by which it or its
property may be bound or to which it
or its property may be subject.
(b) An Officer's Certificate of the
Depositor, dated as of the Closing
Date, to the effect that attached
thereto are true and correct copies
of letters signed by the Rating
Agency (or other evidence
satisfactory to the Trustee) and
confirming that the related
Certificates have received the
Required Rating.
(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
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failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Trustee and any
co-paying agent chosen by the Depositor and acceptable to the Trustee,
including, if and so long as any Series or Class within such Series is
listed on the Luxembourg Stock Exchange and such exchange so requires, a
co-paying agent in Luxembourg or another European city. Any Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' notice to the
Trustee. In the event that the Trustee shall no longer be the Paying
Agent, the Trustee shall appoint a successor or additional Paying Agent.
The Trustee shall cause each successor to act as Paying Agent to execute
and deliver to the Trustee an instrument in which such successor or
additional Paying Agent shall agree with the Trustee that (i) it will
hold all sums, if any, held by it for distribution to the
Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be distributed to such
Certificateholders and (ii) it will give the Trustee notice of any
default by any obligor on the applicable Series of Certificates or on the
Term Assets. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal shall also return all funds in its possession to
the Trustee. The provisions of Sections 8.1, 8.2, 8.3, 8.5 and 8.9 shall
apply to the Trustee also in its role as Paying Agent, for so long as the
Trustee shall act as Paying Agent. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise. Notwithstanding anything contained herein to the
contrary, the appointment of a Paying Agent pursuant to this Section 5.14
shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement other than
with respect to funds paid to such Paying Agent.
Section 5.15. Authenticating Agent. (a) The Trustee may
appoint one or more Authenticating Agents (each, an "Authenticating
Agent") with respect to the Certificates of any Series which shall be
authorized to act on behalf of the Trustee in authenticating such
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.
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(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
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certificates required by clause (i) above and this clause (ii),
equals 10% or more of the principal amount of the Outstanding
Certificates, but such certificate need not be furnished in the
case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate of the
Depositor is less than $25,000 or less than one percent of the
then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any
securities that are to be made the basis for the authentication
and delivery of Certificates, the withdrawal of cash
constituting a part of the trust estate or the release of any
property or securities subject to the lien of this Agreement,
the Depositor shall furnish to the Trustee an Officer's
Certificate of the Depositor certifying or stating the opinion
of each person signing such certificate as to the fair value
(within 90 days of such deposit) to the Depositor of the
securities to be so deposited.
(iv) whenever the Depositor is required to furnish to
the Trustee an Officer's Certificate of the Depositor described
in clause (iii) above, the Depositor shall also deliver to the
Trustee an Independent Certificate as to the same matters, if
the fair value to the Depositor of the securities to be so
deposited and of all other such securities made the basis of any
such withdrawal or release since the commencement of the then
current fiscal year of the Depositor, as set forth in the
certificates delivered pursuant to clause (iii) above and this
clause (iv), is 10% or more of the principal amount of the
Outstanding Certificates, but such a certificate need not be
furnished with respect to any securities so deposited, if the
fair value thereof to the Depositor as set forth in the related
Officer's Certificate of the Depositor is less than $25,000 or
less than one percent of the principal amount of the Outstanding
Certificates.
(v) subject to the payment of its fees and expenses
hereunder, the Trustee may, and when required by the provisions
of this Agreement, shall, execute instruments to release
property from the lien of this Agreement, or convey the
Trustee's interest in the same, in a manner and under
circumstances that are consistent with the provisions of this
Agreement. No party relying upon an instrument executed by the
Trustee in connection therewith shall be bound to ascertain the
Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys.
(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,
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no additional certificate or opinion need be furnished. Every certificate
or opinion with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or
investigations as is necessary to enable such signatory to
express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied
with.
Section 6.2. Merger or Consolidation of the Depositor
or the Administrative Agent. (a) Subject to the following paragraph, the
Depositor will keep in full effect its existence, rights and franchises
as a corporation under the laws of the jurisdiction of its incorporation,
and the Administrative Agent, if any, will keep in full effect its
existence, rights and franchises under the laws of the jurisdiction of
its incorporation or association. The Depositor and the Administrative
Agent, if any, each will obtain and preserve its qualification to do
business as a foreign corporation or association in each jurisdiction in
which such qualification is or shall be necessary to protect the validity
and enforceability of this Agreement, the Certificates or any of the Term
Assets and to perform its respective duties under this Agreement.
(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
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consolidation or merger and such supplemental agreement comply
with this Article VI and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
Section 6.3. Limitation on Liability of the Depositor
and the Administrative Agent. (a) Unless otherwise expressly specified in
this Agreement or a Series Supplement, neither the Administrative Agent,
if any, nor the Depositor shall be under any obligation to expend or risk
its own funds or otherwise incur financial liability in the performance
of its duties hereunder or under a Series Supplement or in the exercise
of any of its rights or powers if reasonable grounds exist for believing
that the repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(b) Neither the Depositor, an Administrative Agent, if
any, nor any of the directors, officers, employees or agents of the
Depositor or such Administrative Agent shall be under any liability to
any Trust or the Certificateholders of any Series for any action taken,
or for refraining from the taking of any action, in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, any such Administrative
Agent or any such person against any breach of warranties,
representations or covenants made herein, or against any specific
liability imposed on such Administrative Agent pursuant hereto, or
against any liability which would otherwise be imposed by reason of
wilful misfeasance, bad faith or negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder.
Neither the Depositor nor an Administrative Agent, if
any, shall be under any obligation to appear in, prosecute or defend any
legal action unless such action is related to its 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
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records maintained by the Administrative Agent in respect of its rights
and obligations hereunder and access to officers of the Administrative
Agent responsible for such obligations. Upon request, the Administrative
Agent shall furnish to the Depositor and the Trustee the Administrative
Agent's most recent financial statements and such other information
relating to its capacity to perform its obligations under this Agreement
as the Administrative Agent possesses. To the extent such information is
not otherwise available to the public, the Depositor and the Trustee
shall not disseminate any information obtained pursuant to the preceding
two sentences without the Administrative Agent's written consent, except
as required pursuant to this Agreement to the extent that it is
appropriate to do so (i) in working with legal counsel, auditors, taxing
authorities or other governmental agencies or (ii) pursuant to any law,
rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Depositor,
the Trustee or the Trust. The Depositor may, but is not obligated to,
enforce the obligations of the Administrative Agent under this Agreement
and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Administrative Agent under this
Agreement or exercise the rights of the Administrative Agent under this
Agreement; provided, however, that the Administrative Agent shall not be
relieved of any of its obligations under this Agreement by virtue of such
performance by the Depositor or its designee. The Depositor shall not
have any responsibility or liability for any action or failure to act by
the Administrative Agent and is not obligated to supervise the
performance of the Administrative Agent under this Agreement or
otherwise.
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
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continues unremedied for a period of five days after the date
upon which written notice of such failure, requiring the same to
be remedied, shall have been given to the Administrative Agent
by the Depositor or the Trustee (in which case notice shall be
provided by telecopy), or to the Administrative Agent, the
Depositor and the Trustee by the Holders of Certificates of such
Series representing at least 25% of the aggregate Voting Rights;
or
(ii) a failure on the part of any Administrative Agent
specified in the applicable Series Supplement to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Administrative Agent contained in
the Certificates of such Series or in this Agreement which
continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Administrative Agent by
the Depositor or the Trustee, or to the Administrative Agent,
the Depositor and the Trustee by the Holders of Certificates of
such Series representing at least 25% of the aggregate Voting
Rights; or
(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.
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(b) Unless otherwise provided in the applicable Series
Supplement and provided an Administrative Agent shall have been appointed
pursuant to the applicable Series Supplement, so long as an
Administrative Agent Termination Event with respect to the related Series
of Certificates shall have occurred and be continuing, the Depositor or
the Trustee may, and at the written direction of the Holders of
Certificates evidencing not less than the "Required
Percentage--Administrative Agent Termination" of the aggregate Voting
Rights, the Trustee shall, by notice in writing to such Administrative
Agent (and to the Depositor if given by the Trustee or to the Trustee if
given by the Depositor) terminate all the rights and obligations of the
Administrative Agent specified in the applicable Series Supplement in its
capacity as Administrative Agent with respect to such Series under this
Agreement, to the extent permitted by law, and in and to the Term Assets
relating to such Series (other than any Retained Interest 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
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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 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
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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.
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;
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(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the direction of Holders of
the Required Percentage--Direction of Trustee of the aggregate
Voting Rights of a given Series (or Class or group of Classes
within such Series) relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement;
(iv) the Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of
any of its rights or powers if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it,
and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for
the manner of performance of, any obligations of an
Administrative Agent, if any, appointed pursuant to the
applicable Series Supplement, under this Agreement except during
such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of,
such an Administrative Agent in accordance with and only to the
extent provided in this Agreement;
(v) except for actions expressly authorized by this
Agreement, the Trustee shall take no actions reasonably likely
to impair the interests of the Trust in any Term Asset now
existing or hereafter acquired or to impair the value of any
Term Asset now existing or hereafter acquired;
(vi) except as expressly provided in this Agreement,
the Trustee shall not engage in any activity other than those
required or authorized by the terms of this Agreement. In
particular, after the Closing Date the Trustee shall not
purchase or otherwise acquire any additional securities, modify
or permit the modification of any Trust Asset or otherwise vary
the investment of the Certificateholders or incur or modify any
obligations, (i) except as expressly required or permitted by
the terms of this Agreement or (ii) unless the Trustee obtains,
at the expense of the Certificateholders, an Opinion of Counsel
to the effect that such acquisition, incurrence or modification
will not cause the Trust (unless otherwise indicated in a
related Series Supplement) to fail to be classified as a grantor
trust for federal income tax purposes; and
(vii) in the event that the Paying Agent or the
Certificate Registrar shall fail to perform any obligation, duty
or agreement in the manner or on the day required to be
performed 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.
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(e) Neither the Trustee nor the Depositor shall have
any obligation on or with respect to the Term Assets, except as provided
in this Article VIII with respect to the Trustee; and their respective
obligations with respect to Certificates shall be solely as set forth in
this Agreement.
(f) If there is an event of default (as defined in the
indenture or other document pursuant to which the Term Assets were
issued) with respect to any Term Asset and such default is known to the
Trustee, the Trustee shall promptly give notice to the Depository or, if
the Certificates are Definitive Certificates, directly to Holders thereof
as provided in Section 10.5 hereof (and in the manner and to the extent
provided in TIA Section 313(c)) within 90 days after such event of
default occurs. Such notice shall set forth (i) the identity of the Term
Assets, (ii) the date and nature of such default, (iii) the face amount
of the obligation to which such default relates, (iv) the identifying
numbers of the Series and Class of Certificates, or any combination, as
the case may be, evidencing the obligations (or portions thereof)
described above in clause (iii), and (v) any other information which the
Trustee may deem appropriate. Except in the case of a default in payment
of principal or interest (including payments pursuant to a redemption of
any Certificate), the Trustee may withhold the notice to Holders if and
so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the
Holders.
(g) Holders of Certificates shall have no recourse
against the Depositor or the Trustee for payment defaults on the Term
Assets.
Section 8.2. Certain Matters Affecting the Trustee. (a)
Except as otherwise provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any
written advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in
accordance with such written advice or Opinion of Counsel;
(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;
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(iv) the Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Administrative Agent
Termination Event hereunder and after the curing of all
Administrative Agent Termination Events which may have occurred,
the Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, appraisal, approval, bond or other paper or
document believed by it to be genuine, unless requested in
writing to do so by Holders of the Required
Percentage--Direction of Trustee of the aggregate Voting Rights
of the affected Series (or Class or Classes within any such
Series), as specified by the applicable Series Supplement;
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys or a custodian and shall
not be liable for such persons' actions if it has selected such
persons with reasonable care; and
(vii) the Trustee shall not be personally liable for
any loss resulting from the investment of funds held in any
Certificate Account or Reserve Account at the direction of an
Administrative Agent or the Depositor pursuant to Section 3.10.
(b) All rights of action under this Agreement or under
any of the Certificates, enforceable by the Trustee, may be enforced by
it without the possession of any of the Certificates of any Series (or
Class within such Series), or the production thereof at the trial or
other Proceeding relating thereto, and any such suit, action or
proceeding instituted by the 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
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Depositor as compensation for the Trustee's services hereunder, trustee's
fees pursuant to a separate agreement between the Trustee and the
Depositor, and shall be reimbursed for all reasonable expenses,
disbursements and advances incurred or made by the Trustee (including the
reasonable compensation, disbursements and expenses of its counsel and
other persons not regularly in its employ). The Depositor shall indemnify
and hold harmless the Trustee and its successors, assigns, agents and
servants against any and all loss, liability or reasonable expense
(including attorney's fees) incurred by it in connection with the
administration of this trust and the performance of its duties
thereunder. The Trustee shall notify the Depositor promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the
Depositor shall not relieve the Depositor of its obligations hereunder.
The Depositor need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's
own willful misconduct, negligence or bad faith. The indemnities
contained in this Section 8.5(a) shall survive the resignation or
termination of the Trustee or the termination of this Agreement.
(b) Failure by the Depositor to pay, reimburse or
indemnify the Trustee shall not entitle the Trustee to any payment,
reimbursement or indemnification from the Trust, nor shall such failure
release the Trustee from the duties it is required to perform under this
Agreement. Any unpaid, unreimbursed or unindemnified amounts shall not be
borne by the Trust and shall not constitute a claim against the Trust,
but shall be borne by the Trustee in its individual capacity.
(c) All parties to this Agreement agree, and each
Holder of any Certificate by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in
any Proceeding for the enforcement of any right or remedy under this
Agreement, or in any Proceeding against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in
such Proceeding of an undertaking to pay the 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
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supervising or examining authority, then for the purposes of this Section
the combined capital and surplus of such corporation or association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of conditions so published. Such corporation or association
must be rated in one of the four highest rating categories by the Rating
Agency.
(b) The Trustee shall comply with Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1), any Series Supplement under which other securities are
outstanding evidencing ownership interest in obligations of the Term
Assets Issuer if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met.
Section 8.7. Resignation or Removal of the Trustee. (a)
The Trustee may, with respect to any Series of Certificates, at any time
resign and be discharged from any trust hereby created by giving written
notice thereof to the Depositor, the Administrative Agent, if any, the
Rating Agency and to all Certificateholders of such Series. Upon
receiving such notice of resignation, the Depositor shall promptly
appoint a successor trustee for such Series by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee
and to the successor trustee. A copy of such instrument shall be
delivered to such Certificateholders and the Administrative Agent, if
any, by the Depositor. If no such successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor
trustee for such Series.
(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
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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 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
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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.
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
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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.
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
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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, 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
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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 U.S. Bank Trust National
Association, (formerly known as First Trust of New York, National
Association), as Trustee for a Series of Certificates, and to add to or
change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the separate Trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 5.1 hereof; (vii) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Certificates of one or more Series or to add or change any of the
provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the trusts hereunder; or (viii) to
provide for the issuance of a new Series of Certificates pursuant to a
Series Supplement issued hereunder pursuant to Sections 5.1 and 5.13
hereof.
(b) Without limiting the generality of the foregoing,
with respect to any Series this Agreement may also be modified or amended
from time to time by the Depositor and the Trustee with the consent of
the Holders of Certificates representing the Required Percentage--
Amendment of the aggregate Voting Rights of those Certificates to which
such modification or amendment relates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment
shall (i) reduce in any manner the amount of, or alter the timing of,
payments received on Term Assets which are required to be distributed on
any Certificate without the unanimous consent of the Holders of such
Certificates, (ii) adversely affect in any material respect the interests
of the Holders of any Series (or Class within such Series) of
Certificates in a manner other than as described in (i), without the
consent of the Holders of Certificates of such Series or Class evidencing
not less than the Required Percentage--Amendment of the aggregate Voting
Rights of such Series or Class or (iii) reduce the percentage of
aggregate Voting Rights required by (ii), as described in (ii), without
the consent of the Holders of all Certificates of such Series or Class
then Outstanding; and provided further that the Depositor shall furnish
to the Trustee an Opinion of Counsel (unless otherwise indicated in a
related Series Supplement) stating that, in the opinion of such counsel,
any such amendment would not affect the characterization of the Trust as
a "grantor trust" for federal income tax purposes. Notwithstanding any
other provision of this Agreement, for purposes of the giving or
withholding of consents pursuant to this Section 10.1, Certificates
registered in the name of the Depositor, or any Affiliate thereof, shall
be entitled to Voting Rights with respect to matters affecting such
Certificates; and provided further that in the event the Rating Agency
Condition is not satisfied with respect to such modification or
amendment, the Required Percentage--Amendment shall be increased to
require an aggregate percentage of the aggregate Voting Rights in the
amount specified in the applicable Series Supplement. Notwithstanding any
other provision of this Agreement, this Section 10.1(b) shall not be
amended without the unanimous consent of the Holders of all such
Certificates.
(c) Promptly after the execution of any such amendment
or modification, the Trustee shall furnish a copy of such amendment or
modification to each Certificateholder of the affected Series or Class
and to the Rating Agency. It shall not be necessary for the consent of
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.
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Section 10.2. Counterparts. This Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts
shall constitute but one and the same instrument.
Section 10.3. Limitation on Rights of
Certificateholders. (a) The death or incapacity of any Certificateholder
shall not operate to terminate this Agreement or the Trust, nor entitle
such Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a
partition or winding up of the applicable Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of then.
(b) No Certificateholder of a given Series shall have
any right to vote (except as expressly provided for herein) or in any
manner otherwise control the operation and management of any Trust, or
the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Certificates, be construed so as
to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third person by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have
any right by virtue of any provision of this Agreement to institute any
suit, action or proceeding in equity or at law upon or under or with
respect to this Agreement, unless (i) such Holder previously shall have
given to the Trustee a written notice of breach and of the continuance
thereof and unless also the Holders of Certificates of such Series
evidencing not less than the Required Percentage-- Remedies of the
aggregate Voting Rights of such Series shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 15
days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and agreed that the Trustee shall not be
obligated to make any investigation of matters arising under this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any
Certificateholders unless such Certificateholders have offered to the
Trustee the reasonable indemnity referred to above. It is further
understood and agreed, and expressly covenanted by each Certificateholder
of each Series with every other Certificateholder of such Series and the
Trustee, that no one or more Holders of Certificates of such Series shall
have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates of such Series, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to
enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of
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.
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Section 10.5. Notices. All directions, demands and
notices hereunder shall be in writing and shall be delivered as set forth
in the applicable Series Supplement. Any notice required to be provided
to a Holder of a Certificate shall be given by first class mail, postage
prepaid, at the last address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given when
mailed, whether or not the Certificateholder receives such notice.
Section 10.6. Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
Section 10.7. Notice to Rating Agency. The Trustee
shall use its best efforts promptly to provide notice to the Rating
Agency with respect to each of the following of which it has actual
knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Administrative Agent
Termination Event;
(iii) the resignation or termination of an
Administrative Agent, if any, or the Trustee;
(iv) the repurchase or substitution of Term Assets, if
any, pursuant to Section 2.3;
(v) the final payment to Holders of the Certificates of
any Class;
(vi) any change in the location of the Certificate
Account; and
(vii) any event that would result in the inability of
the Trustee to make Advances.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of each report to Certificateholders described in Section 4.2 and
the Administrative Agent, if any, or otherwise the Trustee shall promptly
furnish to each Rating Agency copies of the following:
(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
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that, notwithstanding the aforementioned intent of the parties, any Term
Assets are held to be property of the Depositor, then, (a) it is the
express intent of the parties that such conveyance be deemed a pledge of
such Term Assets by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor and (b)(1) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9
of the Uniform Commercial Code as in effect from time to time in the
State of New York, or such other State as may be specified in the related
Series Supplement; (2) the conveyance provided for in Section 2.1 hereof
shall be deemed to be a grant by the Depositor to the Trustee of a
security interest in all the Depositor's right, title and interest in and
to such Term Assets and all amounts payable to the holders of such Term
Assets in accordance with the terms thereof and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, including all amounts from
time to time held or invested in the applicable Certificate Account,
whether in the form of cash, instruments, securities or other property;
(3) the obligations secured by such security agreement shall be deemed to
be all the Depositor's obligations under this Agreement, including the
obligation to provide to the Certificateholders the benefits of this
Agreement relating to such Term Assets and the applicable Trust; and (4)
notifications to persons holding such property, and acknowledgements,
receipts or confirmations from persons holding such property, shall be
deemed notifications to, or acknowledgements, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee a
security interest in the Term Assets and all other property described in
clause (2) of the preceding sentence, for the purpose of securing to the
Trustee the performance by the Depositor of the obligations described in
clause (3) of the preceding sentence. Notwithstanding the foregoing, the
parties hereto intend the Grant pursuant to Section 2.1 to be a true,
absolute and unconditional sale of the Term Assets and assets
constituting the applicable Trust by the Depositor to the Trustee. The
Depositor shall direct the Trustee to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Term Assets,
such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as
such for so long as any of the Term Assets remain outstanding. Without
limiting the generality of the foregoing, the Trustee, upon receipt of
such direction, shall file, or shall cause to be filed, all filings
identified by the Depositor to be 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
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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
U.S. BANK TRUST NATIONAL ASSOCIATION
(formerly known as FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION), as Trustee
By: /s/ Marlene Fahey
---------------------------------------
Authorized Signatory
<PAGE>
==============================================================================
SERIES JPM 1998-2 SUPPLEMENT
between
STRUCTURED PRODUCTS CORP.,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
formerly known as
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
as Trustee
TIERS Corporate Bond-Backed Certificates Trust JPM 1998-2
==============================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
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<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....................................................................................... 3
Section 3. Designation................................................................................... 4
Section 4. Date of the Certificates...................................................................... 4
Section 5. Principal Balance and Denominations........................................................... 4
Section 6. Currency of the Certificates.................................................................. 4
Section 7. Form of Securities............................................................................ 4
Section 8. Call Warrants................................................................................. 4
Section 9. Obligations to Warrantholders................................................................. 6
Section 10. Trustee Elections............................................................................. 6
Section 11. Certain Provisions of Base Trust Agreement Not Applicable..................................... 7
Section 12. Distributions................................................................................. 7
Section 13. Termination of Trust.......................................................................... 8
Section 14. Limitation of Powers and Duties............................................................... 8
Section 15. Compensation of Trustee....................................................................... 9
Section 16. Modification or Amendment..................................................................... 9
Section 17. Accounting.................................................................................... 10
Section 18. No Investment of Amounts Received on Term Assets.............................................. 10
Section 19. No Event of Default........................................................................... 10
Section 20. Notices....................................................................................... 10
Section 21. Access to Certain Documentation............................................................... 11
Section 22. Advances...................................................................................... 11
</TABLE>
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<TABLE>
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Section 23. Ratification of Agreement..................................................................... 11
Section 24. Counterparts.................................................................................. 11
Section 25. Governing Law................................................................................. 11
Section 26. Covenant of Depositor......................................................................... 11
Section 27. Reserved...................................................................................... 11
Section 28. Affiliate's Exchange Right.................................................................... 11
Section 29. Certificate of Compliance..................................................................... 12
</TABLE>
Exhibit A -- Identification of the Term Assets
Exhibit B -- Terms of the Certificates
Exhibit C -- Form of Certificates
Exhibit D -- Form of Call Warrant
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SERIES JPM 1998-2 SUPPLEMENT dated as of April 1, 1998
(this "Series Supplement") between STRUCTURED PRODUCTS
CORP., a Delaware corporation, as depositor (the
"Depositor"), and U.S. Bank Trust National Association
(formerly known as First Trust of New York, National
Association), a national banking association, as
trustee (the "Trustee").
PRELIMINARY STATEMENT
Pursuant to the Base Trust Agreement dated as of April
1, 1998 (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 JPM 1998-2, 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 JPM
1998-2, 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 one Class (the "Certificates"). The Trust is also granting
45,000 call options (the "Call Warrants" or "Warrant Instruments").
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 bankruptcy or reorganization of the Term Assets
Issuer.
"Affiliate's Exchange Right": As defined in Section 28
hereof.
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"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
Certificate, the Holder thereof.
"Certificateholders" or "Holders": The Holders of the
Certificates.
"Closing Date": April 1, 1998.
"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), through and including the
first Business Day preceding the current Distribution Date.
"Corporate Trust Office": U.S. Bank Trust National
Association (formerly known as 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.
"Distribution Date": The Maturity Date, any Term Assets
Default Distribution Date or any Warrant Exercise Date.
"Indenture": The indenture under which the Term Assets
were issued.
"Maturity Date": December 24, 2012.
"Payment Default": A default by the Term Assets Issuer
in the payment of any amount due (and the continuation thereof after the
expiration of any applicable grace period) on the Term Assets.
"Place of Distribution": New York, New York.
"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.
"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.
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"Specified Currency": United States Dollars.
"Term Assets": The $45,000,000 aggregate principal
amount of Subordinated Notes due December 24, 2012 issued by the Term
Assets Issuer, deposited in the Trust by the Depositor and identified on
Exhibit A hereto.
"Term Assets Default Distribution Date": The date on
which the Trustee makes a distribution of the proceeds of the sale of the
Term Assets (after deducting any costs incurred in connection therewith)
following a Payment Default or an Acceleration.
"Term Assets Issuer": J. P. Morgan & Co. Incorporated.
"Term Assets Payment Date": December 24, 2012;
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 October 15, 1997, as supplemented by a supplement
thereto, dated November 17, 1997, with respect to the Term Assets.
"Term Assets Trustee": The trustee under the Indenture.
"Trust": TIERS Corporate Bond-Backed Certificates Trust
JPM 1998-2.
"Trust Termination Event": (a) the payment in full at
maturity, (b) the distribution of the sale proceeds of the Term Assets
(after deducting costs incurred in connection therewith) to the
Certificateholders after a Payment Default or an Acceleration thereof,
(c) the distribution in kind of the Term Assets upon a tender by an
affiliate of the Depositor of 100% of the then outstanding Call Warrants
and Certificates in exchange for 100% of the Term Assets, or (d) the sale
by the Trust in accordance with the Call Warrants, of all the Term Assets
and the distribution in full of all amounts due to the
Certificateholders.
"Voting Rights": The Certificateholders shall have 100%
of the total Voting Rights with respect to the Certificates, which Voting
Rights shall be allocated among all Holders of Certificates in proportion
to the principal balances held by such Holders on any date of
determination.
"Warrant Agent Agreement": The Warrant Agent Agreement
dated as of the date hereof among the Depositor and the Trustee, as
Warrant Agent, as the same may be amended or modified from time to time.
"Warrant Exercise Date": Shall have the meaning given
to such term in the Call Warrant.
"Warrant Exercise Purchase Price": The purchase price
applicable to the relevant Warrant Exercise Date and identified on
Schedule 2 to the Call Warrant, and as of any date which is not a Warrant
Exercise Date the accreted value of the relevant Term Asset as of such
date as calculated by the Trustee.
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,
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of all of the Certificates, representing an undivided beneficial interest
in all of the assets of the Trust, and the Call Warrants.
(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, the Call Warrants 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 JPM 1998-2." The Certificates shall be
issued in one class, in the amount set forth in Exhibit B hereto. The
Certificates shall be issued in substantially the form set forth in
Exhibit C to this Series Supplement with such necessary or appropriate
changes as shall be approved by the Depositor and the Trustee, such
approval to be manifested by the execution and authentication thereof by
the Trustee. The TIERs shall evidence undivided ownership interests in
the assets of the Trust, subject to the liabilities of the Trust
including its obligations under the Call Warrants, and shall be payable
solely from payments or property received by the Trustee (i) on or in
respect of the Term Assets and (ii) pursuant to the Call Warrants.
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. Principal Balance and Denominations. The
maximum principal balance Certificates that may be authenticated and
delivered under the Agreement and this Series Supplement is $45,000,000.
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 Trustee shall
execute and deliver the Certificates in the form of one or more global
certificates registered in the name of DTC or its nominee.
Section 8. Call Warrants. (a) Concurrently with the
execution of this Series Trust Agreement, the Trustee shall execute the
Warrant Agent Agreement and one Call Warrant, dated as of the date hereof
and substantially in the form of Exhibit D hereto, initially evidencing
all of the Call Warrants. It shall be a condition to the effectiveness of
this Series Trust Agreement that the Warrant Agent Agreement and such
Call Warrant shall be effective as of the date hereof. The Trustee shall
perform the Trust's obligations under the Warrant Agent Agreement and the
Call Warrants in accordance with their respective terms.
(b) The Trustee may not enter into any amendment or
modification of the Call Warrant except as provided in Section 6.4 of the
Call Warrant.
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Section 9. Obligations to Warrantholders. (a) The
Trustee shall notify the Certificateholders and the Rating Agency upon
receipt of any notice, pursuant to the provision of the Call Warrants, of
a Warrantholder's intent to exercise its Call Warrants. Such notice from
the Trustee shall state the Warrant Exercise Purchase Price, the Warrant
Exercise Date, the place at which the Certificates are to be surrendered
for purchase, that interest on the principal amount of the Term Assets
represented by the Certificates subject to purchase will cease to be
payable to the Certificateholders from and after the Warrant Exercise
Date and, if less than the full principal amount of the Term Assets
represented by a Certificateholder's Certificate is to be purchased, the
principal amount of the Certificate to be purchased, that upon surrender
of such Certificate for purchase the Trustee shall deliver to, or upon
written order of, such Certificateholder a new Certificate, in authorized
denominations, evidencing the amount not purchased, and that such
exercise of the Call Warrant is conditional upon receipt by the Trustee
of the Warrant Exercise Purchase Price with respect to such exercise. A
holder of a Call Warrant may rescind its notice given pursuant to the
terms of the Call Warrant and any recission of such notice or failure to
pay the Warrant Exercise Purchase Price pursuant to such rescinded notice
shall not adversely affect the right of a holder of a Call Warrant to
deliver a notice thereafter. The Trustee shall promptly notify
Certificateholders of any recission of such a notice.
(b) If the Call Warrants for a portion (but not all) of
the Term Assets are exercised pursuant to delivery of a notice by the
holder of a Call Warrant to the Trustee, the particular Certificates
evidencing ownership of the Term Assets to be surrendered for purchase
shall be selected on the Business Day following the delivery of the
notice by the Trustee from the outstanding Certificates by lot or such
method as the Trustee shall deem fair and appropriate and which shall be
a usual and customary method employed by bank custodians of redeemable
securities.
(c) Upon the exercise of any Call Warrant in accordance
with the terms of the Call Warrants, the Trustee, after receipt of the
Warrant Exercise Purchase Price and the Call Warrants being exercised,
shall deliver or cause to be delivered upon the written direction of the
Warrant Agent, by 1:00 p.m. (New York City time) on the related Warrant
Exercise Date, the Term Assets as specified in the exercised Call Warrant
by instructing the Depositary to credit such Term Assets to the account
of the exercising Warrantholder or its nominee, provided that the Trustee
shall have received notice of the exercise of such Call Warrant from the
Warrant Agent in accordance with the terms of the Call Warrants and shall
have received from the Warrant Agent an amount, in immediately available
funds in a form acceptable to the Trustee, equal to the Warrant Exercise
Purchase Price for such Term Assets by 1:00 p.m. (New York City time) on
the related Warrant Exercise Date.
(d) Upon receipt of the Warrant Exercise Purchase Price
pursuant to this Section 9 and the Call Warrants being exercised, the
Trustee shall deposit the amount of the Warrant Exercise Purchase Price
in the Collection Account on or before the related Warrant Exercise Date.
The Certificates to be redeemed will be selected by the Trustee or DTC by
lot and will be paid for on the Warrant Exercise Date.
(e) If the Corporate Trust Department of the Trustee
has actual notice that a holder of a Certificate has become the subject
of a bankruptcy, receivership, conservatorship, insolvency, assignment
for the benefit of creditors, or other similar case or proceeding (an
"Insolvency Proceeding"), the Trustee shall select, by lot, Call Warrants
to be allocated to such Certificates and shall promptly notify such
holders of Call Warrants of such selection. Upon receipt of any such
notice set forth in the preceding sentence, a holder of a Call Warrant
may immediately cause the liquidation of a Call Warrant that is allocated
to the Certificate owned by a Certificateholder that is subject to an
Insolvency Proceeding in any manner permitted by law or by immediately
exercising the Call Warrant by delivering a notice to the Trustee
designating
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a Warrant Exercise Date for such exercise, which may be a date other than
a date listed on Schedule 2 to the Call Warrant. The Warrant Exercise
Purchase Price of any such Warrant Exercise Date will be the amount
computed thereon pursuant to the definition of Warrant Exercise Purchase
Price.
Section 10. Trustee Elections. (a) The Trustee hereby
identifies the Term Assets and the Call Warrant as part of an integrated
transaction within the meaning of Treasury Regulation ss. 1.1275-6(e).
For purposes of such regulation (i) the Term Assets were acquired, and
the Call Warrant was entered into, on the Closing Date and (ii) the Term
Assets and the Call Warrant (including the cash flows and accruals
resulting from treating the Term Assets and the Call Warrant as an
integrated transaction) are as described in this Series Trust Agreement.
Each Certificateholder is deemed to consent to such identification.
(b) 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 ss.
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.
(c) The Depositor shall neither make nor direct the
Trustee to make an election under Treasury Regulation ss. 301.7701-3 for
the Trust to be classified as an association for federal tax purposes.
Section 11. 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 April 1, 1998 and any other
provision of the Base Trust Agreement dated as of April 1, 1998 which
imposes obligations on, or creates rights in favor of, the Trustee or the
Certificateholders 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 12. Distributions. (a) On the Distribution Date
occurring on the Final Maturity Date, the Trustee shall distribute the
principal balance of the Certificates to the Holders of the Certificates,
to the extent the principal of the Term Assets is received by the Trustee
on such date; provided, however, if such payment with respect to the Term
Assets is made to the Trustee after the Term Assets Payment Date on which
such payment was due, the Trustee will distribute such amount received on
the Business Day following such receipt.
(b) In the event of a Payment Default or an
Acceleration, the Trustee shall liquidate, as soon as reasonably possible
after the occurrence thereof, the Term Assets (by selling the Term Assets
to the highest bidder obtained pursuant to the procedures set forth in
the next paragraph) and distribute the proceeds of such sale (after
deducting any costs incurred in connection therewith) to the Holders of
the Certificates.
Upon the occurrence of a Payment Default or an
Acceleration, the Trustee shall solicit bids for the sale of the Term
Assets with settlement thereof on or before the third (3rd) Business Day
after such sale from three leading dealers in the relevant market. Any of
the following dealers shall be deemed to qualify as leading dealers: (1)
Credit Suisse First Boston Corporation, (2) Goldman, Sachs & Co., (3)
Lehman Brothers Inc., (4) Merrill Lynch, Pierce, Fenner & Smith
Incorporated, (5) UBS Securities LLC and (6) [Salomon Smith
Barney][Salomon Brothers Inc]. The Trustee shall not be responsible for
the failure to obtain a bid so long as it has made reasonable efforts to
obtain bids. If a bid for the sale of the Term Assets has been accepted
by the Trustee but the sale has failed to settle on the proposed
settlement date, the
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Trustee shall request new bids from such leading dealers. Any such
liquidation of the Term Assets shall be free and clear of any rights of
the holders of the Call Warrants.
(c) Distributions to the Certificateholders on each
Distribution Date will be made to the Certificateholders of record on the
Record Date.
(d) All distributions to Certificateholders of any
Class shall be allocated pro rata among the Certificates of such Class
based on their respective principal balances as of the Record Date.
(e) 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 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 12(e) unless a new
instruction is delivered 15 days prior to a Distribution Date.
(f) 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 principal balances.
Section 13. 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, the Term Assets Issuer, any Holder or the
Depositor of a Payment Default or an Acceleration, the Trustee shall
establish the Term Assets Default Distribution Date, if applicable, and
shall provide notice to the Certificateholders of the expected occurrence
of a Trust Termination Event, the termination of the Trust and the Term
Assets Default Distribution Date.
(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 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 14. 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 and issuing the Call Warrants. 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 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, except upon the exercise of a Call
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<PAGE>
Warrant on a Warrant Exercise Date, 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 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, the Trustee may require from the Certificateholders prior
to taking any action at the direction of the Certificateholders, an
indemnity agreement of a Certificateholder or any of its Affiliates to
provide for security or indemnity against the costs, expenses and
liabilities the Trustee may incur by reason of any such action. An
unsecured indemnity agreement, if acceptable to the Trustee, shall be
deemed to be 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 15. 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 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,
8
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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 16. 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; provided, however, that no such amendment or
modification will be permitted which would alter the timing or amount of
any payment of the Warrant Exercise Purchase Price without the unanimous
consent of the Warrantholders.
Section 17. Accounting. (a) Pursuant to Section 3.16 of
the Agreement, Independent Public Accountants' Administration Report, the
Trustee shall cause the accountings with respect to the 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; provided that such review by an
independent certified public accountant shall only be required if a
distribution was made on the Term Assets during 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.
Section 18. 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 19. No Event of Default. There shall be no
Events of Default defined with respect to the Certificates.
Section 20. 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
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Trade Center, Suite 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.
(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 21. 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 Certificateholder 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 22. 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 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 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 26. Covenant of Depositor. The Depositor hereby
covenants that it will be adequately capitalized at all times.
Section 27. Reserved.
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Section 28. Affiliate's Exchange Right. Any affiliate
of the Depositor who certifies in writing it is one, but not the
Depositor itself, will have the right on any date to tender to the
Trustee Certificates of a specified principal amount together with Call
Warrants relating to an equal principal amount of Certificates, and to
receive in exchange Term Assets equal to such principal amount.
Section 29. Certificate of Compliance. The Depositor
shall deliver to the Trustee on or prior to June 30 of each year prior to
a Trust Termination Event the Officer's Certificate as to compliance as
required by Section 6.1 of the Base Trust Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Series Trust Agreement to be executed by their respective duly authorized
officers as of the date first above written.
STRUCTURED PRODUCTS CORP.
By: /s/ Timothy P. Beaulac
------------------------------------------------
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION
(formerly known as First Trust of New York, National
Association), AS TRUSTEE
By: /s/ Marlene Fahey
------------------------------------------------
Responsible Officer
12
<PAGE>
EXHIBIT A
IDENTIFICATION OF THE TERM ASSETS
Issuer: J. P. Morgan & Co. Incorporated
Term Assets: Subordinated Notes Due 2012
Maturity Date: December 24, 2012
Original Principal
Amount Issued: $45,000,000
CUSIP No.: 616880BN9
Stated Interest Rate: 0.000% per annum
Interest Payment Dates: None
Principal Amount of
Term Assets Deposited
Under Trust Agreement: US $45,000,000
The Term Assets will be held by the Trustee as book-entry credits to an
account of the Trustee or its agent at The Depository Trust Company, New
York, New York ("DTC").
A-1
<PAGE>
EXHIBIT B
TERMS OF THE CERTIFICATES
Aggregate Principal
Amount of TIERS Series
JPM 1998-2: $45,000,000
Authorized Denomination: $1,000 and integral multiples thereof
Rating Agency: Standard & Poor's Ratings Group and Moody's
Investors Service, Inc.
Closing Date: April 1, 1998
Distribution Dates: The Maturity Date, any Term Assets Default
Distribution Date or any Warrant Exercise Date.
Interest Rate: 0.00% per annum
Maturity Date: December 24, 2012
Record Date: With respect to any Distribution Date, the day
immediately preceding such Distribution Date.
Trustee's Fees: The Trustee's fees shall be payable by the
Depositor pursuant to a separate fee agreement
between the Trustee and the Depositor.
Initial Certificate
Registrar: U.S. Bank Trust National Association (formerly
known as First Trust of New York, National
Association)
Corporate Trust Office: U.S. Bank Trust National Association (formerly
known as First Trust of New York, National
Association)
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust Department, Regarding
TIERS Corporate Bond-Backed Certificates Trust
JPM 1998-2
B-1
<PAGE>
EXHIBIT C
FORM OF CERTIFICATES
THIS CERTIFICATE REPRESENTS AN 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 ("DTC") OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER R-1 $45,000,000
CUSIP: 871928BE6 Certificate Amount
TIERS CORPORATE BOND-BACKED CERTIFICATES TRUST SERIES JPM 1998-2
evidencing an undivided interest in the Trust, as defined below, the
assets of which include $45,000,000 J. P. Morgan & Co., Incorporated
Subordinated Notes due December 24, 2012 (the "Term Assets").
This Certificate does not represent an interest in or obligation of the
Depositor or any of its affiliates, except to the extent described below.
THIS CERTIFIES THAT Cede & Co. is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in TIERS
Corporate Bond-Backed Certificates Trust JPM 1998-2 (the "Trust") formed
by Structured Products Corp., as depositor (the "Depositor").
The Trust was created pursuant to a Base Trust Agreement, dated
as of April 1, 1998 (the "Agreement"), between the Depositor and U.S.
Bank Trust National Association (formerly known as First Trust of New
York, National Association), a national banking association, not in its
individual capacity but solely as Trustee (the "Trustee"), as
supplemented by the Series JPM 1998-2 Supplement dated as of April 1,
1998 (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.
C-1
<PAGE>
This Certificate is one of the duly authorized Certificates
designated as "TIERS(sm) Corporate Bond-Backed Certificates, Series JPM
1998-2, Certificates" (herein called the "Certificate"). 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 assets of the Trust include the Term Assets and all
proceeds of the Term Assets.
Under the Trust Agreement, there shall be distributed on the
date specified in the Series Trust Agreement (the "Distribution Date"),
to the person in whose name this Certificate is registered at the close
of business on the related Record Date, such Certificateholder's
fractional undivided interest in the amount of distributions of the Term
Assets to be distributed to Certificateholders on the Distribution Date.
The only scheduled payment to be made on the Term Assets is the principal
amount thereof, which is to be paid on December 24, 2012.
This Certificate is subject to prepayment upon any June 24 or
December 24 on or after December 24, 2000 through and including December
24, 2012 upon the exercise of the Call Warrants issued by the Trust. Upon
such an exercise, this Certificate will be paid the accreted value
thereof as of the exercise date as provided in the Trust Agreement.
In the event of a Payment Default or an Acceleration, the
Trustee shall liquidate, as soon as reasonably possible after the
occurrence thereof, the Term Assets (by selling the Term Assets to the
highest bidder obtained pursuant to the procedures set forth in the Trust
Agreement) and distribute the proceeds of such sale (after deducting any
costs incurred in connection therewith) to the Holders of the
Certificates.
The distributions in respect of this Certificate are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts as set
forth in the Series Trust Agreement.
It is the intent of the Depositor and the Certificateholders
that the Trust will be classified either as a grantor trust under subpart
E, Part I of subchapter J of the Internal Revenue Code of 1986, or as a
partnership. Except as otherwise required by appropriate taxing
authorities, the Depositor and the Trustee, by executing the Trust
Agreement, and each Certificateholder, by acceptance of a TIERS, agrees
to treat, and to take no action inconsistent with the treatment of, the
Certificates for such tax purposes as interests in either a grantor trust
or a partnership, and the provisions of the Trust Agreement shall be
interpreted to further this intention of the parties.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder shall not, prior to the
date which is one year and one day after the termination of the Trust
Agreement, acquiesce, petition or otherwise invoke or cause the Depositor
to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Depositor under
any federal or state bankruptcy, insolvency, reorganization or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Depositor or any
substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Depositor.
Distributions on this Certificate shall be made as provided in
the Trust Agreement by the Trustee by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate
shall 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 maintained for such purpose by the Trustee in the Borough
of Manhattan, the City of New York.
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The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Trustee or any affiliates of any of them
and no recourse may be had against such parties or their assets, except
as may be expressly set forth or contemplated herein. In addition, this
Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections
with respect to the Term Assets, all as more specifically set forth
herein and in the Trust Agreement. A copy of the Trust Agreement may be
examined during normal business hours at the principal office of the
Depositor, and at such other places, if any, designated by the Depositor,
by any Certificateholder upon written request.
The Trust Agreement permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable 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 New York City,
accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificate of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is the Trustee.
The Certificate are issuable only in registered form in the
authorized denominations specified in the Trust Agreement. As provided in
the Trust Agreement and subject to certain limitations therein set forth,
Certificate are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by
the Holder surrendering the same; provided, however, that no Certificates
may be subdivided such that the denomination of any resulting Certificate
is less than the minimum authorized denomination specified in the Trust
Agreement. No service charge shall be made for any such registration of
transfer or exchange, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental
charge payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the person in whose name
this Certificate is registered as the owner hereof for all purposes, and
none of the Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates will
terminate (subject to the surviving rights of indemnity) upon (a) the
payment in full at maturity, (b) the distribution of the sale proceeds of
the Term Assets (after deducting any costs incurred in connection
therewith) to the Certificateholders after a Payment Default or an
Acceleration thereof, (c) the distribution in kind of all of the Term
Assets upon the tender at any time by an affiliate of the Depositor of
100% of the then outstanding Call Warrants and Certificates in exchange
for 100% of the Term Assets, or (d) the sale by the Trust in accordance
with the Call Warrants, of all the Term Assets and the distribution in
full of all amounts due to the Certificateholders.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer 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.
A copy of the Trust Agreement is available upon request and all
of its terms and conditions are hereby incorporated by reference and made
a part hereof.
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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 PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed by its manual or facsimile signature.
U.S. BANK TRUST NATIONAL ASSOCIATION
(formerly known as FIRST TRUST OF NEW
YORK, NATIONAL ASSOCIATION), not in its
individual capacity but solely as Trustee and
Authenticating Agent
By:
--------------------------------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificate referred to in the
within-mentioned Trust Agreement.
U.S. BANK TRUST NATIONAL ASSOCIATION
(formerly known as FIRST TRUST OF NEW
YORK, NATIONAL ASSOCIATION),
not in its individual capacity but solely as
Trustee and Authenticating Agent
By:
--------------------------------------------
Authorized Signatory
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<PAGE>
EXHIBIT D
FORM OF CALL WARRANT
- ------------------------------------------------------------------------------
TIERS CORPORATE BOND-BACKED CERTIFICATES TRUST JPM 1998-2
Call Warrant
Dated as of April 1, 1998
- ------------------------------------------------------------------------------
THIS CALL WARRANT HAS NOT BEEN, AND THE WARRANTS REPRESENTED HEREBY HAVE
NOT BEEN, REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION
THEREFROM UNDER SUCH ACT. THIS CALL WARRANT AND ANY WARRANT REPRESENTED
HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS
SPECIFIED IN THIS CALL WARRANT.
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<PAGE>
TIERS CORPORATE BOND-BACKED CERTIFICATES TRUST JPM 1998-2
Call Warrant
____________ Warrants $_____ Each Warrant
No. W-___ April 1, 1998
TIERS Corporate Bond-Backed Certificates Trust JPM 1998-2 (the
"Trust"), a trust created under the laws of the State of New York
pursuant to a Base Trust Agreement, dated as of April 1, 1998 (the
"Agreement"), between Structured Products Corp. (the "Depositor") and
U.S. Bank Trust National Association (formerly known as First Trust or
New York, National Association), a national banking association, not in
its individual capacity but solely as Trustee (the "Trustee"), as
supplemented by the Series JPM 1998-2 Supplement dated as of April 1,
1998 (the "Series Supplement" and, together with the Agreement, the
"Trust Agreement"), between the Depositor and the Trustee, for value
received, hereby certifies that ________________________ or registered
assigns, is entitled to purchase $__________ principal amount of the
assets set forth on Schedule 1 hereto in whole or part on any Warrant
Exercise Date (as defined below) designated by the holder of this
instrument (this "Call Warrant") at a purchase price equal to the Warrant
Exercise Purchase Price (as defined below), all subject to the terms and
conditions set forth below.
Certain capitalized terms used in this Call Warrant are defined
in Article IV hereof; capitalized terms used but not defined herein shall
have the respective meanings set forth in the Trust Agreement; references
to an "Exhibit" are, unless otherwise specified, to one of the Exhibits
attached to this Call Warrant and references to a "Section" are, unless
otherwise specified, to one of the sections of this Call Warrant.
Article I
Exercise of Warrants
Section 1.1 Manner of Exercise. (a) This Call Warrant may be
exercised by the holder hereof, in whole or in part, on any Warrant
Exercise Date, subject to prior written notice to the Warrant Agent and
the Trustee delivered at any time on or before the Business Day that is
at least 15 Business Days before such Warrant Exercise Date, by surrender
of this Call Warrant to the Warrant Agent at its office set forth in
Section 6.3 hereof no later than 11:00 a.m. on such Warrant Exercise
Date; provided that such holder shall have made payment to the Warrant
Agent, by wire transfer or other immediately available funds acceptable
to the Warrant Agent, in the amount of the applicable Warrant Exercise
Purchase Price, in a manner such that funds are available to the Warrant
Agent no later than 11:00 a.m. on such Warrant Exercise Date, and such
holder shall thereupon (so long as the Warrant Agent shall have received
payment of the applicable Warrant Exercise Purchase Price from such
holder and shall have paid such amount to the Trustee pursuant to the
Trust Agreement) be entitled to delivery of the Term Assets purchased
hereunder in accordance with this Article I; further provided, that the
holder may not exercise this Call Warrant at any time when such holder is
insolvent, and in connection therewith, such holder shall be required to
certify that it is solvent at the time of exercise settlement, by
completing the Form of Subscription attached to this Call Warrant and
delivering such completed Form of Subscription to the Trustee on or prior
to the Warrant Exercise Date.
(b) The Warrant Agent shall notify the Trustee
immediately upon receipt by the Warrant Agent of a notice by the holder
of this Call Warrant and upon receipt of payment of the applicable
Warrant Exercise Purchase Price from such holder pursuant to clause (a)
of this Section 1.1. The Warrant Agent shall transfer each payment made
by the holder hereof pursuant to clause (a) of this Section 1.1 to the
Trustee in immediately available funds, for application pursuant to the
Trust Agreement
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<PAGE>
no later than 1:00 p.m. on the applicable Warrant Exercise Date (and,
pending such transfer, shall hold each such payment for the benefit of
the holder hereof in a segregated trust account).
(c) A notice by the holder of a Call Warrant does not
impose any obligations on a holder of a Call Warrant in any way to pay
any Warrant Exercise Purchase Price. If, by 11:00 a.m. New York City time
on the Warrant Exercise Date, the holder of the Call Warrant being
exercised has not paid the Exercise Purchase Price, then such notice
shall automatically expire and none of the holder of such Call Warrant,
the Warrant Agent and the Trustee shall have any obligations with respect
to such notice by the holder of such Call Warrant. The expiration of a
notice by the holder of this Call Warrant shall in no way affect a holder
of a Call Warrant's right to subsequently deliver a notice which
satisfies the terms of this Agreement.
Section 1.2 Transfer of Term Assets. As soon as practicable
after each surrender of this Call Warrant, in whole or in part, and no
later than 11:00 a.m. on the Warrant Exercise Date, provided that the
holder shall have, pursuant to Section 1.1, made payment of the
applicable Warrant Exercise Purchase Price to the Warrant Agent and
furnished the Warrant Agent all necessary information therefor, including
but not limited to the registered name of the transferee and the delivery
instructions for the transferee, the Warrant Agent shall instruct the
Trustee to cause the pro rata portion of the Term Assets purchased
hereunder to be registered on the book-entry system of the related
depositary in the registered name or names furnished by the holder, and,
in case such exercise is in part only, a new Call Warrant of like tenor,
representing the remaining outstanding Warrants of the holder, shall be
delivered by the Warrant Agent to the holder hereof. The Trustee shall
cause the delivery of such portion of the Term Assets to the holder or
its nominee no later than 1:00 p.m. on the applicable Warrant Exercise
Date in accordance with Section 9(c) of the Trust Agreement.
Section 1.3 Cancellation and Destruction of Call Warrant. All
Call Warrants surrendered to the Warrant Agent for the purpose of
exercise (in whole or in part) pursuant to Section 1.1 and actually
exercised, or for the purpose of transfer or exchange pursuant to Article
III, shall be cancelled by the Warrant Agent, and no Call Warrant shall
be issued in lieu thereof. The Warrant Agent shall destroy all cancelled
Call Warrants.
Section 1.4 No Rights as Holder of Term Assets Conferred by
Warrants. Prior to the exercise hereof, this Call Warrant shall not
entitle the holder hereof to any of the rights of a holder of the Term
Assets, including, without limitation, the right to receive the payment
of any amount on or in respect of the Term Assets or to enforce any of
the covenants of the Trust Agreement.
Article II
Restrictions on Transfer
Section 2.1 Restrictive Legends. Except as otherwise permitted
by this Article II, each Call Warrant (including each Call Warrant issued
upon the transfer of any Call Warrant) shall be issued with a legend in
substantially the following form:
"This Call Warrant has not been, and the Warrants
represented hereby have not been, registered under the
Securities Act of 1933, as amended, and may not be transferred,
sold or otherwise disposed of except while a registration under
such Act is in effect or pursuant to an exemption therefrom
under such Act. This Call Warrant and any Warrant represented
hereby may be transferred only in compliance with the conditions
specified in this Call Warrant.
Section 2.2 Notice of Proposed Transfer; Opinions of Counsel.
Prior to any transfer of any Call Warrant or portion thereof, the holder
hereof will give 5 Business Days' (or such lesser period
D-3
<PAGE>
acceptable to the Warrant Agent) prior written notice to the Warrant
Agent of such holder's intention to effect such transfer and to comply in
all other respects with this Section 2.2. Each transfer of a portion of a
Call Warrant must be for a whole number of Warrants. Each such notice (a)
shall describe the manner and circumstances of the proposed transfer in
sufficient detail to enable counsel for the holder to render the opinions
referred to below, and (b) shall designate counsel for the holder giving
such notice. The holder giving such notice will submit a copy thereof to
the counsel designated in such notice. If (A) in the opinion of such
counsel for the holder the proposed transfer may be effected without
registration of such Call Warrant under the Securities Act (such opinion
stating the basis for such determination) and (B) such opinion is in form
and substance satisfactory to the Depositor and the Warrant Agent, such
holder shall thereupon be entitled to transfer such Call Warrant in
accordance with the terms of the notice delivered by such holder to the
Warrant Agent. Each instrument representing such Call Warrant or portion
thereof issued upon or in connection with such transfer shall bear the
restrictive legend required by Section 2.1, unless the Warrant Agent
shall have received an opinion of counsel satisfactory to the Warrant
Agent and the Depositor that such legend is no longer required to ensure
compliance with the Securities Act.
Article III
Registration and Transfer of Call Warrants, etc.
Section 3.1 Warrant Register; Ownership of Call Warrants. The
Warrant Agent will keep a register in which the Warrant Agent will
provide for the registration of Call Warrants and the registration of
transfers of Call Warrants representing whole numbers of Warrants. The
Trustee and the Warrant Agent may treat the Person in whose name any Call
Warrant is registered on such register as the owner thereof for all
purposes, and the Trustee and the Warrant Agent shall not be affected by
any notice to the contrary.
Section 3.2 Transfer and Exchange of Call Warrants. Upon
surrender of any Call Warrant for registration of transfer or for
exchange to the Warrant Agent, the Warrant Agent shall (subject to
compliance with Article II) execute and deliver, and cause the Trustee,
on behalf of the Trust, to execute and deliver, in exchange therefor, a
new Call Warrant of like tenor and evidencing a like whole number of
Warrants, in the name of such holder or as such holder (upon payment by
such holder of any applicable transfer taxes or government charges) may
direct.
Section 3.3 Replacement of Call Warrants. Upon receipt of
evidence reasonably satisfactory to the Warrant Agent of the loss, theft,
destruction or mutilation of any Call Warrant and, in the case of any
such loss, theft or destruction of any Call Warrant, upon delivery of an
indemnity bond in such reasonable amount as the Warrant Agent may
determine, or, in the case of any such mutilation, upon the surrender of
such Call Warrant for cancellation to the Warrant Agent, the Warrant
Agent shall execute and deliver, and cause the Trustee, on behalf of the
Trust, to execute and deliver, in lieu thereof, a new Call Warrant of
like tenor bearing a number not contemporaneously outstanding.
Section 3.4 Execution and Delivery of Call Warrants by Trustee.
The Trustee, on behalf of the Trust, hereby agrees (subject to compliance
with Article II) to execute and deliver such new Call Warrants issued in
accordance with Section 1.2 or this Article III as the Warrant Agent
shall request in accordance herewith.
D-4
<PAGE>
Article IV
Definitions
As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
Business Day: As defined in the Trust Agreement.
Call Warrant: This instrument.
Closing Date: April 1, 1998.
Depositor: As defined in the introduction to this Call
Warrant, or any successor thereto under the Trust Agreement.
Depositor Order: As defined in the Trust Agreement.
Person: Any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
Rating Agencies: Standard & Poor's Ratings Group and Moody's
Investors Service, Inc. and any successor thereto.
Responsible Officer: As defined in the Trust Agreement.
Securities Act: The Securities Act of 1933, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
Trust: As defined in the introduction to this Call Warrant.
Trust Agreement: The Base Trust Agreement, dated as of
April 1, 1998, between the Depositor and the Trustee, as supplemented by
the Series JPM 1998-2 Supplement dated as of April 1, 1998 between the
Depositor and the Trustee, incorporating by reference the definitions and
assumptions thereto, as the same may be amended or modified from time to
time.
Trustee: As defined in the introduction to this Warrant, or
any successor thereto under the Trust Agreement.
Warrant: The right to purchase, on a pro rata basis, an
aggregate of $1,000 in par amount of the Term Assets.
Warrant Agent: U.S. Bank Trust National Association (formerly
known as First Trust of New York, National Association), a national banking
association, in its capacity as warrant agent hereunder, or any successor
thereto hereunder.
Warrant Exercise Date: Any June 24 or December 24 on or
after December 24, 2000 through and including December 24, 2012 or such
other date permitted pursuant to Section 9(e) of the Trust Agreement.
Warrant Exercise Purchase Price: The purchase price applicable
on the relevant Warrant Exercise Date and identified in Schedule 2 hereto.
D-5
<PAGE>
Article V
Warrant Agent
Section 5.1 Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action
taken, suffered or omitted by it in connection with its administration of
the Call Warrants in reliance upon any instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement or other paper or document in
good faith believed by it to be genuine and to be signed, executed and,
where necessary, verified and acknowledged, by the proper Person or
Persons.
Section 5.2 Duties of Warrant Agent. The Warrant Agent
undertakes only the specific duties and obligations imposed hereunder
upon the following terms and conditions, by all of which the Depositor,
the Trust, the Trustee and each holder of a Call Warrant shall be bound:
(a) The Warrant Agent may consult with legal counsel
(who may be legal counsel for the Depositor), and the opinion of such
counsel shall be full and complete authorization and protection to the
Warrant Agent as to any action taken or omitted by it in good faith and
in accordance with such opinion, provided the Warrant Agent shall have
exercised reasonable care in the selection by it of such counsel.
(b) Whenever in the performance of its duties
hereunder, the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Depositor or the
Trustee prior to taking or suffering any action hereunder, such fact or
matter may be deemed to be conclusively proved and established by a
Depositor Order or a certificate signed by a Responsible Officer of the
Trustee and delivered to the Warrant Agent; and such certificate shall be
full authorization to the Warrant Agent for any action taken or suffered
in good faith by it hereunder in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only
for its own negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained herein or
be required to verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Trust and the Depositor
only.
(e) The Warrant Agent shall not have any responsibility
in respect of and makes no representation as to the validity of this Call
Warrant or the execution and delivery hereof (except the due execution
hereof by the Warrant Agent); nor shall it be responsible for any breach
by the Trust of any covenant or condition contained in this Call Warrant;
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the Term Assets to be purchased hereunder.
(f) The Warrant Agent is hereby authorized and directed
to accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the Chief Executive Officer,
Chief Financial Officer, Chief Operating Officer, President, a Vice
President, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary of the Depositor, and any Responsible Officer of the
Trustee, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action
taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(g) The Warrant Agent and any shareholder, director,
officer or employee of the Warrant Agent may buy, sell or deal in any of
the Call Warrants or other securities of the Trust or otherwise act as
fully and freely as though it were not Warrant Agent hereunder, so long
as such persons
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<PAGE>
do so in full compliance with all applicable laws. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the
Trust, the Depositor or for any other legal entity.
(h) The Warrant Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of
the Trust hereunder. The Warrant Agent shall not be liable except for the
failure to perform such duties as are specifically set forth herein, and
no implied covenants or obligations shall be read into this Call Warrant
against the Warrant Agent, whose duties shall be determined solely by the
express provisions hereof. The Warrant Agent shall not be deemed to be a
fiduciary.
(j) The Warrant Agent shall not have any duty to
calculate or determine any adjustments with respect either to the Warrant
Exercise Purchase Price or to the kind and amount of property receivable
by holders of Call Warrants upon the exercise thereof.
(k) The Warrant Agent shall not be responsible for any
failure on the part of the Trust to comply with any of its covenants and
obligations contained herein.
(l) The Warrant Agent shall not be under any obligation
or duty to institute, appear in or defend any action, suit or legal
proceeding in respect hereof, unless first indemnified to its
satisfaction, but this provision shall not affect the power of the
Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without such indemnity. The Warrant Agent shall
promptly notify the Depositor and the Trustee in writing of any claim
made or action, suit or proceeding instituted against it arising out of
or in connection with this Call Warrant.
(m) The Trustee will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered
all such further acts, instruments and assurances as may be required by
the Warrant Agent in order to enable it to carry out or perform its
duties hereunder.
Section 5.3 Change of Warrant Agent. The Warrant Agent may
resign and be discharged from its duties hereunder upon 30 days' notice
in writing mailed to the Depositor and the Trustee by registered or
certified mail, and to the holders of the Call Warrants by first-class
mail at the expense of the Depositor, provided that no such resignation
or discharge shall become effective until a successor Warrant Agent shall
have been appointed hereunder. The Depositor may remove the Warrant Agent
or any successor Warrant Agent upon 30 days' notice in writing, mailed to
the Warrant Agent or successor Warrant Agent, as the case may be, and to
the holders of the Call Warrants by first-class mail, provided that no
such removal shall become effective until a successor Warrant Agent shall
have been appointed hereunder. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Depositor
shall promptly appoint a successor to the Warrant Agent, which may be
designated as an interim Warrant Agent. If an interim Warrant Agent is
designated, the Depositor shall then appoint a permanent successor to the
Warrant Agent, which may be the interim Warrant Agent. If the Depositor
shall fail to make such appointment of a permanent successor within a
period of 30 days after such removal or within 60 days after notification
in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the holder of a Call Warrant, then the
Warrant Agent or registered holder of any Warrant may apply to any court
of competent jurisdiction for the appointment of such a successor. Any
successor to the Warrant Agent appointed hereunder must be rated in one
of the four highest rating categories by the Rating Agencies. Any entity
which may be merged or consolidated with or which shall otherwise succeed
to substantially all of the trust or agency business of the Warrant Agent
shall be deemed to be the successor Warrant Agent without any further
action.
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<PAGE>
Article VI
Miscellaneous
Section 6.1 Remedies. The remedies at law of the holder of this
Call Warrant in the event of any default or threatened default by the
Warrant Agent in the performance of or compliance with any of the terms
of this Call Warrant are not and will not be adequate and, to the fullest
extent permitted by law, such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or
by an injunction against a violation of any of the terms hereof or
otherwise.
Section 6.2 Limitation on Liabilities of Holder. Nothing
contained in this Call Warrant shall be construed as imposing any
obligation on the holder hereof to purchase any of the Term Assets except
in accordance with the terms hereof.
Section 6.3 Notices. All notices and other communications under
this Call Warrant shall be in writing and shall be delivered, or mailed
by registered or certified mail, return receipt requested, by a
nationally recognized overnight courier, postage prepaid, addressed (a)
if to any holder of any Call Warrant, at the registered address of such
holder as set forth in the register kept by the Warrant Agent, or (b) if
to the Warrant Agent, to 100 Wall Street, Suite 1600, New York, New York
10005, Attention: Corporate Trust or to such other address notice of
which the Warrant Agent shall have given to the holder hereof and the
Trustee or (c) if to the Trust or the Trustee, to the Corporate Trust
Office (as set forth in the Trust Agreement), provided that the exercise
of any Call Warrant shall be effective in the manner provided in Article
I.
Section 6.4 Amendment. (a) This Call Warrant may be amended from
time to time by the Depositor, the Trustee and the Warrant Agent without
the consent of the holder hereof, upon receipt of an opinion of counsel
satisfactory to the Warrant Agent that the provisions hereof have been
satisfied and that such amendment would not alter the status of the Trust
as a grantor trust under the Code, for any of the following purposes: (i)
to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein or
to provide for any other terms or modify any other provisions with
respect to matters or questions arising under this Warrant which shall
not adversely affect in any material respect the interests of the holder
hereof or any holder of a Certificate or (ii) to evidence and provide for
the acceptance of appointment hereunder of a Warrant Agent other than
U.S. Bank Trust National Association (formerly known as First Trust or
New York, National Association).
(b) Without limiting the generality of the foregoing,
this Call Warrant may also be modified or amended from time to time by
the Depositor, the Trustee and the Warrant Agent with the consent of the
holders of 66-2/3% of the Warrants, upon receipt of an opinion of counsel
satisfactory to the Warrant Agent that the provisions hereof (including,
without limitation, the following proviso) have been satisfied, for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Call Warrant or of modifying in
any manner the rights of the holders of Call Warrant; provided, however,
that no such amendment shall (i) adversely affect in any material respect
the interests of holders of Certificates without the consent of the
holders of Certificates evidencing not less than the Required
Percentage-Amendment of the aggregate Voting Rights of such affected
Certificates (as such terms are defined in the Trust Agreement) and
without written confirmation from the Rating Agencies that such amendment
will not result in a downgrading or withdrawal of its rating of the
Certificates; (ii) alter the dates on which Warrants are exercisable or
the amounts payable upon exercise of a Warrant without the consent of the
holders of Certificates evidencing not less than 100% of the aggregate
Voting Rights of such affected Certificates and the holders of 100% of
the affected Warrants or (iii) reduce the percentage of aggregate Voting
Rights required by (i) or (ii) without the consent of the holders of all
such affected Certificates. Notwithstanding any other provision of this
Warrant, this Section 6.4(b) shall not be amended without the consent of
the holders of 100% of the affected Warrants.
D-8
<PAGE>
(c) Promptly after the execution of any such amendment
or modification, the Warrant Agent shall furnish a copy of such amendment
or modification to each holder of a Call Warrant, to each holder of a
Certificate and to the Rating Agencies. It shall not be necessary for the
consent of holders of Warrants or Certificates 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 shall be subject to such reasonable regulations as
the Warrant Agent may prescribe.
Section 6.5 Expiration. The right to exercise this Call Warrant
shall expire on the earliest to occur of (a) the cancellation hereof, (b)
the termination of the Trust Agreement, (c) the liquidation, disposition,
or maturity of all of the Term Assets, or (d) the occurrence of a Payment
Default or an Acceleration.
Section 6.6 Descriptive Headings. The headings in this Call
Warrant are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
Section 6.7 GOVERNING LAW. THIS WARRANT INSTRUMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial
proceeding brought against the Trust, the Trustee or the Warrant Agent
with respect to this Call Warrant may be brought in any court of
competent jurisdiction in the County of New York, State of New York or of
the United States of America for the Southern District of New York and,
by execution and delivery of this Call Warrant, the Trustee on behalf of
the Trust and the Warrant Agent (a) accept, generally and
unconditionally, the nonexclusive jurisdiction of such courts and any
related appellate court, and irrevocably agree that the Trust, the
Trustee and the Warrant Agent shall be bound by any judgment rendered
thereby in connection with this Call Warrant, subject to any rights of
appeal, and (b) irrevocably waive any objection that the Trust or the
Trustee, the Warrant Agent may now or hereafter have as to the venue of
any such suit, action or proceeding brought in such a court or that such
court is an inconvenient forum.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the
holder of this Call Warrant by its acceptance hereof, and (ii) the
Warrant Agent agrees, that it shall not (and, in the case of the holder,
that it shall not direct the Warrant Agent to), until the date which is
one year and one day after the payment in full of the Certificates and
all other securities issued by the Trust, the Depositor or entities
formed, established or settled by the Depositor, acquiesce, petition or
otherwise invoke or cause the Trust, the Depositor, any such other entity
or the Trustee 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, the Depositor or any such
other entity 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, the Depositor or any
such other entity or all or any part of the property or assets of Trust,
the Depositor or any such other entity or ordering the winding up or
liquidation of the affairs of the Trust, the Depositor or any such other
entity.
Each of (i) the holder of this Call Warrant by its acceptance
hereof, and (ii) the Warrant Agent agrees, that it shall not have any
recourse to the Term Assets.
D-9
<PAGE>
TIERS CORPORATE BOND-BACKED CERTIFICATES TRUST JPM 1998-2
By: U.S. BANK TRUST NATIONAL
ASSOCIATION (formerly known as
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION) not in its individual
capacity but solely as Trustee and
Authenticating Agent
By:
-------------------------------------------
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION
(formerly known as FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION),
as Warrant Agent
By:
-------------------------------------------
Authorized Signatory
D-10
<PAGE>
FORM OF SUBSCRIPTION
[To be executed only upon exercise of Warrants]
To TIERS Corporate Bond-Backed Certificates Trust JPM 1998-2
U.S. Bank Trust National Association (formerly known as
First Trust of New York, National Association), as Trustee
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust
The undersigned registered holder of the within Call Warrant, having
previously given notice thereof in accordance with the terms of the Call
Warrant, hereby irrevocably exercises ______________ Warrant(s) for, and
purchases pursuant thereto, the Term Assets receivable upon such
exercise, and herewith makes payment of $1,000 per Warrant therefor, and
requests that such Term Assets be transferred to _______________________
[insert information required for transfer of Term Assets]. In connection
therewith, the undersigned hereby certifies that it is solvent as of the
date hereof, as required by Section 1.1 of the Call Warrant.
Dated:
-----------------------------------------------------------
(Signature must conform in all respects to name of holder as
specified on the face of Warrant)
-----------------------------------------------------------
(Street Address)
-----------------------------------------------------------
(City)(State)(Zip Code)
D-11
<PAGE>
FORM OF ASSIGNMENT
[To be executed only upon transfer of Call Warrant]
For value received, the undersigned registered holder of the within Call
Warrant hereby sells, assigns and transfers unto ________________________
the __________ Warrant(s) [Must be whole number] to purchase Term Assets
to which such Call Warrant relates, and appoints _______________________
Attorney to make such transfer on the books of the Warrant Agent
maintained for such purpose, with full power of substitution in the
premises.
Dated:
-----------------------------------------------------------
(Signature must conform in all respects to name of holder as
specified on the face of Warrant)
-----------------------------------------------------------
(Street Address)
-----------------------------------------------------------
(City)(State)(Zip Code)
Signed in the presence of:
- --------------------------------------
D-12
<PAGE>
Schedule 1
To the Call Warrant
$45,000,000 aggregate principal amount of Subordinated Notes due December 24,
2012 issued by J.P. Morgan & Co. Incorporated.
D-13
<PAGE>
Schedule 2
To the Call Warrant
Accreted Value Schedule
12/24/00 45.084
06/24/01 46.606
12/24/01 48.179
06/24/02 49.805
12/24/02 51.486
06/24/03 53.223
12/24/03 55.020
06/24/04 56.876
12/24/04 58.796
06/24/05 60.780
12/24/05 62.832
06/24/06 64.952
12/24/06 67.145
06/24/07 69.411
12/24/07 71.753
06/24/08 74.175
12/24/08 76.678
06/24/09 79.266
12/24/09 81.942
06/24/10 84.707
12/24/10 87.566
06/24/11 90.521
12/24/11 93.576
06/24/12 96.735
12/24/12 100.000
D-14
Exhibit 2
April 1, 1998
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Structured Products Corp.
Seven World Trade Center
Suite 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 JPM 1998-2 and Related
Call Warrants
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
JPM 1998-2 (the "Certificates") and the related call warrants (the "Call
Warrants"), 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 and the Call
Warrants are issued (the "Trust Agreement"), and the prospectus dated
June 13, 1997 (the "Base Prospectus") and the prospectus supplement dated
March 9, 1998 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 "Certain
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.
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
<PAGE>
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,
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
--------------------------------------
ORRICK, HERRINGTON & SUTCLIFFE LLP
D-2
