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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) March 25, 1999
Corporate Asset Backed Corporation
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 33-91744 16-1057879
(STATE OR OTHER JURISDICTION (COMMISSION) (I.R.S. EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
c/o PaineWebber Incorporated
1285 Avenue of the Americas, 18th Floor
New York, New York 10019
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code (212) 713-2841
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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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 Accountant.
NOT APPLICABLE.
Item 5. Other Events.
On March 25, 1999, a single series of Trust
Certificates (the "Certificates"), was issued pursuant to an
Amended and Restated Trust Agreement (the "Trust Agreement")
dated as of March 25, 1999, between Corporate Asset Backed
Corporation (the "Registrant") and United States Trust Company
of New York, as trustee (the "Trustee"). The Trust Agreement
is attached hereto as Exhibit 4.1. The Certificates were
registered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, as amended, under the
Registrant's registration statement on Form S-3 (No. 33-91744)
and sold to PaineWebber Incorporated and Salomon Smith Barney
Inc. (collectively, the "Underwriters") pursuant to an
underwriting agreement (the "Underwriting Agreement") dated as
of March 18, 1999, among the Registrant, CABCO Trust for J. C.
Penney Debentures (the "Trust") the trust created under the
Trust Agreement, and the Underwriters. The Underwriting
Agreement is attached hereto as Exhibit 1.1. In connection
with the issuance of the Certificates, Sidley & Austin
delivered its opinion with respect to certain tax matters. A
copy of such opinion is attached hereto as Exhibit 8.1.
Item 6. Resignations of Registrant's Directors.
NOT APPLICABLE.
Item 7. Financial Statements, Pro-Forma Financial Information and
Exhibits.
(a) NOT APPLICABLE.
(b) NOT APPLICABLE.
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(c) EXHIBITS.
1.1 Underwriting Agreement, dated as of March 18, 1999,
among the Registrant, the Trust and the Underwriters.
4.1 Amended and Restated Trust Agreement, dated as of
March 25, 1999, between the Registrant and the
Trustee.
8.1 Opinion of Sidley & Austin with respect to tax
matters.
Item 8. Change in Fiscal Year.
NOT APPLICABLE.
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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 thereunto duly authorized.
CORPORATE ASSET BACKED
CORPORATION
By: /s/ Thomas C. Naratil
Name: Thomas C. Naratil
Title: President, Chief Executive Officer
and Executive Vice President
Dated: March 30, 1999
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EXHIBIT INDEX
Exhibit
1.1 Underwriting Agreement, dated as of March 18, 1999, among the
Registrant, the Trust and the Underwriters
4.1 Amended and Restated Trust Agreement, dated as of March 25, 1999,
between the Registrant and the Trustee
8.1 Opinion of Sidley & Austin with respect to tax matters
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EXHIBIT 1.1
CABCO TRUST FOR J. C. PENNEY DEBENTURES
2,106,000 Trust Certificates
UNDERWRITING AGREEMENT
March 18, 1999
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Salomon Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, NY 10013
Ladies and Gentlemen:
CABCO Trust for J. C. Penney Debentures, a common law trust
created under the laws of the state of New York (the "Trust"), proposes to sell
to PaineWebber Incorporated ("PaineWebber") and Salomon Smith Barney Inc. ("SSB"
and, together with PaineWebber, the "Underwriters"), pursuant to this agreement
(this "Agreement"), 2,106,000 Trust Certificates, principal amount $25 per
certificate (the "Certificates"), to be issued pursuant to the Amended and
Restated Trust Agreement to be dated as of the Closing Date (as defined below),
including the Standard Terms and Provisions of Series Trust Deposit Agreement
incorporated therein by reference (the "Trust Agreement") between Corporate
Asset Backed Corporation (the "Depositor") and United States Trust Company of
New York, as trustee (the "Trustee"). The Certificates will represent in the
aggregate the entire beneficial ownership interest in the Trust, whose sole
asset consists of $52,650,000 of 75/8% Debentures due 2097 issued by J. C.
Penney Company, Inc. exclusive of interest accrued thereon from and including
March 1, 1999, to but excluding the Closing Date (exclusive of such interest,
the "Underlying Securities"). Pursuant to an assignment agreement dated as of
the Closing Date (the "Assignment Agreement") between PaineWebber and the
Depositor, PaineWebber will convey the Underlying Securities to the Depositor.
Pursuant to the Trust Agreement and a Cross-Receipt, the Depositor will convey
the Underlying Securities to the Trustee. The Certificates are described more
fully in the Registration Statement (as hereinafter defined). This is to confirm
the arrangements with respect to the Underwriters' purchase of the Certificates.
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The Assignment Agreement, the Trust Agreement and this
Agreement are collectively referred to herein as the "Transaction Documents."
The Depositor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-91744) for the registration of the Certificates under the Securities Act of
1933 (the "1933 Act"), which registration statement has become effective and
copies of which, as amended to the date hereof, have been delivered to the
Underwriters. The Depositor proposes to file with the Commission pursuant to
Rule 424(b)(5) under the rules and regulations of the Commission under the Act
(the "1933 Act Regulations") a prospectus supplement dated March 18, 1999 (the
"Prospectus Supplement") to the prospectus (the "Base Prospectus") dated March
18, 1999 included in such registration statement, relating to the Certificates
and the method of distribution thereof. Such registration statement on Form S-3,
including exhibits thereto, as amended as of the date hereof, is hereinafter
called the "Registration Statement"; and such prospectus, as supplemented by the
Prospectus Supplement, is hereinafter called the "Prospectus."
SECTION 1. Representations and Warranties.
(a) The Depositor represents and warrants to each of the
Trustee and the Underwriters as follows:
(i) The Registration Statement, as amended as of the
effective date thereof (the "Effective Date"), and the Prospectus, as
of the date thereof, complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations. The
Registration Statement, as of the Effective Date, did not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as of the date thereof, did
not, and as of the Closing Date will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Depositor in writing by the Underwriters expressly for
use in the Registration Statement or Prospectus. The Depositor and the
Underwriters hereby acknowledge that only the statements set forth in
the paragraph immediately preceding the final paragraph of page 2 of
the Base Prospectus, the first sentence of the final paragraph of page
2 of the Base Prospectus, the final paragraph of the cover of the
Prospectus Supplement and under the caption "Underwriting" in the
Prospectus Supplement constitute statements made in reliance upon and
in conformity with information furnished to the Depositor in writing by
the Underwriters expressly for use in the Registration Statement or
Prospectus.
(ii) Since the respective dates as of which
information is given in the Registration Statement and Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings,
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business affairs or business prospects of the Depositor, whether or not
arising in the ordinary course of business, and (B) there have been no
transactions entered into by the Depositor, other than those in the
ordinary course of business, which are material with respect to the
Depositor.
(iii) The Depositor has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business, as now
conducted by it, and to enter into and perform its obligations under
the Transaction Documents to which it is a party.
(iv) The Depositor is not in violation of its charter
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Depositor is a party, or to which any of the property or
assets of the Depositor may be subject, or by which it or any of them
may be bound; and the execution, delivery and performance of the
Transaction Documents to which it is a party and the consummation of
the transactions contemplated therein and compliance by the Depositor
with its obligations thereunder have been duly authorized by all
necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Depositor pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Depositor is subject, nor will such
action result in any violation of the provisions of the charter or
by-laws of the Depositor or any applicable law, administrative
regulation or administrative or court decree.
(v) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Depositor, threatened against or
affecting the Depositor, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Depositor, or which might materially and adversely
affect the properties or assets thereof or which might materially and
adversely affect the consummation of the transactions contemplated by
the Transaction Documents to which it is a party; all pending legal or
governmental proceedings to which the Depositor is a party or of which
its property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Depositor
which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been so filed.
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(vi) No authorization, approval or consent of any
court or governmental authority or agency is necessary in connection
with the offering, issuance or sale of the Certificates, except such as
have been, or as of the Closing Date will have been, obtained or such
as may otherwise be required under applicable state securities laws in
connection with the purchase and offer and sale of the Certificates by
the Underwriters.
(vii) The Depositor possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and the Depositor has not received any
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Depositor.
(viii) Each of the Transaction Documents to which it
is a party has been duly authorized, executed and delivered by the
Depositor and constitutes a legal, valid and binding agreement
enforceable against the Depositor in accordance with its terms, except
as enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, (B)
general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of such
Transaction Documents that purport to provide indemnification from
securities law liabilities.
(ix) At the time of the execution and delivery of the
Trust Agreement, the Depositor (A) will have good and marketable title
to the Bonds being transferred by it to the Trustee pursuant thereto,
free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively "Liens"), (B)
will not have assigned to any person any of its right, title or
interest in such Bonds or in the Trust Agreement and (C) will have the
power and authority to transfer such Bonds to the Trustee, and upon
execution and delivery of the Trust Agreement, the Trustee will have
acquired ownership of all of the Depositor's right, title and interest
in and to the related Bonds, and upon delivery to the Underwriters of
the Certificates pursuant to this Agreement, the Underwriters will have
good and marketable title to the Certificates, in each case free of
Liens.
(x) The Certificates and the Trust Agreement will
each conform in all material respects to the descriptions thereof
contained in the Prospectus, and the Certificates, when duly and
validly authorized, executed, authenticated and delivered in accordance
with the Trust Agreement and paid for as provided herein, will be
entitled to the benefits of the Trust Agreement.
(xi) The Trust created by the Trust Agreement will
not be required to be registered as an investment company under the
Investment Company Act of 1940, as
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amended (the "1940 Act"), and, as of the Closing Date, the Trust
Agreement shall be duly qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(xii) At the Closing Date, each of Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group shall have assigned
an investment grade rating to the Certificates.
(xiii) Any taxes, fees and other governmental charges
in connection with the execution, delivery and issuance of the
Transaction Documents to which it is a party and the Certificates have
been paid or will be paid at or prior to the Closing Date.
(xiv) The sale of the Bonds to the Trustee on the
Closing Date will be treated by the Depositor for financial accounting
and reporting purposes as a sale of assets and not as a pledge of
assets to secure debt.
(b) Any certificate signed by any officer of the Depositor and
delivered to the Trustee, the Underwriters or their counsel shall be deemed a
representation and warranty by the Depositor to the Trustee and the Underwriters
as to the matters covered thereby.
SECTION 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in
reliance upon the representations and warranties herein contained, the Trust
agrees to sell to the Underwriters, and each of the Underwriters agrees to
purchase from the Trust, at a purchase price set forth on Schedule A hereto, the
number of Certificates set forth on Schedule A hereto.
SECTION 3. Delivery and Payment.
Payment of the purchase price for, and delivery of, the
Certificates to be purchased by the Underwriters shall be made at the office of
PaineWebber Incorporated, 1285 Avenue of the Americas, New York, New York 10019,
or at such other place as shall be agreed upon by the Underwriters and the
Trust, at 10:00 a.m. New York City time, on March 25, 1999, which date and time
may be postponed by agreement between you and the Trust (such time and date of
payment and delivery being herein called the "Closing Date"). Payment shall be
made to the Trust or its order at the Trust's option, by (i) appropriate
notation of an inter company transfer between affiliates of PaineWebber Group,
Inc. or (ii) in immediately available Federal funds wired to such bank as may be
designated by the Trust, against delivery of the Certificates. The Certificates
shall be in such denominations and registered in such names as you may request
in writing at least two business days before the Closing Date. The Certificates
will be made available for examination and packaging by you not later than 10:00
a.m. on the last business day prior to the Closing Date.
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SECTION 4. Covenants of the Depositor. The Depositor covenants
with the Trustee and the Underwriters as follows:
(a) The Depositor will give the Trustee and the Underwriters
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (including any
revised prospectus which the Depositor proposes for use by the Underwriters in
connection with the offering of the Certificates which differs from the
prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which either
of the Underwriters shall reasonably object.
(b) The Depositor will cause the Prospectus to be transmitted
to the Commission for filing pursuant to Rule 424(b)(5) under the 1933 Act by
means reasonably calculated to result in filing with the Commission pursuant to
said rule.
(c) The Depositor will deliver to the Underwriters as many
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) as the Underwriters may reasonably request and will also
deliver to the Underwriters a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits).
(d) The Depositor will furnish to the Underwriters, from time
to time during the period when the Prospectus is required to be delivered under
the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such
number of copies of the Prospectus (as amended or supplemented) as the
Underwriters may reasonably request for the purposes contemplated by the 1933
Act or the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(e) If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the Certificates
is required to be delivered under the 1933 Act, any event shall occur as a
result of which it is necessary, in the opinion of counsel for the Depositor, to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Depositor will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for the Depositor) so
that, as so amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, and the Depositor will
furnish to the Trustee and the Underwriters a reasonable number of copies of
such amendment or supplement.
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(f) The Depositor will endeavor to arrange for the
qualification of the Certificates for sale under the applicable securities laws
of such states and other jurisdictions of the United States as the Underwriters
may designate; provided, however, that the Depositor shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Certificates have been so
qualified, the Depositor will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement.
(g) If the transactions contemplated by this Agreement are
consummated, the Depositor will pay or cause to be paid all expenses incident to
the performance of the obligations of the Depositor under this Agreement.
(h) If, during the period after the Closing Date in which a
prospectus relating to the Certificates is required to be delivered under the
1933 Act, the Depositor receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing the offer and sale of
the Certificates is in effect, the Depositor will immediately advise the
Underwriters and the Trustee of the issuance of such stop order. The Depositor
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
SECTION 5. Conditions of Underwriters' Obligations. The
Underwriters' obligation to purchase the Certificates shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the Depositor's knowledge, threatened by the Commission.
(b) On the Closing Date, counsel for the Underwriters shall
have been furnished with such other documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Certificates as herein contemplated and related proceedings, or
in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Trust in connection with the issuance and sale of the
Certificates as herein contemplated shall be satisfactory in form and substance
to the Underwriters and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Trust at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party.
SECTION 6. Indemnification.
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(a) The Depositor agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls either of the Underwriters,
within the meaning of Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) of the 1933 Act Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Depositor; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Depositor by
the Underwriters expressly for use in the Registration Statement (or any
amendment thereto) or Prospectus (or any amendment or supplement thereto). The
Depositor and the Underwriters hereby acknowledge that only the statements set
forth in the paragraph immediately preceding the final paragraph of page 2 of
the Base Prospectus, the first sentence of the final paragraph of page 2 of the
Base Prospectus, the final paragraph of the cover of the Prospectus Supplement
and under the caption "Underwriting" in the Prospectus Supplement constitute
statements made in reliance upon and in conformity with information furnished to
the Depositor in writing by the Underwriters expressly for use in the
Registration Statement or Prospectus.
(b) The Underwriters agree to indemnify and hold harmless the
Depositor, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who
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controls the Depositor within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Depositor by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto). The
Depositor and the Underwriters hereby acknowledge that only the statements set
forth in the paragraph immediately preceding the final paragraph of page 2 of
the Prospectus, the first sentence of the final paragraph of page 2 of the
Prospectus, the final paragraph of the cover of the Prospectus Supplement and
under the caption "Underwriting" in the Prospectus Supplement constitute
statements made in reliance upon and in conformity with information furnished to
the Depositor in writing by the Underwriters expressly for use in the
Registration Statement or Prospectus.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
Depositor and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Depositor and the Underwriters, as incurred,
in such proportion as is appropriate to reflect not only the relative benefits
received by the Depositor on the one hand and the Underwriters on the other from
the offering of the Certificates but also the relative fault of the Depositor on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted on such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Depositor on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
Depositor or by the Underwriters, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Depositor, each
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officer of the Depositor who signed the Registration Statement, and each person,
if any, who controls the Depositor within the meaning of Section 14 of the 1933
Act shall have the same rights to contribution as the Depositor.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Trust, and shall survive delivery of the Certificates to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) If the Trust Agreement is not executed by the Closing
Date, this Agreement shall terminate within 15 days after the Closing Date, and
such termination shall be without liability of any party to any other party.
(b) The Underwriters may terminate this Agreement, by notice
to the Trust and the Depositor, at any time at or prior to the Closing Date (i)
if there has been, since the date of this Agreement or since the date as of
which information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Trust and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in the judgment of the Underwriters, impracticable to market the Certificates or
to enforce contracts for the sale of the Certificates, or (iii) if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal or New York
authorities.
(c) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party.
SECTION 10. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
PaineWebber shall be directed to PaineWebber Incorporated at 1285 Avenue of the
Americas, New York, New York 10019, Attention: Jonathan Gottlieb; notices to SSB
shall be directed to Salomon Smith Barney Inc., 390 Greenwich Street, 4th Floor,
New York, NY 10013, Attention: Peter Jurdjevic; notices to the Trust shall be
directed to the Trustee at United States Trust Company of New York, 114 West
47th Street, New York, New York 10036-1532, Attention: Thomas Musarra; and
notices to the Depositor shall be directed to Corporate Asset Backed
-10-
<PAGE> 11
Corporation, c/o PaineWebber Incorporated at 1285 Avenue of the Americas, New
York, New York 10019, Attention: Jonathan Gottlieb; or, as to any party, such
other address as may hereafter be furnished by such party to the other in
writing.
SECTION 11. Parties. This Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Depositor and the Trust and their
respective successors. In addition, this Agreement shall inure to the benefit of
any third party named herein as a third party beneficiary and only to the extent
provided herein. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust and their respective successors and the controlling
persons and officers and directors referred to in Section 5 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Trust and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Certificates from the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
SECTION 12. Governing Law; and Time. 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 in said State. Specified times
of day refer to New York City time.
[SIGNATURE PAGE FOLLOWS]
-11-
<PAGE> 12
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust and the Depositor a
counterpart hereof, whereupon this Agreement, along with all counterparts, will
become a binding agreement between the Underwriters, the Trust and the Depositor
in accordance with its terms.
Very truly yours,
CABCO TRUST FOR J. C. PENNEY DEBENTURES
By: UNITED STATES TRUST COMPANY OF
NEW YORK, not in its individual capacity
but solely as Trustee
By: /s/ Thomas Musarra
Name: Thomas Musarra
Title: Senior Vice President
CORPORATE ASSET BACKED CORPORATION
By: /s/ Thomas C. Naratil
Name: Thomas C. Naratil
Title: President, Chief Executive Officer and
Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
PAINEWEBBER INCORPORATED
By: /s/ Peter Masco
Name: Peter Masco
Title: Managing Director
SALOMON SMITH BARNEY INC.
By: /s/ Lee W. Ressegue
Name: Lee W. Ressegue
Title: Managing Director
<PAGE> 13
SCHEDULE A
<TABLE>
<CAPTION>
Underwriter Price Number of Certificates
- ----------- ----- ----------------------
<S> <C> <C>
PaineWebber Incorporated $25,495,762.50 1,053,000
Salomon Smith Barney Inc. $25,495,762.50 1,053,000
-------------- ---------
Total $50,991,525 2,106,000
=========== =========
</TABLE>
-13-
<PAGE> 1
EXHIBIT 4.1
EXECUTION COPY
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
between
CORPORATE ASSET BACKED CORPORATION,
as Depositor,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
for Trust Certificates issued by
CABCO Trust for J. C. Penney Debentures
================================================================================
<PAGE> 2
CABCO TRUST FOR
J. C. PENNEY DEBENTURES
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement (this "Series Trust
Agreement"), dated as of March 25, 1999, between Corporate Asset Backed
Corporation, as Depositor, and United States Trust Company of New York, as
Trustee, for $52,650,000 Trust Certificates for J. C. Penney Debentures (the
"Certificates"), incorporates by reference the Standard Terms and Provisions of
Series Trust Agreement (the "Standard Terms") attached as Exhibit B hereto, and
is governed by the Standard Terms as fully as if set forth herein at length.
This Series Trust Agreement amends and restates in its entirety the Initial
Trust Agreement (the "Initial Trust Agreement"), dated as of March 18, 1999,
between the Depositor and the Trustee, as trustee. All capitalized terms not
defined herein shall have the same meaning as set forth in the Standard Terms.
W I T N E S S E T H:
Section 1. A Trust is hereby created under the laws of the
State of New York and in the manner specified in Article II of the Standard
Terms for the benefit of Holders of the Certificates. The assets of the Trust
shall consist of the securities (referred to herein and in the Standard Terms as
the "Bonds") described in Exhibit A hereto, all distributions thereon after the
date hereof, all right, title and interest in and to such distributions and all
other rights and privileges of the Holders of the Certificates under this Series
Trust Agreement.
Section 2. The name of the Trust is CABCO Trust for J. C.
Penney Debentures.
Section 3. The Certificates shall be issued as a single class
in the amount set forth in Exhibit A hereto; shall have the standard terms set
forth in the Standard Terms; and shall have the nonstandard terms set forth in
Exhibit A hereto. Certificates shall be issued in substantially the form of the
Form of Certificate set forth in Exhibit C to this Series Trust Agreement. The
Certificates shall evidence fractional interests in the assets of the Trust,
payable solely from payments received by the Trustee attributable to the Bonds.
Section 4. The Depositor hereby authorizes and directs the
Trustee to execute and deliver a letter of representations, in the form
customarily provided to DTC, from the Trustee and the Depositor dated the date
of delivery of the Certificates (the "Letter of Representations").
<PAGE> 3
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.
CORPORATE ASSET BACKED CORPORATION,
as Depositor
By /s/ Thomas C. Naratil
------------------------------------------------
Name: Thomas C. Naratil
Title: President, CEO & Executive Vice President
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By /s/ Thomas Musarra
------------------------------------------------
Name: Thomas Musarra
Title: Senior Vice President
Exhibit A -- Description of the Bonds and the Certificates; Description of
Certain Terms Used in the Agreement
Exhibit B -- Standard Terms and Provisions of Series Trust Agreement
Exhibit C -- Form of Certificate
Exhibit D -- Officer's Certificate of the Trustee
-2-
<PAGE> 4
EXHIBIT A
TO SERIES TRUST
AGREEMENT
DESCRIPTION OF THE BONDS AND THE CERTIFICATES; DESCRIPTION OF
CERTAIN TERMS USED IN THE AGREEMENT
Part I -- Description of the Bonds
Issuer: J. C. Penney Company, Inc.
Bonds: 7 5/8% Debentures due March 1, 2097
Dated: February 20, 1997
Original Principal
Maturity Date: March 1, 2097
Original Par Value
Amount Issued: $500,000,000
CUSIP Number: 708160 BL 9
Stated Interest Rate: 7 5/8%
Interest Payment Dates: March 1 and September 1
First Call Date: Closing Date
Redemption Date
and Price: The redemption price will be equal to the greater of
(i) 100% of the principal amount of the Bonds to be
redeemed and (ii) the sum of the present value of the
Remaining Scheduled Payments (as such term is defined
in the Prospectus Supplement dated February 20, 1997,
relating to the Bonds (the "J. C. Penney Prospectus
Supplement")) thereon discounted to the redemption
date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury
Rate (as such term is defined in the J. C. Penney
Prospectus Supplement) plus 20 basis points (or, in
the case of a redemption in connection with the
occurrence of a Tax Event (as such term is defined in
the J. C. Penney Prospectus Supplement), 40 basis
points), together in either case with accrued
interest on the principal amount being redeemed to
the date of redemption.
Mode of Payment
of Bonds: By credit to the account of the Holder at DTC.
Record date of Bonds: The close of business on February 15 or August 15
(whether or not a Business Day), next preceding an
interest payment date.
A-1
<PAGE> 5
Event of Default with
respect to payment
of interest and principal: An event of default under the indenture exists
upon (i) the default in the payment of interest
when due and payable and continuance of such
default for 30 days, or (ii) the default in the
payment of principal (or premium, if any) at
maturity.
Par Value Amount of
Bonds Deposited Under
Series Trust Agreement: $52,650,000
The Bonds will be held by the Trustee as Book-Entry Credits at DTC.
Part II -- Description of the Certificates
Classes of Certificates: Pooled Certificates
Aggregate Face Amount
of Pooled Certificates: $52,650,000
<TABLE>
<CAPTION>
Item Aggregate Face Minimum Offered
Number Due Date CUSIP Number Amount Offered Denominations
- ------ -------- ------------ -------------- ---------------
<S> <C> <C> <C> <C>
1 March 1, 2097 126797 20 8 $52,650,000 $25
</TABLE>
Part III -- Definitions of Certain Terms Used in the Agreement
<TABLE>
<S> <C>
Authorized Denominations (Section 1.01) $25
Certificate Principal Amount (Section 1.01) $25
Closing Date (Section 1.01) March 25, 1999.
Corporate Trust Office (Section 1.01) United States Trust Company of New York
114 West 47th Street
New York, NY 10036-1532
Depositor Address (Section 9.04) Corporate Asset Backed Corporation
c/o Paine Webber Incorporated
1285 Avenue of the Americas, 18th Floor
</TABLE>
A-2
<PAGE> 6
<TABLE>
<S> <C>
New York, NY 10019
Distribution Dates (Section 1.01) March 1 and September 1 of each year, commencing
September 1, 1999.
Indenture (Section 1.01) Indenture, dated as of April 1, 1997, between J. C.
Penney Company, Inc., and First Trust of California,
National Association, Successor Trustee to Bank of
America National Trust and Savings Association.
Indenture Trustee (Section 1.01) First Trust of California, National Association
Trustee Address (Section 9.04) United States Trust Company of New York
114 West 47th Street
New York, NY 10036-1532
Rating Agency (Section 1.01) Each of Moody's Investors Service, Inc. and Standard
& Poor's Ratings Group
Rating Agency Address (Section 9.04) Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Standard & Poor's Ratings Group
26 Broadway, 15th Floor
New York, NY 10004
Retained Amount (Section 1.01) Interest accrued on the Bonds from,
and including, March 1, 1999 to,
but excluding, the Closing Date, equal to $267,637.50.
</TABLE>
A-3
<PAGE> 7
EXHIBIT B
TO SERIES TRUST
AGREEMENT
================================================================================
STANDARD TERMS AND PROVISIONS OF SERIES TRUST AGREEMENT
between
CORPORATE ASSET BACKED CORPORATION,
as Depositor,
and
the Trustee
================================================================================
Relating to Trust Certificates of the Series identified
in the Series Trust Agreement
<PAGE> 8
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND AGREEMENT PROVISIONS*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Agreement Section
- --------------- -----------------
<S> <C>
310(a)(1) ............................................ 5.01
(a)(2) ............................................ 5.01
(a)(3) ............................................ Not Applicable
(a)(4) ............................................ 5.02
(b) ............................................ 5.11, 5.01
(c) ............................................ Not Applicable
311(a) ............................................ 5.10
(b) ............................................ 5.10
312(a) ............................................ 6.01, 6.02(a)
(b) ............................................ 6.02(b)
(c) ............................................ 6.02(c)
313(a) ............................................ 6.03
(b) ............................................ 6.03
(c) ............................................ 6.03
(d) ............................................ 6.03
314(a) ............................................ 5.09(a), 5.09(b)
(b) ............................................ 5.09(c), 5.09(d)
(c)(1) ............................................ 5.09(f)
(c)(2) ............................................ 5.09(f)
(c)(3) ............................................ 5.09(f)
(d)(1) ............................................ 5.09(e)
(d)(2) ............................................ 5.09(e)
(d)(3) ............................................ 5.09(e)
(e) ............................................ 5.09(f)
315(a) ............................................ 5.08
(b) ............................................ 5.02
(c) ............................................ 5.02
(d) ............................................ 5.08
(d)(1) ............................................ 5.08
(d)(2) ............................................ 5.08
(d)(3) ............................................ 5.08
(e) ............................................ 5.13
316(a)(1)(A) ............................................ 5.04
316(a)(1)(B) ............................................ 5.05
316(a)(2) ............................................ Not Applicable
316(b) ............................................ 2.08, 4.01
316(c) ............................................ 2.08, 2.09
317(a) ............................................ 5.03
317(b) ............................................ 4.03
3.18(a) ............................................ 9.03
</TABLE>
*This reconciliation and tie shall not, for any purpose, be deemed to be part of
the within agreement.
B-ii
<PAGE> 9
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I - DEFINITIONS
Section 1.01. Certain Definitions............................................................B-1
ARTICLE II - CREATION OF TRUST; DELIVERY AND CUSTODY
OF BONDS; FORM OF CERTIFICATES; EXECUTION AND
DELIVERY, SURRENDER AND REDEMPTION OF CERTIFICATES
Section 2.01. Creation of Trust; Delivery and Custody of Bonds; Execution
and Delivery of Certificates in Respect Thereof...........................................B-7
Section 2.02. Form of Certificates...........................................................B-8
Section 2.03. Registration and Registration of Transfer and Exchange of Certificates........B-8
Section 2.04. Limitations on Execution and Delivery, Surrender and Registration of
Transfer and Exchange of Certificates.....................................................B-9
Section 2.05. Mutilated, Destroyed, Lost or Stolen Certificates..............................B-9
Section 2.06. Persons Deemed Owners.........................................................B-10
Section 2.07. Cancellation and Destruction of Surrendered Certificates......................B-10
Section 2.08. Book-Entry....................................................................B-10
Section 2.09. Action or Consent of Holders..................................................B-12
Section 2.10. Transfer of Certificates Held by DTC to Successor Depository..................B-13
Section 2.11. Temporary Certificates........................................................B-13
ARTICLE III - CERTAIN OBLIGATIONS OF HOLDERS OF
CERTIFICATES; DEPOSITOR'S WARRANTIES
Section 3.01. Filing Proofs, Certificates and Other Information.............................B-14
Section 3.02. Payment of Taxes or Other Governmental Charges................................B-14
Section 3.03. Depositor's Warranties........................................................B-14
ARTICLE IV - PAYMENT OF INTEREST AND PRINCIPAL; CUSTODY
OF PROCEEDS OF INTEREST AND PRINCIPAL PAYMENTS
Section 4.01. Payment of Interest; Payment of Principal; Mandatory Exchange of
Callable Principal Certificates and Callable Stripped Bond Certificates..................B-15
Section 4.02. Segregation of Moneys Received from Issuers in Respect of Bonds...............B-17
Section 4.03. Paying Agent..................................................................B-17
ARTICLE V - THE TRUSTEE AND THE DEPOSITOR
Section 5.01. Eligibility of Trustee; Disqualification......................................B-18
Section 5.02. Trustee's Duties on Default; No Liability of the Trustee or the
Depositor on the Bonds...................................................................B-18
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee; Distribution of Amounts Received in Respect of Defaulted Bonds..................B-19
Section 5.04. Control by Holders............................................................B-20
</TABLE>
B-iii
<PAGE> 10
<TABLE>
<S> <C>
Section 5.05. Waiver of Past Defaults.......................................................B-21
Section 5.06. Maintenance of Offices and Agencies by the Trustee............................B-21
Section 5.07. Prevention of or Delay in Performance by the Trustee or the Depositor.........B-21
Section 5.08. Liability of the Trustee and the Depositor....................................B-21
Section 5.10. Preferential Collection of Claims Against Depositor...........................B-27
Section 5.11. Resignation and Removal of the Trustee; Appointment of
Successor Trustee........................................................................B-27
Section 5.12. Indemnification by the Depositor..............................................B-29
Section 5.13. Undertaking for Costs.........................................................B-30
Section 5.14. Charges and Expenses..........................................................B-31
Section 5.15. Trustee Reports...............................................................B-31
ARTICLE VI - HOLDERS' LISTS AND REPORTS
Section 6.01. Depositor to Furnish Names and Addresses of Holders to Trustee................B-31
Section 6.02. Preservation of Information, Communications to Holders........................B-32
Section 6.03. Reports by Trustee............................................................B-32
ARTICLE VII - AMENDMENT AND TERMINATION
Section 7.01. Amendment.....................................................................B-32
Section 7.02. Termination...................................................................B-33
ARTICLE VIII - REDEMPTION OF CERTIFICATES
Section 8.01. Redemption....................................................................B-33
Section 8.02. Notice of Redemption..........................................................B-33
ARTICLE IX - MISCELLANEOUS
Section 9.01. Exclusive Benefit of Parties and Holders of Certificates; Effective Date......B-34
Section 9.02. Invalidity of Provisions......................................................B-34
Section 9.03. Conflict with Trust Indenture Act.............................................B-34
Section 9.04. Notices.......................................................................B-34
Section 9.05. Governing Law; Forum..........................................................B-35
Section 9.06. Headings......................................................................B-35
Section 9.07. Covenant of Depositor and Trustee Not to Place Trust in Bankruptcy............B-35
</TABLE>
B-iv
<PAGE> 11
STANDARD TERMS AND PROVISIONS OF SERIES TRUST AGREEMENT
This document constitutes Standard Terms and Provisions of Series Trust
Agreement which are to be incorporated by reference in, and attached as Exhibit
B to, one or more series trust deposit agreements (each, a "Series Trust
Agreement") by and among Corporate Asset Backed Corporation, as Depositor, and
the trustee designated therein, as Trustee.
Each Series Trust Agreement will create a trust under the laws of the State
of New York to hold securities (the "Bonds") and all distributions thereon and
will provide for the creation, execution and delivery of trust certificates (the
"Certificates").
These Standard Terms shall be of no force and effect unless and until
incorporated by reference into a Series Trust Agreement.
The following terms and provisions shall govern the Certificates subject to
contrary or additional terms and provisions expressly set forth in a Series
Trust Agreement, which contrary or additional terms and provisions of the Series
Trust Agreement shall control.
ARTICLE I
DEFINITIONS
Section 1.01. Certain Definitions. All capitalized terms used herein
shall have the meaning set forth in this Section 1.01 unless the context
otherwise requires:
The term "Accreted Value" shall mean, for any Coupon Certificate,
Principal Certificate, Callable Principal Certificate or Stripped Coupon
Certificate, (a) the original issue price for such Certificate as set forth in
Exhibit A to the Series Trust Agreement, plus (b) an amount equal to an
investment return thereon accrued to the date of determination calculated based
on a semiannual compounding rate, on the basis of a 360 day year composed of
twelve 30-day months, equal to the original yield to maturity on the Closing
Date on such Certificate as set forth in Exhibit A to the Series Trust
Agreement. With respect to the allocation of proceeds of the Bonds received in
connection with a payment default on the Bonds, the relevant determination date
shall be the Petition Date. With respect to the determination of Accreted Value
in connection with a vote relating to the Bonds, the relevant determination date
shall be a date determined by the Trustee, which date shall be within fifteen
Business Days of the date the Trustee casts its votes as provided herein.
The term "Agreement" shall mean the trust deposit agreement consisting
of the Series Trust Agreement into which is incorporated by reference the
Standard Terms, including all exhibits, schedules, appendices, supplements and
amendments to each.
B-1
<PAGE> 12
The term "Authorized Denominations" for each class of Certificates
shall mean the dollar amount, and greater multiples thereof (or of such other
dollar amount specified in the Series Trust Agreement), set forth in the Series
Trust Agreement.
The term "Authorized Officer" shall mean any officer of the Depositor
who is authorized to act for the Depositor in matters relating to the Depositor.
The term "Available Information Event" shall mean that the Issuer has
suspended its Exchange Act reporting requirements at a time when the Exchange
Act reporting requirements with respect to the Certificates have not been
suspended or terminated.
The term "Beneficial Owner" shall mean any purchaser of Certificates
which are held through a Direct or Indirect DTC Participant, as such terms are
used in the rules and regulations of DTC.
The term "Bond" shall mean, with respect to the issuance of
Certificates hereunder, the Bonds specified in the Series Trust Agreement
relating to such Certificates in the aggregate principal amount so specified.
The term "Book-Entry Credit" shall mean the evidence of the deposit by
the Trustee of one or more Bonds in a separate account of the Trustee, as
Trustee under this Agreement, identified in the Series Trust Agreement.
The term "Business Day" shall mean a day which is not a day when
banking institutions or trust companies in New York City are authorized or
obligated by law, regulation or executive order to remain closed.
The term "Callable Principal" shall mean the right to receive (i) the
payment, whether upon stated maturity or upon earlier redemption, of the
Principal and redemption premium, if any, of Bonds which are redeemable at the
option of the Issuer thereof prior to stated maturity, and (ii) the Interest
relating to such Bonds with respect to Interest Payment Dates after the First
Call Date for such Bonds, in each case subject to Section 5.03(b) hereof.
The term "Certificate" shall mean a certificate of a class of
certificates to be issued under this Agreement, which classes are specified in
the Series Trust Agreement for the series. Such classes may consist of:
(i) Coupon Certificates, which entitle the Holders thereof, in the
aggregate, to the Interest payable on a single Interest Payment Date on or
before the First Call Date for the Bonds, or the stated maturity date in
the case of Bonds not redeemable (otherwise than in connection with a
default or acceleration) at the option of the Issuer thereof prior to
stated maturity.
(ii) Principal Certificates, which entitle the Holders thereof, in the
aggregate, to Principal, payable at the stated maturity of the Bonds, of
Bonds which are not redeemable (otherwise than
B-2
<PAGE> 13
in connection with a default or acceleration) at the option of the Issuer
thereof prior to stated maturity.
(iii) Callable Principal Certificates, which entitle the Holders
thereof, in the aggregate, to the Callable Principal relating to the Bonds.
(iv) Stripped Coupon Certificates, which entitle the Holders thereof,
in the aggregate, to a specified portion (less than 100%) of the Interest
payable on a single Interest Payment Date on or before the First Call Date
for the Bonds, or the stated maturity date in the case of Bonds not
redeemable (otherwise than in connection with a default or acceleration) at
the option of the Issuer thereof prior to stated maturity.
(v) Stripped Bond Certificates, which entitle the Holders thereof, in
the aggregate, to Principal, payable at the stated maturity of the Bonds,
of Bonds which are not redeemable (otherwise than in connection with a
default or acceleration) at the option of the Issuer thereof prior to
stated maturity, and to a specified portion (less than 100%) of Interest
due on the Bonds on each Interest Payment Date on or prior to the First
Call Date.
(vi) Callable Stripped Bond Certificates, which entitle the Holders
thereof, in the aggregate, to the Callable Principal relating to the Bonds,
and to a specified portion (less than 100%) of Interest due on the Bonds on
each Interest Payment Date on or prior to the First Call Date.
(vii) Pooled Certificates, which entitle the Holders thereof to all the
interest payments on the Bonds, all the principal payments on the Bonds and
any related premium payable upon early redemption of the Bonds less any
Retained Amount;
provided, that any designation of classes of Certificates made in the Series
Trust Agreement shall consist of only one of the following options, designated
by letters (a) - (e): (a) Coupon Certificates and Principal Certificates, (b)
Coupon Certificates and Callable Principal Certificates, (c) Stripped Coupon
Certificates and Stripped Bond Certificates, (d) Stripped Coupon Certificates
and Callable Stripped Bond Certificates, or (e) Pooled Certificates.
The term "Certificate Register" shall have the meaning specified in
Section 2.03 hereof.
The term "Closing Date" shall mean the date set forth and designated as
such in the Series Trust Agreement.
The term "Commission" shall mean the Securities and Exchange
Commission.
The term "Corporate Trust Office" shall mean the principal office of
the Trustee as identified in the Series Trust Agreement.
B-3
<PAGE> 14
The term "Depositor" shall mean Corporate Asset Backed Corporation, a
Delaware corporation, and any successor as Depositor hereunder.
The term "Designated Office in New York City," when used with respect
to the Trustee, shall mean an office maintained in accordance with Section 5.06
hereof and designated by the Trustee.
The term "DTC" shall mean The Depository Trust Company, a clearing
agency registered with the Commission, its successor or successors, and its
nominee or nominees.
The term "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
The term "First Call Date" shall mean, for any Bond, the first date
such Bond can be redeemed at the option of the Issuer thereof, which date shall
be specified in the Series Trust Agreement.
The term "Holder" shall mean a Person in whose name a Certificate is
registered in the Certificate Register.
The term "Independent Certificate" shall mean a certificate of a
non-affiliated accountant, engineer, appraiser or other expert, as required by
the TIA.
The term "Indenture Trustee" shall mean the trustee or other fiduciary
for the Bonds.
The term "Interest" shall mean the right to receive the interest
payable on the Bonds on each Interest Payment Date, subject to Section 5.03(b)
hereof.
The term "Interest Payment Dates" shall mean the dates on which
interest payments are due on the Bonds as specified in the Series Trust
Agreement.
The term "Issuer" shall mean the issuer of the Bonds described in
Exhibit A to the Series Trust Agreement.
The term "Issuer Payment Default" shall have the meaning specified in
Section 5.03 hereof.
The term "Letter of Representations" shall mean the letter of
representations from the Depositor and the Trustee to DTC with respect to the
Certificates held at DTC.
The term "Officer's Certificate of the Depositor" shall mean a
certificate signed by any Authorized Officer of the Depositor and delivered to
the Trustee. Unless otherwise specified, any reference in this Agreement to an
Officer's Certificate of the Depositor shall be to an Officer's Certificate of
any Authorized Officer of the Depositor.
The term "Officer's Certificate of the Trustee" shall mean the
certificate of the Trustee in the form attached as Exhibit D to the Series Trust
Agreement.
B-4
<PAGE> 15
The term "Opinion of Counsel" shall mean one or more written opinions
of counsel who may, except as otherwise expressly provided in this Agreement, be
employees of or counsel to the Depositor and who shall be satisfactory to the
Trustee, and which opinion or opinions shall be addressed to the Trustee as
Trustee, shall comply with any applicable requirements of this Agreement, and
shall be in form and substance satisfactory to the Trustee.
The term "Outstanding Certificates" shall mean, as of the date of
determination, all Certificates theretofore authenticated and delivered under
this Agreement except:
(i) Certificates theretofore canceled by the Certificate registrar or
delivered to the Certificate registrar for cancellation;
(ii) Certificates or portions thereof for which money in the necessary
amount for payment thereof has been theretofore deposited with the Trustee
or any Paying Agent in trust for the Holders of such Certificates
(provided, however, that if such Certificates are to be redeemed, notice of
such redemption has been duly given pursuant to this Agreement or provision
therefor, satisfactory to the Trustee, has been made); and
(iii) Certificates in exchange for which 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;
provided that in determining whether the Holders have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Depositor, the Trustee or any Affiliate of any of the foregoing
Persons shall be disregarded and for purposes of determining the requisite
amount of Outstanding Certificates shall be deemed not to be Outstanding
Certificates, 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 that the Trustee knows to be so owned shall
be so disregarded.
The term "Participant" means an entity maintaining a custodial account
in its own name with DTC.
The term "Paying Agent" shall mean the Trustee or any other Person that
meets the eligibility standards for the Trustee specified in Section 5.01 and is
authorized to make payments of Principal or Interest on behalf of the Trustee.
The term "Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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The term "Petition Date" shall mean (i) the date on which a bankruptcy
petition is filed by or against the Issuer of the Bonds or (ii) the date of
commencement of any other similar proceeding, as applicable.
The term "Principal" shall mean the right to receive the principal due
on the Bonds, subject to Section 5.03(b) hereof.
The term "Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
The term "Rating Agency" shall mean each rating agency which is
identified in Exhibit A to the Series Trust Agreement.
The term "Redemption Date" shall mean, with respect to any Bonds to be
redeemed, the date fixed by the Issuer thereof for such redemption.
The term "Responsible Officer" shall mean, with respect to the Trustee,
any officer within the Corporate Trust Office of the Trustee, including any
Senior Vice President, Vice President, Assistant Vice President, Secretary,
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.
The term "Retained Amount" shall mean the amount, if any, described in
Exhibit A to the Series Trust Agreement, which amount shall be held by the
Trustee in trust for the benefit of the Depositor and shall be paid by the
Trustee to the Depositor in accordance with Section 4.01 hereof.
The term "Series" shall mean any series of Certificates identified in a
Series Trust Agreement.
The term "Series Trust Agreement" shall mean the particular series
trust deposit agreement between the Depositor and the Trustee into which these
Standard Terms have been incorporated.
The term "Standard Terms" shall mean this Standard Terms and Provisions
of Series Trust Agreement between Corporate Asset Backed Corporation, as
Depositor, and the Trustee.
The term "TIA" shall mean the Trust Indenture Act of 1939, as amended.
The term "Trust" shall mean the trust established by this Agreement for
the benefit of the Holders of the Certificates under the laws of the State of
New York.
The term "Trustee" shall mean the institution acting as trustee with
whom the Depositor has entered into the Series Trust Agreement.
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The term "Voting Rights" shall mean voting rights on the Certificates
apportioned as required by Section 2.09 hereof.
ARTICLE II
CREATION OF TRUST; DELIVERY AND CUSTODY
OF BONDS; FORM OF CERTIFICATES; EXECUTION AND
DELIVERY, SURRENDER AND REDEMPTION OF CERTIFICATES
Section 2.01. Creation of Trust; Delivery and Custody of Bonds;
Execution and Delivery of Certificates in Respect Thereof. The Trust shall be
established by the Depositor by execution and delivery of the Series Trust
Agreement and the deposit of the Bonds pursuant thereto. The sole asset of the
Trust shall be the Bonds deposited by the Depositor and any other related
property specified in the Series Trust Agreement. The Certificates shall
evidence fractional interests in designated portions of the assets of the Trust.
The income received by, and the assets of, the Trust shall be distributed solely
in accordance with this Agreement. The Depositor shall, by book-entry credit or
otherwise, irrevocably deliver the Bonds to the Trustee and, concurrently
therewith, the Trustee shall, in accordance with the provisions of this
Agreement, execute and deliver to the Depositor, or such Person or Persons as
the Depositor may designate by written instruction, the classes of Certificates
identified in the Series Trust Agreement, evidencing the aggregate amount, in
Authorized Denominations, of the Bonds so delivered to the Trustee. The
Depositor shall also, in connection with the Series Trust Agreement, enter into
a separate agreement with the Trustee, satisfactory to the Trustee, providing
for the payment of the charges and expenses of the Trustee in respect of such
Certificates.
The Trustee shall accept the Bonds so delivered as trustee for the
Holders of the Certificates, which shall be delivered hereunder to evidence the
interests of the Holders in the Bonds, and shall hold the Bonds as provided
hereunder. The Bonds shall be deposited by Book-Entry Credit in an account
maintained on behalf of the Trustee at DTC, unless the Series Trust Agreement
specifies that the Trustee shall hold the Bonds (i) in a special trust account
created by separate recordation on its books, separate from all other assets of
the Trustee, or (ii) in some other manner. Separate subaccounts of any such
special trust account shall be established for each series of Certificates.
The Trustee shall hold all the Bonds delivered to it pursuant to this
Agreement in trust for the Holders, identified and held separate and apart from
the general assets of the Trustee. The account of the Trustee in which the Bonds
are held shall not contain any property of the Trustee in its individual
capacity and shall contain only property held by the Trustee as fiduciary. The
Trustee agrees that it does not have the authority to assign, transfer,
encumber, pledge, sell, set-off or otherwise dispose of any of the Bonds or any
interests therein except as provided hereunder or as required by law.
The Trustee acknowledges that it is not the beneficial owner of the
Bonds and that it holds the Bonds solely as trustee for the Holders pursuant to
this Agreement. Interest and principal payments
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on the Bonds held in the trust account will not be subject to any right, charge,
security interest, lien or claim of any kind in favor of the Trustee, the
Depositor or any Person claiming through either of them.
The representations and covenants contained in the Officer's
Certificate of the Trustee delivered in connection with the issuance of the
Certificates shall be deemed to be incorporated by reference herein, as fully as
if set forth in full herein.
A reasonable time prior to the delivery of Bonds to the Trustee, the
Depositor shall furnish the Trustee with written instructions as to the name in
which the Certificates evidencing interests in such Bonds shall initially be
registered, the denominations in which such Certificates shall initially be
delivered, the Persons and addresses to whom such Certificates are to be
delivered and such other information as may be requested by the Trustee in
connection with the execution and delivery of such Certificates. Each class of
Certificates shall evidence the ownership by the Holders thereof of Interest,
Principal, or Callable Principal (or portions thereof), as the case may be, on
the Bonds, less any Retained Amount, to the extent required by the terms of such
class of Certificates.
Bonds underlying Certificates which are not held by book-entry credit
at an account maintained on behalf of the Trustee at DTC shall be held by the
Trustee at its Designated Office in New York City or at such other place or
places as the Trustee shall determine.
Section 2.02. Form of Certificates. Certificates shall be issued in
registered form only and shall be typewritten or printed on safety paper. The
classes of Certificates to be issued hereunder shall be identified in the Series
Trust Agreement and shall be substantially in the forms set forth in Exhibit C
thereto, in each case with appropriate insertions, modifications and omissions,
as therein and herein so provided. Certificates shall be executed by the Trustee
by the manual signature of a duly authorized signatory of the Trustee. No
Certificate shall be entitled to any benefits under this Agreement or be valid
or obligatory for any purpose, unless it shall have been executed manually by
the Trustee by the signature of a duly authorized signatory. The Trustee shall
record in the Certificate Register each Certificate so signed and delivered as
herein provided.
The Authorized Denominations for each class of Certificates shall be
the dollar amount, and greater multiples thereof (or of such other dollar amount
specified in the Series Trust Agreement), set forth in the Series Trust
Agreement.
Certificates may be endorsed with or have incorporated in the text
thereof such legends or recitals not inconsistent with the provisions of this
Agreement as may be required by the Trustee or required to comply with any
applicable law or any regulation thereunder.
Section 2.03. Registration and Registration of Transfer and Exchange of
Certificates. The Trustee shall keep at its Designated Office in New York City a
register (the register maintained in such office being herein sometimes referred
to as the "Certificate Register") in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates and for the registration of transfers or exchanges of
Certificates.
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Upon surrender for registration of transfer of any Certificate at the
Trustee's Designated Office in New York City, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
Certificates of the same class and series, of any Authorized Denominations and
of a like aggregate amount.
At the option of the Holder, Certificates may be exchanged for other
Certificates of the same class and series, of any Authorized Denominations and
of a like aggregate amount, upon surrender of the Certificates to be exchanged
at the Trustee's Designated Office in New York City. Whenever any Certificates
are so surrendered for exchange, the Trustee shall execute and deliver the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange
of Certificates shall evidence, to the extent indicated thereby, Interest,
Principal and/or Callable Principal (or portions thereof), as the case may be,
of Bonds held by the Trustee hereunder and shall be entitled to the same
benefits under this Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
Every Certificate presented for registration of transfer or for
exchange shall (if so required by the Trustee) be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing.
Section 2.04. Limitations on Execution and Delivery, Surrender and
Registration of Transfer and Exchange of Certificates. As a condition precedent
to the execution and delivery, surrender or registration of transfer or exchange
of any Certificate, the Trustee may require payment, by the Holder requesting
such action, of the then applicable service charge of the Trustee and of a sum
sufficient for reimbursement of any tax or other governmental charge with
respect thereto, may require the production of proof reasonably satisfactory to
it as to the Holder's residence and identity and genuineness of any signature,
may require the Holder to execute certificates and to make such representations
and assurances as the Trustee may reasonably deem necessary or proper, and may
also require compliance with such regulations, if any, as the Trustee may
reasonably establish consistent with the provisions of this Agreement.
The surrender or registration of transfer or exchange of Certificates
may be suspended if any such suspension is deemed necessary or advisable by the
Trustee at any time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any provision of
this Agreement, or for any other reason which makes such surrender or
registration of transfer or exchange impracticable.
Section 2.05. Mutilated, Destroyed, Lost or Stolen Certificates. In
case any Certificate shall be mutilated, the Trustee in its discretion may
execute and deliver a Certificate of the same series, of like form and tenor,
and in the same denomination and bearing a number not contemporaneously
outstanding, in exchange and substitution for such mutilated Certificate. In
case any Certificate shall
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be destroyed, lost or stolen, the Trustee may execute and deliver a Certificate
of the same series, of like form and tenor, and in the same denomination and
bearing a number not contemporaneously outstanding, in lieu of and in
substitution for such destroyed, lost or stolen Certificate, only upon (i) the
filing by the Holder thereof with the Trustee of evidence satisfactory to the
Trustee of the destruction, loss or theft of such Certificate and of the
authenticity of such Holder's ownership thereof, and (ii) the furnishing to the
Trustee of reasonable indemnification satisfactory to it. All expenses and
charges associated with such indemnity and with the preparation, execution and
delivery of a new Certificate shall be borne by the Holder of the Certificate
mutilated, destroyed, lost or stolen.
Section 2.06. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee and any agent of the
Trustee may treat the Person in whose name such Certificate is registered as the
owner of such Certificate for the purpose of receiving payment of such
Certificate and for all other purposes whatsoever, whether or not such
Certificate be overdue, and neither the Trustee nor any agent of the Trustee
shall be affected by notice to the contrary.
Section 2.07. Cancellation and Destruction of Surrendered Certificates.
All Certificates surrendered to the Trustee shall be canceled by the Trustee.
The Trustee is authorized to destroy such Certificates so cancelled.
Section 2.08. Book-Entry. (i) At the election of the Depositor, the
Series Trust Agreement may provide that (1) all Certificates of a series are to
be held in DTC's book-entry only system, (2) all Certificates of a series are to
be issued in definitive physical form, or (3) the Certificates (or any part
thereof) are to be issued or held in such other form as is specified in the
Series Trust Agreement.
(ii) Notwithstanding Section 4.01 hereof, when the registered Holder of
any or all of the Certificates is DTC, such Certificates shall be registered in
the name of Cede & Co., as nominee for DTC, and payment in respect of any
Interest, Principal or Callable Principal represented by any Certificate shall
be made on or after the corresponding Interest Payment Dates, in the case of the
payment of Interest, and on or after the corresponding stated maturity date, in
the case of the payment of Principal, in each case after the Trustee shall have
received the amounts due from the Issuer of the Bonds, by credit of same day
funds to the account indicated for Cede & Co. in the Certificate Register.
Payments received by the Trustee on or prior to 2:00 p.m., New York City time,
shall be credited to DTC that same day and payments received after such time
shall be credited the following Business Day. 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 2.08 (ii), 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.
(iii) Certificates of which Cede & Co. shall be the Holder shall be
initially issued in the form of one or more separate single Certificates for
each separate class of Certificates identified in the Series Trust Agreement to
be issued hereunder, aggregating in each case to the amount of each separate
stated maturity of the Certificates, or in such other manner as is required by
DTC. Upon initial issuance, the ownership of each such Certificate shall be
registered in the Certificate Register in the
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name of Cede & Co., as nominee for DTC. The Depositor and the Trustee may treat
DTC (or its nominee) as the sole and exclusive owner of each Certificate
registered in its name for the purposes of payment of Interest, Principal and/or
Callable Principal represented thereby, giving any notice permitted or required
to be given to Holders under this Agreement, registering the transfer of such
Certificate, obtaining any consent or other action to be taken by Holders and
for all other purposes whatsoever, and neither the Depositor nor the Trustee
shall be affected by any notice to the contrary. Neither the Depositor nor the
Trustee shall have any responsibility or obligation to any Participant, any
Person claiming a beneficial ownership interest in such Certificate under or
through DTC or any Participant or any other Person that is not shown on the
Certificate Register as being a Holder of such Certificate, with respect to the
accuracy of any records maintained by DTC or any Participant; the payment by DTC
or any Participant of any amount in respect of Principal, Interest and/or
Callable Principal represented by such Certificate; any notice (or the
timeliness thereof) that is permitted or required to be given to Holders of such
Certificate under this Agreement; or any consent given or other action taken by
DTC as the Holder of such Certificate. Upon delivery by DTC to the Trustee of
written notice to the effect that DTC has determined to substitute a new nominee
in place of Cede & Co., and subject to the provisions of section 2.03 hereof
limiting the obligations of the Trustee to register transfers of or to exchange
Certificates, the words "Cede & Co." in this Agreement shall refer to such new
nominee of DTC.
(iv) DTC may determine to discontinue providing its services with
respect to Certificates at any time by giving 90 days prior written notice to
the Depositor and the Trustee and discharging its responsibilities with respect
thereto under applicable law. Following receipt of such notice from DTC, the
Trustee shall promptly notify the Rating Agency. In connection therewith, the
Trustee and the Depositor will cooperate with DTC in taking appropriate action
after reasonable notice (a) to make available one or more separate physical
certificates evidencing the Certificates to any Participant having Certificates
credited to its DTC account or (b) to arrange for another securities depository
to maintain custody of physical certificates evidencing such Certificates. Upon
(1) the resignation of DTC from its functions as depository in accordance
herewith, provided that the Depositor is unable to arrange for another
securities depository to act as successor to DTC, (2) the election by the
Depositor to terminate book-entry registration of the Certificates (which
election shall only be made if the Depositor determines that such election will
not adversely affect the Holders), (3) the delivery of written notice to the
Trustee through DTC, from Holders of Outstanding Certificates representing at
least a majority of the Voting Rights, that such Holders elect to terminate
book-entry registration of the Certificates, (4) a default in payment of any
Interest, Principal or Callable Principal due on the Bonds, which default
remains uncured for 10 days, and the election by the Trustee to terminate
book-entry registration of the Certificates, or (5) the occurrence of an
Available Information Event (provided that the financial statements and other
information about the Issuer of the Bonds referred to in Section 5.15 hereof are
not thereafter available to the Trust), the Depositor shall notify DTC and,
except in the case of item (4) above, the Trustee of such event, whereupon DTC
is required under the Letter of Representations to notify the Participants of
the availability through DTC of physical certificates evidencing the
Certificates. In such event, DTC is required under the Letter of Representations
to promptly deliver to the Trustee the physical certificates evidencing such
Certificates, whereupon the Trustee at the expense of the Depositor shall
deliver physical certificates evidencing the Certificates to any Participant
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having Certificates credited to its account at DTC and the provisions of this
Agreement shall then apply irrespective of this Section 2.08.
(v) In connection with any notice or other communication to be provided
to Holders pursuant to this Agreement by the Trustee with respect to any consent
or other action to be taken by Holders, the Trustee shall establish a record
date for such consent or other action and give DTC 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 6.01 hereof.
(vi) In the event that Bonds are redeemed and Certificates are
correspondingly redeemed and the Certificates are registered in the name of Cede
& Co., as nominee for DTC, the Certificates shall be redeemed and terminated
without action by the Holder thereof, all as provided in the Letter of
Representations.
Section 2.09. Action or Consent of Holders. The Voting Rights on the
Certificates shall be apportioned by the Trustee among the Holders, as of the
applicable record date as determined by the Trustee pursuant to Section 2.08(v)
hereof, of the Outstanding Certificates in proportion to the Accreted Value or,
with respect to Stripped Bond Certificates, Callable Stripped Bond Certificates
and Pooled Certificates, the principal amount, of each class of Certificates,
and within each class, pro rata by aggregate Accreted Value or principal amount,
as applicable. In the event of any action or consent requiring the vote of the
owners of any Bonds at any time when the Certificates are held in the DTC
book-entry form, the Trustee, upon receipt of the Bond proxy, shall notify DTC
(in its capacity as the Holder of the Certificates) of such action. Under
current procedures the Depositor expects that DTC will notify the Participants
who will notify the Beneficial Owners of the Certificates of such an event.
Thereafter, the Trustee shall vote solely in accordance with such proxies and
shall apportion its voting powers on the basis of the votes cast by the Holders,
based upon the direction the Holders have received from the Beneficial Owners.
If the Certificates are not then held by DTC or any other depository, the
Trustee, upon receipt of the Bond proxy, shall notify the Holders directly of
such action and shall vote in the same manner as noted above. The Trustee shall
cast its vote in connection with the foregoing vote on the Bonds in proportion
to the Voting Rights on the Certificates held by the Holders or groups of
Holders directing it, notwithstanding that such Holder or groups of Holders may
give contrary instructions or that such instructions may conflict.
The Trustee shall at no time vote for or consent to any action (i) to
the extent that such vote or consent could reasonably be expected to alter the
status of the Trust as a grantor trust for federal income tax purposes, (ii)
prior to the filing of a bankruptcy petition by or against the Issuer of the
Bonds or the commencement of any other similar proceeding, if such action would
alter the timing or amount of any payment on such Bonds or (iii) prior to the
filing of a bankruptcy petition by or against the Issuer of Bonds, or the
commencement of any other similar proceeding, if such action would result in the
exchange or substitution of any of such outstanding Bonds pursuant to a plan for
the refunding or refinancing of such Bonds. In connection with any vote, the
Trustee may request, as a condition
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precedent to casting any vote, that it be provided with an opinion of Counsel
that the consent or action will not alter the status of the Trust as a grantor
trust for federal income tax purposes, which Opinion of Counsel shall be an
expense of the Holders voting in favor of the proposed action. The Trustee in
requesting such opinion shall inform the Holders of the potential expense of the
Opinion of Counsel.
In no event shall the Depositor be allowed or entitled (other than in
its capacity as a Participant for a Beneficial Owner) to vote, directly or
indirectly, any Certificates.
The Trustee shall also transmit to DTC or, if the Certificates are not
then held by DTC or any other depository, the Holders as provided in Section
9.04 hereof, any communications from the Issuer or from a third party (other
than the Issuer) to the Trustee as bondholder, upon receipt from such Issuer or
third party, respectively, of assurances that the Trustee's reasonable expenses
will be reimbursed by such Issuer or third party. If the Trustee does not
receive such assurances, then the Trustee, at the sole discretion of the
Depositor and at the expense of the Trust, shall transmit or cause to be
transmitted any such communications to DTC or, if the Certificates are not then
held by DTC or any other depository, the Holders as provided in Section 9.04
hereof.
Section 2.10. Transfer of Certificates Held by DTC to Successor
Depository. (a) If the Depositor elects to direct that the Trustee deliver
Certificates with respect to a particular Series Trust Agreement in the name of
and to DTC, as the depository hereunder, or its nominee, said Certificates may
not thereafter be transferred except:
(i) to any successor of DTC or its nominee;
(ii) to any substitute depository not objected to by the Trustee, upon
(1) the resignation of DTC or its successor (or any substitute depository
or its successor) from its functions as depository or (2) a determination
by the Depositor that it is in the best interest of the Depositor (and will
not adversely affect the Holders) or the Holders to remove DTC or its
successor (or any substitute depository or its successor); or
(iii) as provided in Section 2.08(iv) hereof;
provided, that any successor of DTC or substitute depository referred to above
shall be a clearing agency registered with the Commission and shall otherwise be
qualified under any applicable laws to provide the services proposed to be
provided by it.
Section 2.11. Temporary Certificates. The Certificates may be initially
delivered in temporary form exchangeable for definitive Certificates when ready
for delivery, which temporary Certificates shall be printed, lithographed or
typewritten, shall be of such denominations as may be determined by the Trustee,
shall be in fully registered form and shall contain such reference to any of the
provisions hereof as may be appropriate. Every temporary Certificate shall be
executed and delivered by the Trustee upon the same conditions and terms and in
substantially the same manner as definitive certificates. If temporary
Certificates are issued, the Trustee shall execute and deliver definitive
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Certificates without delay, and in that case upon demand of the Holder of any
temporary Certificates such temporary Certificates shall be exchanged without
cost to such Holder for definitive Certificates at the office of the Trustee
upon surrender of such temporary Certificates, and until so exchanged such
temporary Certificates shall be entitled to the same benefit, protection and
security hereunder as the definitive Certificates executed and delivered
hereunder. All temporary Certificates surrendered pursuant to the provisions of
this Section 2.11 shall be canceled by the Trustee, shall not be redelivered and
shall be disposed of pursuant to Section 2.07.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF
CERTIFICATES; DEPOSITOR'S WARRANTIES
Section 3.01. Filing Proofs, Certificates and Other Information. Any
Holder presenting Certificates for surrender or registration of transfer or
exchange may be required to file such proof of residence, or other matters or
information, to execute such certificates and to make such representations and
warranties as the Trustee may reasonably deem necessary or proper. The Trustee
may withhold the delivery or delay the surrender of or registration of transfer
or exchange of any Certificate until such proof or other information is filed,
such certificates are executed or such representations and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Trustee, including any tax or charge required to be withheld from any payment
made to or by the Trustee under the provisions of any applicable law, with
respect to any Certificate or with respect to the Interest, Principal or
Callable Principal (or portions thereof) evidenced by any Certificate, such tax
or governmental charge shall be payable by the Holder of such Certificate and
may be so withheld by the Trustee. The surrender of or registration of transfer
or exchange of any Certificate may be refused until such payment is made.
Section 3.03. Depositor's Warranties. In the case of each delivery of
Bonds to the Trustee, the Depositor shall be deemed thereby to represent and
warrant to the Trustee that the Depositor is duly authorized to so deliver such
Bonds and that immediately prior to the delivery thereof the Depositor owned
such Bonds free and clear of any lien, pledge, encumbrance or other security
interest, and such delivery is irrevocable and free of any continuing claim by
the Depositor, except for the Retained Amount. The Depositor shall further be
deemed by such delivery to represent and warrant to the Trustee that the
prospectus and prospectus supplement prepared by the Depositor with respect to
the Certificates makes such disclosure with respect to the Bonds as is required
by applicable federal and state securities laws. Such representations and
warranties shall survive the delivery of such Bonds and the Certificates in
respect thereof.
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ARTICLE IV
PAYMENT OF INTEREST AND PRINCIPAL; CUSTODY
OF PROCEEDS OF INTEREST AND PRINCIPAL PAYMENTS
Section 4.01. Payment of Interest; Payment of Principal; Mandatory
Exchange of Callable Principal Certificates and Callable Stripped Bond
Certificates. In the case of Bonds held by the Trustee in certificate form, the
Trustee shall present the Bonds to the Issuer, Indenture Trustee or paying agent
therefor, as applicable, for payment of Interest on the Interest Payment Dates
related thereto and all Principal at stated maturity or upon the Redemption Date
therefor, to the extent required under the terms of such Bonds to obtain payment
thereon.
With respect to any Coupon Certificate, on or after the Interest
Payment Date of the Interest evidenced thereby, if the Issuer shall have paid in
full and the Trustee shall have received the interest due on such Interest
Payment Date on the underlying Bonds, the Trustee shall pay to the Holder
thereof upon presentation and surrender of its Certificates, in lawful money of
the United States of America, by check no later than one Business Day after
receipt of funds by the Trustee, the entire amount of such Interest evidenced
thereby, less any taxes or governmental charges required to be withheld from
such payment by the Trustee.
With respect to any Principal Certificate, on or after the stated
maturity date of the Principal evidenced thereby, if the Issuer shall have paid
in full and the Trustee shall have received the amount of such Principal upon
maturity of the underlying Bond or Bonds, the Trustee shall pay to the Holder
thereof upon presentation and surrender of its Certificates, in lawful money of
the United States of America, by check no later than one Business Day after
receipt of funds by the Trustee, the entire amount of such Principal evidenced
thereby, less any taxes or governmental charges required to be withheld from
such payment by the Trustee.
With respect to any Callable Principal Certificate, on or after the
stated maturity date, the redemption date or the Interest Payment Date, as
applicable, of the Callable Principal evidenced thereby, if the Issuer shall
have paid and the Trustee shall have received all or any part of the Callable
Principal due upon maturity or earlier redemption of the underlying Bonds or on
any Interest Payment Date, the Trustee shall pay to the Holder thereof upon
presentation and surrender of its Certificates, in lawful money of the United
States of America, by check no later than one Business Day after receipt of
funds by the Trustee, the entire amount of such Callable Principal so paid and
received or, in the case of a Callable Principal Certificate redeemed in part,
the amount of such Principal so redeemed; in each case less any taxes or
governmental charges required to be withheld from such payment by the Trustee.
Any Callable Principal Certificate which is not redeemed on the First
Call Date shall be terminated and deemed involuntarily surrendered by the Holder
thereof in exchange for a principal amount of the Bonds underlying such Callable
Principal Certificate equal to the face amount of such Callable Principal
Certificate, whether or not such Holder has requested such exchange. No action
by
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such Holder shall be required to effect such termination, which shall be carried
out by the Trustee pursuant to the terms of this Agreement.
With respect to any Stripped Coupon Certificate, on or after the
Interest Payment Date of the Interest evidenced thereby, if the Issuer shall
have paid in full and the Trustee shall have received the interest due on such
Interest Payment Date on the underlying Bonds, the Trustee shall pay to the
Holder thereof upon presentation and surrender of its Certificates, in lawful
money of the United States of America, by check no later than one Business Day
after receipt of funds by the Trustee, the entire amount of such Interest
evidenced thereby, less any taxes or governmental charges required to be
withheld from such payment by the Trustee.
With respect to any Stripped Bond Certificate, on or after the Interest
Payment Date or stated maturity date, as applicable, of the Interest or
Principal evidenced thereby, if the Issuer shall have paid and the Trustee shall
have received the Interest evidenced thereby or all or any part of the principal
amount of the Principal evidenced thereby due upon maturity of the underlying
Bonds, the Trustee shall pay to the Holder thereof (i) with respect to each
Interest Payment Date preceding the maturity date, as of the applicable record
date of the underlying Bonds, and (ii) with respect to the maturity date, upon
presentation of its Certificates, in lawful money of the United States of
America, by check no later than one Business Day after receipt of funds by the
Trustee (in the case of clause (i) above, sent by first-class mail to the
address of the Holder set forth in the Certificate Register), the entire amount
of such Interest and/or Principal; in each case less any taxes or governmental
charges required to be withheld from such payment by the Trustee.
With respect to any Callable Stripped Bond Certificate, on or after the
stated maturity date, the redemption date or the Interest Payment Date, as
applicable, of the Callable Principal evidenced thereby, if the Issuer shall
have paid and the Trustee shall have received the Interest or all or any part of
the Callable Principal evidenced thereby due upon maturity or earlier redemption
of the underlying Bonds or on any Interest Payment Date, the Trustee shall pay
to the Holder thereof (i) with respect to each Interest Payment Date preceding
the maturity date or redemption date, as applicable, as of the applicable record
date of the underlying Bonds, and (ii) with respect to the maturity date or
redemption date, as applicable, upon presentation of its Certificates, in lawful
money of the United States of America, by check no later than one Business Day
after receipt of funds by the Trustee (in the case of clause (i) above, sent by
first-class mail to the address of the Holder set forth in the Certificate
Register), the entire amount of such Holder's allocable portion of the Callable
Principal so received or, in the case of a Callable Stripped Bond Certificate
redeemed in part, the amount so redeemed; in each case less any taxes or
governmental charges required to be withheld from such payment by the Trustee.
Any Callable Stripped Bond Certificate which is not redeemed on the
First Call Date shall be terminated and deemed involuntarily surrendered by the
Holder thereof in exchange for a principal amount of the Bonds underlying such
Callable Stripped Bond Certificate equal to the face amount of such Callable
Stripped Bond Certificate, whether or not such Holder has requested such
exchange. No action by such Holder shall be required to effect such termination,
which shall be carried out by the Trustee pursuant to the terms of this
Agreement.
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With respect to any Pooled Certificate, on or after the stated maturity
date, the redemption date or the Interest Payment Date, as applicable, of the
Interest, Principal or Callable Principal evidenced thereby, if the Issuer shall
have paid and the Trustee shall have received Interest on any of the Bonds in
the Trust evidenced thereby or all or any part of the Principal or Callable
Principal on any of the Bonds in the Trust evidenced thereby due upon maturity
or earlier redemption of such Bonds or on any Interest Payment Date, the Trustee
shall pay to the Holder thereof (i) with respect to each Interest Payment Date
preceding the maturity date or redemption date, as applicable, as of the
applicable record date of the underlying Bonds, and (ii) with respect to the
maturity date or redemption date, as applicable, upon presentation of its
Certificates, in lawful money of the United States of America, by check no later
than one Business Day after receipt of funds by the Trustee (in the case of
clause (i) above, sent by first-class mail to the address of the Holder set
forth in the Certificate Register), the entire amount of such Interest,
Principal or Callable Principal so paid and received, less any Retained Amount,
or, in the case of a Certificate redeemed in part, the amount of such Callable
Principal so redeemed; in each case less any taxes or governmental charges
required to be withheld from such payment by the Trustee.
With respect to any payment of Interest, Principal or Callable
Principal, as applicable, that constitutes a Retained Amount, the Trustee shall
remit such Retained Amount to the Depositor, in immediately available funds,
within one Business Day of receipt by the Trustee from the Issuer.
When making any payment to a Holder of a Certificate or, with respect
to any Retained Amount, to the Depositor, under this Agreement, the Trustee
shall round down such payment to the nearest whole cent.
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 4.01, 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 4.02. Segregation of Moneys Received from Issuers in Respect of
Bonds. All moneys received from the Issuers of Bonds or otherwise by the Trustee
in respect of Bonds evidenced by Certificates issued hereunder shall be held by
it without interest in a segregated trust account (which account shall contain
two subaccounts, one for interest payments on the Bonds and the second for
principal and redemption premium payments on the Bonds) for each issue of Bonds
held in trust until required to be disbursed in accordance with the provisions
of this Agreement or as otherwise required by law and such moneys shall be
segregated by separate recordation on the books and records of the Trustee.
Payments whose character as principal, redemption premium or interest on the
Bonds cannot be determined shall be deposited in the subaccount for principal
until distributed pursuant to Section 5.03(b) hereof.
Section 4.03. Paying Agent. Each Paying Agent other than the Trustee
shall execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee (and if the Trustee acts as Paying Agent, it
hereby so agrees), that such Paying Agent shall:
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(i) hold all sums held by it for the payment of amounts due with
respect to the Bonds in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Trustee notice of any default by the Issuer (or any other
obligor upon the Bonds) of which it has actual knowledge in the making of
any payment required to be made with respect to the Certificates.
ARTICLE V
THE TRUSTEE AND THE DEPOSITOR
Section 5.01. Eligibility of Trustee; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and it shall have a long
term unsecured debt or deposit rating of A-2 or better by Moody's Investors
Service, Inc. and A by Standard & Poor's Ratings Group or the equivalent rating
thereof by the Rating Agency (if other than Moody's Investors Service, Inc., or
Standard & Poor's Ratings Group). The Trustee shall comply with TIA Section
310(b); provided, however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any series trust deposit agreements under which other
securities are outstanding evidencing ownership interests in bonds of the Issuer
of the Bonds if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 5.02. Trustee's Duties on Default; No Liability of the Trustee
or the Depositor on the Bonds. If an event of default on the Bonds has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Agreement and use the same degree of care and skill in their exercise as
a prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
The Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a holder of the Bonds in which the Certificates
evidence an interest. However, neither the Trustee (except as specifically
provided in Section 5.03 or elsewhere 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 Bonds or Certificates.
The sole obligor with respect to any Bond is the Issuer thereof or any
other entity obligated to make payments to or on behalf of the Issuer thereof
(or its trustee or other applicable fiduciary) with respect to such Bond.
Neither the Trustee nor the Depositor shall have any obligation on or with
respect to the Bonds except as provided in this Article V with respect to the
Trustee; and their respective obligations with respect to Certificates shall be
solely as set forth in this Agreement.
If there is an event of default (as defined in the indenture or other
document pursuant to which the Bonds were issued) with respect to any Bond and
such default is known to the Trustee, the Trustee
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shall promptly give notice to DTC or, if the Certificates are not then held by
DTC or any other depository, directly to Holders thereof as provided in Section
9.04 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
(a) the identity of the issue of Bonds, (b) the date and nature of such default,
(c) the face amount of the Interest, Principal or Callable Principal to which
such default relates, (d) the identifying numbers of the class of Certificates,
or any combination, as the case may be, evidencing the Interest, Principal or
Callable Principal (or portions thereof) described above in clause (c), and (e)
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.
Holders of Certificates shall have no recourse against the Depositor or
the Trustee for payment defaults on the Bonds.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee; Distribution of Amounts Received in Respect of Defaulted Bonds.
(a) If:
(i) default is made in the payment of any installment of interest on
any Bond when the same becomes due and payable, and such default continues
unremedied for the period specified in the indenture (as identified in
Exhibit A to the Series Trust Agreement), or, if no such period is
specified, five days, after receipt by the Issuer of notice thereof from
the Trustee or receipt by the 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 Bond when the same becomes due and
payable, and such default continues unremedied for the period specified in
the indenture (as identified in Exhibit A to the Series Trust Agreement),
or, if no such period is specified, thirty (30) days, after receipt by the
Issuer of notice thereof from the Trustee or receipt by the Issuer and the
Trustee of notice thereof from the Holders of Outstanding Certificates
representing at least 25% of the Voting Rights;
and the 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 Bonds for principal and interest, with interest upon the overdue
principal, at the rate borne by the Bonds 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 by the Holders 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
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final decree or settlement, and shall enforce the same against the Issuer or
other obligor upon the Bonds and collect in the manner provided by law out of
the property of the Issuer or other obligor upon the Bonds, wherever situated,
the moneys adjudged or decreed to be payable, unless otherwise directed by
Holders of Outstanding Certificates representing not less than a majority of the
voting Rights. 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 Bonds (other than a scheduled interest payment with respect to an
Interest Payment Date, the scheduled payment of principal on or with respect to
the stated maturity date of the Bonds, or the payment of principal and any
redemption premium on or with respect to the earlier redemption of the Bonds) as
a result of a payment default on the Bonds, 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 9.04 hereof) to DTC or, if the Certificates are
not then held by DTC or any other 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
Accreted Value or, with respect to Stripped Bond Certificates, Callable Stripped
Bond Certificates and Pooled Certificates, the principal amount, of each class
of Outstanding Certificates, and within each class, pro rata by aggregate
Accreted Value or principal amount, as applicable. 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. The Trustee shall not be responsible for
the failure of any Person to maximize the price at which such property may be
sold. No Person effecting a sale on behalf of the Trustee shall be liable
therefor so long as such sale is effected in a commercially reasonable manner.
Section 5.04. Control by Holders. The Holders of Outstanding
Certificates representing a majority of the Voting Rights 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 Sections 2.09 and 5.11, 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.
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Section 5.05. Waiver of Past Defaults.
The Holders of Outstanding Certificates representing not less than a
majority of the Voting Rights 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.
Section 5.06. Maintenance of Offices and Agencies by the Trustee. Until
termination of this Agreement in accordance with its terms, the Trustee shall
maintain (a) facilities in the City of New York for the execution and delivery,
payment, surrender and registration of transfer and exchange of Certificates,
all in accordance with the provisions of this Agreement, and (b) such other
agents, if any, as the Trustee and the Depositor may agree from time to time.
Section 5.07. Prevention of or Delay in Performance by the Trustee or
the Depositor. Neither the Trustee nor the Depositor shall incur any liability
to any Holder of any Certificate, if by reason of any provision of any present
or future law, or regulation thereunder, of any governmental authority, or by
any reason of any act of God or war or other circumstance beyond the control of
the relevant party, the Trustee or the Depositor shall be prevented or forbidden
from doing or performing any act or thing which the terms of this Agreement
provide shall be done or performed; and neither the Trustee nor the Depositor
shall incur any liability to any Holder of a Certificate by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Agreement.
Section 5.08. Liability of the Trustee and the Depositor. (a) Neither
the Trustee nor the Depositor assumes any obligation or shall be subject to any
liability under this Agreement to Holders of Certificates, other than liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, in the performance of such duties as are specifically set
forth in this Agreement or the TIA; further provided, that:
(i) the Trustee shall not be liable except for the performance of such
duties as are specifically set out in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the
Trustee;
(ii) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in the
absence of bad faith on the part of the Trustee, upon certificates or
opinions conforming to the requirements of this Agreement (but the Trustee
shall examine the evidence furnished to it pursuant to TIA Section 314 to
determine whether or not such evidence conforms to the requirements of this
Agreement);
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(iii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iv) to the extent that the Holders of Outstanding Certificates
representing not less than a majority of the Voting Rights direct the
Trustee with respect to the time, method and place of conducting any
Proceeding for any remedy available to the Trustee with respect to an
Issuer Payment Default, the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with such
direction.
Neither DTC nor any registrar with which Bonds are maintained as
book-entry credits shall be deemed agents of the Trustee. The Trustee may own
and deal (i) in bonds of the same issue and maturity as the Bonds and (ii) in
Certificates.
The Trustee shall be under no liability to any party hereto, or to any
Holder, by reason of any failure on the part of the Depositor or any maker,
guarantor, endorser or other signatory of any document or instrument, including
any Bond, or any other Person to perform such Person's obligations under any
such document or instrument.
The Trustee shall not be responsible for the sufficiency or accuracy,
the form or the execution, validity, value or genuineness of any document or
property received or held by it hereunder, including without limitation any
Bonds, or the authority of the Depositor in executing this Agreement.
The Trustee assumes no responsibility for the correctness of the
recitals to the Certificates or to any document issued in connection with the
sale of the Certificates, other than its signature under the Certificates.
ANY ACTION OR PROCEEDING ALLEGING ANY BREACH BY THE TRUSTEE OF ITS
DUTIES UNDER THIS AGREEMENT SHALL BE PROSECUTED ONLY IN A STATE OR FEDERAL COURT
LOCATED IN THE STATE OF NEW YORK, COUNTY OF NEW YORK. THE TRUSTEE SHALL HAVE THE
RIGHT AT ANY TIME TO SEEK INSTRUCTIONS FROM ANY COURT OF COMPETENT JURISDICTION.
The Trustee shall be deemed to have exercised reasonable care in the
custody and preservation of the Bonds in its possession if the Bonds are held in
the manner specified in the Officer's Certificate of the Trustee and are
accorded treatment substantially equal to that which a prudent Person accords
its own property.
The Trustee shall at all times maintain a fidelity bond in reasonable
form and amount to protect against loss due to dishonest or fraudulent action by
its employees in connection with its obligations hereunder.
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The Trustee may consult with and rely upon the calculations of an
advisor (which may be the Depositor) in connection with any calculation of
Accreted Value to the extent such amount must be determined in order for the
Trustee to carry out its duties hereunder.
The Trustee may consult with counsel of its selection, and the advice
of such counsel or any Opinion of Counsel selected by the Trustee with due care
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in reliance thereon.
The Trustee may request and rely upon and shall be protected in acting
or refraining from action upon any resolution, certificate signed by an
authorized officer, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, facsimile transmission, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Trust Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto, at the request, order or
direction of any of the Holders, pursuant to the provisions of this Series Trust
Agreement, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby.
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 any misconduct or
negligence of any such agents or attorneys selected with due care by it.
(b) Any application by the Trustee for written instructions from the
Depositor may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Series Trust Agreement
and the date on and/or after which such action shall be taken or such omission
shall be effective, if, but only if, the obligations of the Trustee with respect
to such proposed action or omission, in the view of the Trustee, are not set
forth reasonably clearly in this Series Trust Agreement. The Trustee shall not
be liable for any action taken by, or omission of, the Trustee in accordance
with a proposal included in such application on or after the date specified in
such application (which date shall not be less than ten (10) Business Days after
the date a Responsible Officer of the Depositor actually receives such
application, unless any such Responsible Officer shall have consented in writing
to any earlier date) unless, prior to taking any such action (or the effective
date in the case of an omission), the Trustee shall have received written
instructions in response to such application specifying the action to be taken
or omitted; provided, however, that this provision shall not protect the Trustee
from liability for any action or omission constituting willful misconduct, bad
faith or negligence.
Section 5.09. Obligation of the Depositor. (a) The Depositor shall:
(i) on behalf of the Trust, prepare and file with the Commission,
following the execution thereof by the Trustee if so requested by the
Depositor, and file with the Trustee, within 15 days
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after the Depositor on behalf of the Trust is required to file the same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe), 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. A copy of
each such report shall be provided to the Trustee at least 10 Business Days
prior to the date required for filing. The names of such reports and the
dates on which they are required to be filed with the Commission shall be
specified to the Trustee by the Depositor within 180 days after the Closing
Date;
(ii) file with the Trustee, 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) supply to the Trustee (and the Trustee shall 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 pursuant to clauses (i) and
(ii) of this Section 5.09(a), if any, as may be required by rules and
regulations prescribed from time to time by the Commission; and
(iv) after an Available Information Event, on behalf of the Trust,
prepare and file with the Commission, following the execution thereof by
the Trustee if so requested by the Depositor, and file with the Trustee,
within 15 days after the Depositor on behalf of the Trust is required to
file the same with the Commission, reports of the kind referred to in
clause (i) of this Section 5.09(a) with respect to the Issuer of the Bonds,
to the extent such reports are then available to the Depositor, for as long
as the Depositor on behalf of the Trust is required to file such reports
under the Exchange Act. Such reports shall include quarterly and annual
financial statements and other information of the type required to be filed
on Form 8-K under the Exchange Act with respect to the Issuer of the Bonds.
A copy of each such report shall be provided to the Trustee at least 10
Business Days prior to the date required for filing. If such reports and
information are not available to the Depositor at a time when such reports
and information are required to be filed with the Commission by the
Depositor on behalf of the Trust, the Depositor shall cause the removal of
the Certificates from the DTC book-entry system as set forth in Section
2.08(iv)(5) of this Agreement and shall notify the Issuer that the Holders
of Certificates constitute record holders of the Bonds for purposes of the
Exchange Act.
(b) The Depositor shall deliver to the Trustee, not less often than
annually, an Officer's Certificate signed by an Authorized 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 Trust
Agreement for such year, stating that:
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(i) a review of the activities of the Depositor during such fiscal year
and of performance under this Agreement has been made under such Authorized
Officer's supervision; and
(ii) to the best of such Authorized 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 Authorized 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 Trust Agreement provides for the pledge
of the Bonds 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 Trust Agreement provides for the pledge
of the Bonds 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 Trust Agreement provides for the pledge
of the Bonds 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
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of such Person the proposed release will not impair the security under this
Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an
Officer's Certificate of the Depositor certifying or stating the opinion of
any signatory thereof as to the matters described in clause (i) above, the
Depositor shall also furnish to the Trustee an Independent Certificate as
to the same matters if the fair value of the property or securities and of
all other property or securities released from the lien of this Agreement
since the commencement of the then current calendar year, as set forth in
the certificates required by clause (i) above and this clause (ii), equals
10% or more of the 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 is
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
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secured the Certificates from the lien of this Agreement and release to the
Depositor or any other Person entitled thereto any funds then included in
the trust estate.
(f) Upon any application or request by the Depositor to the Trustee to
take any action under the provisions of this Agreement, which action is subject
to the satisfaction of a condition precedent (including any covenants compliance
with which constitutes a condition precedent), the Depositor shall furnish to
the Trustee: (i) an Officer's Certificate stating that all conditions precedent,
if any, provided for in this Agreement relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of the TIA, except that,
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Agreement, no
additional certificate or opinion need be furnished. Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Agreement shall include:
(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 5.10. 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).
Section 5.11. Resignation and Removal of the Trustee; Appointment of
Successor Trustee. The Trustee may at any time resign as Trustee hereunder by
written notice of its election so to do, delivered to the Depositor and the
Rating Agency as provided in Section 9.04 hereof, and such resignation shall
take effect upon the appointment of a successor Trustee and its acceptance of
such appointment as hereinafter provided. The Depositor may at any time
(including such time as the Trustee fails to comply with Section 5.01) remove
the Trustee as Trustee hereunder by written notice of its election to do so,
delivered to the Trustee and the Rating Agency as provided in Section 9.04
hereof, and such removal shall take effect upon the appointment of a successor
Trustee and its acceptance of such appointment as provided in the third
succeeding paragraph; provided, however, that
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in the event of such removal, the Depositor shall negotiate in good faith with
the Trustee in order to agree regarding payment of the termination costs of the
Trustee resulting from such removal. Upon the designation of a successor Trustee
following either resignation by or removal of the Trustee, the Trustee shall
deliver to the successor Trustee all records relating to the Certificates in the
form and manner then maintained by the Trustee, which shall include a hard copy
thereof upon request of the successor Trustee.
If at any time the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or the Trustee shall fail to comply with Section 5.
01, then any Holder of a Certificate with respect to a particular issue of Bonds
which has been such a Holder for at least six (6) months or the Holders of
Outstanding Certificates representing ten percent (10%) of the Voting Rights for
the Outstanding Certificates of a series which is outstanding at such time may,
on behalf of himself, herself or themselves and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to the Bonds evidenced by such Certificates and the appointment of a
successor Trustee.
In the event the Trustee resigns or is removed, the Trustee shall
reimburse the Depositor for any fees or charges previously paid to the Trustee
in respect of duties not yet performed under this Agreement which remain to be
performed by a successor Trustee and the Trustee shall promptly notify the
Rating Agency of its resignation or removal and any successor Trustee shall
promptly notify the Rating Agency of its appointment as provided in Section 9.04
hereof.
In case at any time the Trustee acting hereunder notifies the Depositor
that it elects to resign or the Depositor notifies the Trustee that it elects to
remove the Trustee as Trustee, the Depositor shall, within ninety (90) days
after the delivery of the notice of resignation or removal, appoint a successor
Trustee, which shall be a bank with trust powers or a trust company having its
principal office in the United States of America and having a combined capital
and surplus of at least $50,000,000 and which is rated at least investment grade
by the Rating Agency. If no successor Trustee has been appointed as successor
Trustee within ninety (90) days after the Trustee has given written notice of
its election to resign or the Depositor has given written notice to the Trustee
of its election to remove the Trustee, as the case may be, the Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee. Every successor Trustee shall execute and deliver to its predecessor
and to the Depositor an instrument in writing accepting its appointment
hereunder, and thereupon such successor Trustee, without any further act or
deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor and for all purposes shall be the Trustee under
this Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Depositor, shall execute and deliver an instrument
transferring to such successor all rights, obligations and powers of such
predecessor hereunder, and shall duly assign, transfer and deliver all right,
title and interest in the Bonds and parts thereof to such successor. Any
successor Trustee shall promptly give notice of its appointment to the Holders
of Certificates for which it is successor Trustee as provided in Section 9.04
hereof.
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Any corporation into or with which the Trustee may be merged,
consolidated or converted shall be the successor of such Trustee without the
execution or filing of any document or any further act.
Section 5.12. Indemnification by the Depositor. The Depositor agrees to
indemnify the Trustee and any of its agents, officers, directors or employees
for, and to hold them harmless against, any loss, liability or expense arising,
directly or indirectly, out of, relating to, or in connection with the
acceptance, administration or performance of their duties, or the duties of the
Trustee, as well as the costs and expenses of defending themselves against any
action, suit, or other proceeding involving any claim or liability arising,
directly or indirectly, out of, relating to or in connection with, this
Agreement, the Initial Trust Agreement or the exercise or performance of any of
their powers or duties hereunder or thereunder, other than any loss, liability
or expense arising out of (i) negligence, willful misconduct or bad faith on the
part of the Trustee or any of its agents, officers, directors or employees, or
(ii) any charges, fees or reimbursements that are expressly required by this
Agreement to be paid by the Holders or for which the Holders are expressly
required by this Agreement or have elected pursuant to the terms of this
Agreement to provide security or indemnity to the Trustee. Failure of the
Depositor to fulfill its obligations hereunder shall not relieve the Trustee
from fulfilling its duties under this Agreement.
Any Person that proposes to assert the right to be indemnified under
this Section 5.12 (any such Person, an "Indemnified Party") shall, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim is to be made against the Depositor under this Section
5.12, notify the Depositor of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify the Depositor shall not
relieve the Depositor from any liability that it may have to such Indemnified
Party under the foregoing provisions of this Section 5.12 unless, and only to
the extent that, such omission results in the forfeiture of rights or defenses
by the Depositor. If any such action is brought against an Indemnified Party and
it notifies the Depositor of its commencement, the Depositor shall be entitled
to participate in and, to the extent that it elects by delivering written notice
to the Indemnified Party promptly after receiving notice of the commencement of
the action from the Indemnified Party, to assume the defense of the action, with
counsel satisfactory to the Indemnified Party, and after notice from the
Depositor to the Indemnified Party of its election to assume the defense, the
Depositor shall not be liable to the Indemnified Party for any fees,
disbursements or other charges of counsel except as provided below and except
for the reasonable costs of investigation subsequently incurred by the
Indemnified Party in connection with the defense. The Indemnified Party shall
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel shall be at the expense of the
Indemnified Party unless (1) the employment of counsel by the Indemnified Party
has been authorized in writing by the Depositor, (2) the Indemnified Party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other Indemnified Parties that are different from or
in addition to those available to the Depositor, (3) a conflict or potential
conflict exists (based on advice of counsel to the Indemnified Party) between
the Indemnified Party and the Depositor (in which case the Depositor shall not
have the right to direct the defense of such action on behalf of the Indemnified
Party), or (4) the Depositor has not in fact employed counsel to assume the
defense of such action within 15 Business Days after receiving notice of the
commencement of the action, in each of which cases the reasonable
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fees, disbursements and other charges of counsel shall be at the expense of the
Depositor. It is understood that the Depositor shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all Persons
entitled to indemnification hereunder. All such fees, disbursements and other
charges shall be reimbursed by the Depositor promptly as they are incurred. The
Depositor shall not be liable for any settlement of any action or claim effected
without its written consent (which consent shall not be unreasonably withheld).
The Depositor shall not, without the prior written consent of each Indemnified
Party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 5.12 (whether or not any Indemnified Party is a
party thereto), unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Party from all liability arising or
that may arise out of such claim, action or proceeding. Notwithstanding any
other provision of this Section 5.12, if at any time an Indemnified Party shall
have requested the Depositor to reimburse the Indemnified Party for fees and
expenses of counsel, the Depositor agrees that it shall be liable for any
settlement effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Depositor of the aforesaid
request, (ii) the Depositor shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) the Depositor shall not have reimbursed the Indemnified Party in
accordance with such request prior to the date of such settlement.
The term "liability," as used in this Section 5.12, shall include any
losses, claims, damages, expenses (including without limitation the Trustee's
costs and expenses in defending itself against any losses, claims or
investigations of any nature whatsoever to the extent the Trustee is not
reimbursed as contemplated in this Section 5.12) or other liabilities, joint or
several, arising for any reason (including without limitation violation of
applicable laws or trademarks or service marks).
The obligations of the Depositor under this Section 5.12 (i) shall be
in addition to any liability which the Depositor may otherwise have, (ii) shall
extend, upon the same terms and conditions, to each officer and director of the
Trustee and to each Person, if any, who controls the Trustee within the meaning
of the Securities Exchange Act of 1934, as amended and (iii) shall survive the
termination of this Agreement and the resignation or removal of the Trustee.
Section 5.13. Undertaking for Costs. 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 5.13 shall not apply to:
(a) any Proceeding instituted by the Trustee;
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(b) 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
(c) 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 5.14. Charges and Expenses. Except as otherwise provided in
this Agreement, (i) no current or future charges, fees and expenses of the
Trustee shall be payable by or withheld from any Person other than the
Depositor, except for any taxes and other governmental charges, and (ii) in full
payment and satisfaction of all other charges and expenses of the Trustee
(including, in each case, fees and expenses of counsel) incidental to the
performance of its obligations hereunder, the Depositor shall pay the Trustee an
amount determined in accordance with a separate agreement between it and the
Trustee. The Trustee shall not be released from any of its duties hereunder as a
result of the failure of the Depositor to pay such amount.
Section 5.15. Trustee Reports. So long as the Certificates are held in
DTC's book-entry only system, annual unaudited reports setting forth the amounts
of payments on the Certificates, and whether such amounts are principal or
interest shall be prepared by the Trustee and sent to DTC. To the extent the
Depositor fails to provide the Trustee with a copy of any report referred to in
Section 5.09(a)(i) or (iv) herein prior to the 10th Business Day preceding the
applicable filing date therefor as required by such provisions, the Trustee
shall request the Depositor to prepare and file such report and, if the
Depositor fails to do so, shall cause such report to be prepared and filed and
the Depositor shall reimburse the Trustee for its reasonable expenses incurred
in connection therewith. Any such expenses not reimbursed by the Depositor shall
be borne by the Holders.
ARTICLE VI
HOLDERS' LISTS AND REPORTS
Section 6.01. 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 Interest Payment Date or Redemption 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 underlying Bonds; provided, however, that so long as the Trustee
maintains the Certificate Register, no such list shall be required to be
furnished.
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Section 6.02. 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 6.01 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 6.01 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 6.03. Reports by Trustee. If required by TIA Section 313(a),
within 60 days after December 31 of each year, the Trustee shall mail to (i)
each Holder as required by TIA Section 313(c) and (ii) the Depositor, a brief
report dated as of such date that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section 313(b). A copy of any report delivered
pursuant to this Section 6.03 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 VII
AMENDMENT AND TERMINATION
Section 7.01. Amendment. The form of the Certificates and any
provisions of this Agreement may at any time and from time to time be amended by
agreement between the Depositor and the Trustee in any respect which they may
deem necessary or desirable, provided that in no event shall any amendment defer
or alter the maturity of a Certificate, or in other manner adversely affect the
rights to payment of a Holder of a Certificate or otherwise materially prejudice
any substantial existing right of the Holders of the Certificates; and provided
further that at the time of any amendment the Trustee shall be provided evidence
that the rating on the Certificates by the Rating Agency will not be lowered or
withdrawn as a result of the amendment. Every Holder of a Certificate at the
time any such amendment so becomes effective shall be deemed to be continuing to
hold such Certificate, to consent and agree to such amendment and to be bound by
this Agreement as amended thereby. Prior to entering into any amendment to the
form of the Certificates or this Agreement, the Trustee shall be entitled to
receive an Opinion of Counsel to the effect that such amendments are authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendments have been satisfied. The costs of
providing such Opinion of Counsel shall be borne by the Holders requesting that
the Trustee execute and deliver such amendment. The Trustee shall notify the
Holders of the estimated expense of any such Opinion of Counsel.
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Section 7.02. Termination. This Agreement shall terminate one year
following the payment upon maturity (or any earlier redemption) by the
respective Issuers of the entire principal amount (and any redemption premium)
of the Bonds or, in the event of a default on the Bonds, one year following
receipt by the Holders of all amounts to which the Holders are entitled pursuant
to Section 5.03(b) hereof. If any Certificates shall remain outstanding after
the date of termination of this Agreement, the Trustee shall not perform any
further acts under this Agreement, except that the Trustee shall hold the
proceeds of any payment, without liability for interest, for the pro rata
benefit of the Holders of Certificates which have not theretofore been
surrendered for payment unless otherwise required by applicable law. Upon the
termination of this Agreement, the Depositor shall be discharged from all
obligations under this Agreement except for its obligations to the Trustee under
Sections 5.14 and 5.12 hereof.
ARTICLE VIII
REDEMPTION OF CERTIFICATES
Section 8.01. Redemption. If the Bonds are redeemed in whole or in part
on or after the First Call Date, upon actual receipt by the Trustee of notice of
such redemption, the Trustee shall, in accordance with the provisions of this
Article VIII, redeem a principal amount of Pooled Certificates, Callable
Principal Certificates or Callable Stripped Bond Certificates, as applicable,
equal to the principal amount of the Bonds of such issue held in trust hereunder
so redeemed, and if the Bonds are redeemed in part, then the Trustee shall
select the Certificates to be redeemed by lot in such manner as the Trustee
deems fair and appropriate. In the absence of the actual notice described in
this Section 8.01, the Trustee shall be under no obligation to effect the
redemption required by this Section 8.01. Upon redemption of any Certificate,
the Holder shall have no right to receive payments on any Interest maturing
after the Redemption Date.
Section 8.02. Notice of Redemption. Notice of redemption shall be given
by the Trustee to each Holder of any Certificate to be redeemed as provided in
Section 9.04 hereof within thirty (30) days after notice of redemption of the
underlying Bonds has been given by the Issuer, trustee or paying agent of or for
the Bonds, as the case may be (but not less than fifteen days prior to the
redemption date); provided, however, that the Trustee shall not be required to
give any notice of redemption less than five (5) Business Days after the date it
receives notice of such redemption. All notices of redemption shall be mailed to
each Holder at such Holder's last address on the Certificate Register and shall
state the Redemption Date, the date the Certificates are to be redeemed, the
amount payable on such date, the place at which Certificates are to be
surrendered for payment and that interest on amounts redeemed shall cease to
accrue on and after the Redemption Date.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Exclusive Benefit of Parties and Holders of Certificates;
Effective Date. This Agreement is for the exclusive benefit of the parties
hereto, their respective successors hereunder, and Holders of Certificates, and
shall not be deemed to give any legal or equitable right, remedy or claim to any
other Person whatsoever. The Holders from time to time shall be beneficiaries of
this Agreement and shall be bound by all the terms and conditions hereof and of
the Certificates by acceptance of delivery thereof. This Agreement shall become
effective as to the Trustee and the Depositor for each series of Certificates
upon the execution of the Series Trust Agreement for such series by the Trustee
and Depositor and the receipt by the Trustee of the Bonds deposited therewith.
Section 9.02. Invalidity of Provisions. In case any one or more of the
provisions contained in this Agreement or contained in the Certificates should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
Section 9.03. 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.
Section 9.04. Notices. Any and all notices to be given to the Depositor
shall be deemed to have been duly given if personally delivered or sent by mail,
first class, post prepaid, or telegram or telex or facsimile confirmed by letter
addressed to the Depositor at the Depositor Address set forth in the Series
Trust Agreement relating to Certificates evidencing Bonds deposited by the
Depositor, or at any other place as the Depositor shall notify the Trustee in
writing from time to time.
Any and all notices to be given to the Trustee shall be deemed to have
been duly given if personally delivered or sent by mail, first class, post
prepaid, or facsimile confirmed by letter addressed to the Trustee at the
Trustee Address set forth for notice to the Trustee in the Series Trust
Agreement, or to such other place which the Trustee may have designated in
writing to the Depositor.
Any and all notices to be given to the Rating Agency shall be deemed to
have been duly given if personally delivered or sent by mail, first class, post
prepaid, or facsimile confirmed by letter addressed to the Rating Agency at the
Rating Agency Address set forth in the Series Trust Agreement,
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or to such other place which the Rating Agency may have designated in writing to
the Depositor and the Trustee.
All other notices to be given to any Holder shall be deemed to have
been duly given if given by mail, first-class postage prepaid, to each Holder at
such Holder's address as it appears in the Certificate Register. Neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
All notices specified to be given "promptly" hereunder shall be given
no later than the second Business Day after the event which results in the
requirement that the notice be delivered.
Section 9.05. Governing Law; Forum. This Agreement and the Certificates
shall be governed by, and construed in accordance with, the laws of the State of
New York. Any action or proceeding alleging a breach of an obligation under this
Agreement shall be prosecuted only in a state or federal court located in the
State of New York, County of New York.
Section 9.06. Headings. The headings of articles and sections in this
Agreement have been inserted for convenience only and are not to be regarded as
a part of this Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Certificates.
Section 9.07. Covenant of Depositor and Trustee Not to Place Trust in
Bankruptcy. Each party hereto covenants that it shall not, until at least one
year and one day after the termination of this Agreement, take any action to
file an involuntary bankruptcy petition against the Trust or cause the Trust to
file a voluntary bankruptcy petition.
Section 9.08. Trust Not to Merge. For so long as any Certificate
remains outstanding, the Trust shall not merge or consolidate with or into any
Person, or transfer all or substantially all of its assets to any Person.
Section 9.09. Incurrence of Indebtedness. For so long as any
Certificate remains outstanding, the Trust shall not create, assume, incur,
suffer to exist or otherwise become or remain liable in respect of any
indebtedness.
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EXHIBIT C
TO SERIES TRUST
AGREEMENT
TRUST CERTIFICATES
issued by
CABCO TRUST FOR J. C. PENNEY DEBENTURES
POOLED CERTIFICATE
(principal amount $25 per certificate)
For a Pro Rata Share of All Interest Payments on the
Underlying Bonds and All Principal Payments and
Redemption Premium, If Any, Due on the Stated Maturity
Date Indicated Below or on any Previous Call for Redemption on
J. C. Penney Company, Inc. 7 5/8% Debentures Due 2097
Certificate No. 1 Face Amount: $52,650,000
Number of Certificates: 2,106,000
CUSIP No.: 126797 20 8 Stated Maturity Date: March 1, 2097
CEDE & CO., or registered assigns, is the owner of the face amount set
forth above of certificates evidencing 100% beneficial ownership of CABCO Trust
for J. C. Penney Debentures (the "Issuer"), whose sole asset consists of
$52,650,000 of J. C. Penney Company, Inc. 7 5/8% Debentures Due 2097 (the
"Bonds"). The sole obligor with respect to such Bonds is the issuer of the Bonds
named above (the "Underlying Issuer") or any other entities obligated to make
payments to or on behalf of the Underlying Issuer (or their trustees or other
applicable fiduciaries) with respect to the Bonds. The Bonds are being held in a
trust account by United States Trust Company of New York, as Trustee, pursuant
to the terms of a Amended and Restated Trust Agreement dated as of March 25,
1999 (the "Agreement"), including the Standard Terms and Provisions of Series
Trust Agreement appended thereto and all other exhibits, schedules, appendices,
supplements and amendments thereto, between Corporate Asset Backed Corporation,
as Depositor, and the Trustee, pursuant to which this and other certificates
(the "Certificates"), evidencing the right to receive all interest and principal
payments, including the redemption premiums, if any, but excluding the Retained
Amount (as defined in the Agreement), if any, on the Bonds, are executed and
delivered by the Trustee. This Certificate is subject to the provisions of and
is entitled to the benefits of the Agreement, which may be inspected by the
holder hereof at the Designated Office in New York City of the Trustee. The
owner of this Certificate, by its acceptance hereof, agrees to be bound by the
terms and conditions of the Agreement. Capitalized terms used but not defined
herein shall have the meanings set forth in the Agreement.
<PAGE> 47
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Bonds will be held in an account of the Trustee at DTC in
book-entry credit form. The Trustee will pay to the Holder of this Certificate
its pro rata share of all amounts received as payments on the Bonds, promptly
after receipt, less any amounts required to be withheld from or by the Trustee
pursuant to applicable law, in lawful money of the United States of America, (i)
if the Holder is The Depository Trust Company ("DTC") or its nominee or any
successor depository or nominee thereof, by wire transfer of immediately
available funds, and (ii) if the Holder is any other person, by check in
immediately available funds sent by first-class mail to the address of the
Holder hereof set forth in the Certificate Register.
In the event the Trustee receives money or other property in connection
with the payment of principal (or actual notice that such moneys or other
property will be received), other than in connection with a redemption, prior to
the Stated Maturity Date, the Trustee shall promptly give notice, as provided in
the Agreement, to the Holder. Such notice shall state that, not later than
ninety (90) days after the receipt of such moneys or other property, the Trustee
shall distribute such moneys or other property pro rata to the Holders of
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register, upon surrender of this Certificate for registration of transfer at the
corporate trust office of the Trustee at 114 West 47th Street in New York, New
York 10036-1532, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by, the Holder hereof
or such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same series having the Stated Maturity Date set forth on
the face hereof, of Authorized Denominations of $25 or greater multiples of $25,
and having the same aggregate face amount, will be issued to the designated
transferee or transferees. Under the Agreement, the Trustee is required, when
making any payment to a Holder, to round down such payment to the nearest whole
cent.
The Certificates are issuable only in registered form in Authorized
Denominations. As provided in the Agreement and subject to certain limitations
therein set forth, such Certificates are exchangeable for Certificates of the
same series, having the same Stated Maturity Date and of a like aggregate face
amount, as requested by the Holder surrendering the same.
C-2
<PAGE> 48
For any such registration of transfer or exchange, the Trustee may
require payment of the then applicable service charge and of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Certificate for registration of
transfer, the Trustee and any agent of the Trustee may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes,
whether or not this Certificate be overdue, and neither the Trustee nor any such
agent shall be affected by notice to the contrary.
C-3
<PAGE> 49
This Certificate shall not be valid or become obligatory for any
purpose unless and until duly executed by the Trustee by manual signature.
Dated: March 25, 1999
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: _____________________________________
Authorized Signatory
Authentication
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:______________________________________
Authorized Signatory
C-4
<PAGE> 50
TRANSFER FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
________________________________________________________________________________
attorney to transfer the within Certificate on the books kept for the
registration thereof, with full power of substitution in the premises.
Optional:
[Insert wire transfer instructions for transferee.] Neither the transferor nor
the Trustee shall have any responsibility for the accuracy of such wire transfer
instructions, if provided.
Dated:___________
_________________________________________
(Signature)
NOTE: Signature must conform in every particular
to the name in which this security is registered,
without any alteration or change whatsoever.
Signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Trustee, which requirements include
membership or participation in STAMP or such
other "signature guarantee program" as may be
determined by the Trustee in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934.
C-5
<PAGE> 51
EXHIBIT D
TO SERIES TRUST
AGREEMENT
OFFICER'S CERTIFICATE
OF UNITED STATES TRUST COMPANY OF NEW YORK
The undersigned, being a Senior Vice President of United States Trust
Company of New York (the "Bank"), does hereby certify and agree on behalf of the
Bank, for the benefit of PaineWebber Incorporated, Corporate Asset Backed
Corporation ("CABCO") and the beneficial owners of the Certificates (as defined
below), that:
1. The Amended and Restated Trust Agreement dated as of March 25, 1999,
including the Standard Terms and Provisions of Series Trust Agreement (the
"Trust Agreement"), between CABCO, as Depositor (the "Depositor"), and United
States Trust Company of New York, as Trustee (the "Trustee"), has been duly
executed and delivered in the name of and on behalf of the Bank.
2. Pursuant to the provisions of Section 2.01 of the Trust Agreement, the
Trustee has issued $52,650,000 face amount of Trust Certificates (the
"Certificates").
3. The Bank is a state chartered bank and trust company organized under the
laws of the State of New York whose deposits are insured by the FDIC, and has
the power to act as trustee with respect to the Certificates.
4. Immediately prior to the transfer of any of the J. C. Penney Company,
Inc. 7 5/8% Debentures due 2097 (the "Bonds") to the Trustee pursuant to the
Trust Agreement, the Trustee did not have record or beneficial ownership of such
Bonds.
5. By means of separate recordation upon the books of the Trustee, or by
physical segregation, if appropriate, the Bonds will always be segregated and
kept separate from the assets of the Bank and from all other trust or fiduciary
accounts, and will always be specifically identified as property held subject to
a trust. The Trust Agreement will always be maintained as an official record in
the books and records of the Trustee. The Trustee will always hold the Bonds as
required by the Trust Agreement, will always keep its trust records separate and
distinct from its other records, will always ensure its trust records are
complete, will always comply with all applicable laws, regulations, and rules
relating to the custody of assets held in a trust relationship, and will always
take whatever steps are necessary to ensure that, should the superintendent of
banks for the State of New York (the "Superintendent") take possession of the
Trustee, or a receiver or liquidator for the Trustee be appointed, at such time
the Bonds would be identifiable as property held subject to the trust
relationship by the Trust Agreement. At all times that the Bonds are credited to
an account maintained on behalf of the Trustee at The Depository Trust Company
of New York, the Bank will reflect on its records that the Bonds are held in a
trust account subject to the Trust Agreement, which account will contain no
property of the Trustee in its individual capacity.
D-1
<PAGE> 52
6. At no time will the Bank receive a loan or other credit from a third
person because of such third party's reliance upon the Bank's apparent ownership
of the beneficial interests in the Bonds.
7. Each person who, on behalf of the Bank, executed the Trust Agreement was
at the date thereof and is now duly authorized as a signatory of the Bank and
duly authorized to perform such acts at the respective times of such acts and
the signatures of such persons appearing on such documents are their genuine
signatures.
8. The Trust Agreement has been duly and validly authorized, executed and
delivered by the Bank and is enforceable against the Bank in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
[SIGNATURE PAGE FOLLOWS]
D-2
<PAGE> 53
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
duly executed.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By________________________________
Name: Thomas Musarra
Title: Senior Vice President
Dated: March 25, 1999
D-3
<PAGE> 1
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
CHICAGO TELEPHONE 212 906 2000 WASHINGTON, D.C.
______ FACSIMILE 212 906 2021 ______
DALLAS LONDON
______ FOUNDED 1866 ______
LOS ANGELES SINGAPORE
______
TOKYO
EXHIBIT 8.1
March 25, 1999
Corporate Asset Backed Corporation
c/o PaineWebber Incorporated
1285 Avenue of the Americas, 18th Floor
New York, New York 10019
Ladies and Gentlemen:
We have advised Corporate Asset Backed Corporation (the "Registrant") with
respect to certain federal income tax considerations in connection with the
issuance by CABCO Trust for J. C. Penney Debentures (the "Trust") of 2,106,000
Trust Certificates, principal amount $25 per certificate (the "Certificates"),
issued pursuant to the Amended and Restated Trust Agreement, dated as of March
25, 1999, including the Standard Terms and Provisions of Series Trust Deposit
Agreement incorporated therein by reference (the "Trust Agreement"), between the
Depositor and United States Trust Company of New York, as Trustee (in such
capacity, the "Trustee"). Such advice conforms to the description of selected
federal income tax consequences to holders of the Certificates that appear under
the heading "Certain Federal Income Tax Considerations" in the prospectus and
the prospectus supplement (collectively, the "Prospectus"), each dated March 18,
1999, forming a part of Post-Effective Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 33-91744) filed by the Registrant with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act") on May 9, 1995 (the "Registration Statement). Such description does
not purport to discuss all possible income tax ramifications of the proposed
issuance, but with respect to those tax consequences which are discussed, in our
opinion the description is accurate in all material respects.
This opinion is based on the facts and circumstances set forth in the
Prospectus and in the other documents reviewed by us.
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 Prospectus 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
1
<PAGE> 2
SIDLEY & AUSTIN NEW YORK
Corporate Asset Backed Corporation
March 25, 1999
Page 2
the Commission issued thereunder, with respect to any part of the Registration
Statement, including this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Sidley & Austin
SIDLEY & AUSTIN
2
