STRUCTURED ASSET TRUST UNIT REPACKAGINGS
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STANDARD TERMS FOR TRUST AGREEMENTS
MSDW Structured Asset Corp.
(as Depositor)
and
Chase Bank of Texas, National Association
(as Trustee)
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions; Construction
SECTION 1.01. Definitions.....................................1
SECTION 1.02. Rules of Construction..........................12
SECTION 1.03. Article and Section References.................13
ARTICLE II
Declaration of Trust; Entry into Swap Agreement;
Issuance of Units
SECTION 2.01. Creation and Declaration of Trust;
Assignment of Debt Securities13
SECTION 2.02. Entry into Swap Agreement and Distribution
Agreement.....................................14
SECTION 2.03. Acceptance by Trustee..........................14
SECTION 2.04. Representations and Warranties of the
Depositor.....................................14
SECTION 2.05. Breach of Representation or Warranty...........15
SECTION 2.06. Agreement to Authenticate and Deliver Units....16
ARTICLE III
Trust Powers; Administration of the Trust Property
SECTION 3.01. Trust Property.................................16
SECTION 3.02. Administration of the Trust....................16
SECTION 3.03. Collection of Certain Debt Security Payments...18
SECTION 3.04. Sale...........................................18
SECTION 3.05. Unit Account...................................18
SECTION 3.06. Investment of Funds in the Accounts............19
SECTION 3.07 Retained Interest..............................20
SECTION 3.08. Access to Certain Documentation................20
ARTICLE IV
Distributions and Reports to Unitholders
SECTION 4.01. Distributions..................................20
SECTION 4.02. Reports to Unitholders.........................20
SECTION 4.03. Calculation of Pass Through Rates..............22
SECTION 4.04. Compliance with Tax Reporting and
Withholding Requirements......................23
SECTION 4.05. Preservation of Information, Communications
to Holders....................................23
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ARTICLE V
The Units
SECTION 5.01. The Units......................................23
SECTION 5.02. Execution, Authentication and Delivery.........24
SECTION 5.03. Registration; Registration of Transfer
and Exchange..................................25
SECTION 5.04. Mutilated, Destroyed, Lost and Stolen Units....26
SECTION 5.05. Distributions in Respect of Units..............27
SECTION 5.06. Persons Deemed Owners..........................27
SECTION 5.07. Cancellation...................................28
SECTION 5.08. Currency of Distributions in Respect of
Units; Redenomination.........................28
SECTION 5.09. Appointment of Paying Agent....................31
SECTION 5.10. Authenticating Agent...........................31
SECTION 5.11. Issuance and Transfer Restrictions.............32
SECTION 5.12. Exchangeable Series............................35
SECTION 5.13. Limitation on Issuance of Bearer Units.........37
SECTION 5.14. Callable Units.................................37
SECTION 5.15. Delivery of Information........................38
ARTICLE VI
The Depositor
SECTION 6.01. Liability of the Depositor.....................38
SECTION 6.02. Limitation on Liability of the Depositor.......38
SECTION 6.03. Depositor May Purchase Units...................39
SECTION 6.04. Preparation and Filing of Exchange Act
Reports; Obligations of the Depositor.........39
SECTION 6.05. Preferential Collection of Claims Against
Depositor.....................................40
ARTICLE VII
Rights of Unitholders
SECTION 7.01. Voting Rights with Respect to Debt Securities..40
SECTION 7.02. Amendments and Waivers Under Swap Agreement
and Guarantee.................................41
ARTICLE VIII
Default on Debt Securities and Permitted Investments
SECTION 8.01. Realization Upon Default.......................41
ARTICLE IX
Trust Wind-Up Events
SECTION 9.01. Trust Wind-Up Events...........................42
SECTION 9.02. Liquidation Events.............................43
SECTION 9.03. Trust Property Made Available..................43
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SECTION 9.04. Limitation on Notice Requirement...............45
SECTION 9.05. Expense Event..................................46
SECTION 9.06. Special Depositor Wind-Up Event................46
ARTICLE X
Concerning the Trustee
SECTION 10.01. Duties of Trustee..............................47
SECTION 10.02. Certain Matters Affecting the Trustee..........48
SECTION 10.03. Limitation on Liability of Trustee.............49
SECTION 10.04. Trustee May Own Units..........................50
SECTION 10.05. Trustee Fees and Expenses; Limited
Indemnification...............................50
SECTION 10.06. Eligibility Requirements for Trustee...........51
SECTION 10.07. Resignation or Removal of the Trustee..........51
SECTION 10.08. Successor Trustee..............................52
SECTION 10.09. Merger or Consolidation of Trustee.............52
SECTION 10.10. Appointment of Co-Trustee......................53
SECTION 10.11. Appointment of Office or Agency................54
SECTION 10.12. Representations and Warranties of Trustee......54
SECTION 10.13. Limitation of Powers and Duties................55
SECTION 10.14. Non-Petition...................................55
ARTICLE XI
Termination
SECTION 11.01. Termination of the Trust.......................56
ARTICLE XII
Miscellaneous Terms
SECTION 12.01. Amendment of Trust Agreement...................56
SECTION 12.02. Counterparts...................................57
SECTION 12.03. Limitation on Rights of Unitholders............57
SECTION 12.04. Governing Law..................................57
SECTION 12.05. Notices........................................58
SECTION 12.06. Severability of Terms..........................58
SECTION 12.07. Notice to Rating Agencies......................58
SECTION 12.08. Perfection of Swap Counterparty Security
Interest......................................59
SECTION 12.09. No Recourse....................................59
SECTION 12.10. Conflict With Trust Indenture Act..............59
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EXHIBIT A TRUST AGREEMENT AND TERMS SCHEDULE
EXHIBIT B1 FORM OF REGISTERED UNIT
EXHIBIT B2 FORM OF BEARER UNIT
iv
STRUCTURED ASSET TRUST UNIT REPACKAGINGS
STANDARD TERMS FOR
TRUST AGREEMENTS
Chase Bank of Texas, National Association, as Trustee
MSDW Structured Asset Corp., as Depositor
These Standard Terms for Trust Agreements, dated September
__, 1998 ("Standard Terms"), may be incorporated by reference in
one or more Trust Agreements (each a "Trust Agreement") relating
to a particular series of Structured Asset Trust Unit
Repackagings described in the Prospectus dated __________ and the
applicable Prospectus Supplement. Any such Trust Agreement may be
in the form of Exhibit A hereto or such other form as MSDW
Structured Asset Corp. (the "Depositor") and the Trustee may
approve, such approval to be evidenced by their execution
thereof. All terms defined herein shall have meanings solely with
respect to the particular Trust Agreement in which these Standard
Terms are incorporated. Incorporation of these Standard Terms
into a Trust Agreement is for convenience only to avoid the
necessity of physically including the Standard Terms in such
Trust Agreement, and each trust created by a Trust Agreement
shall be a legally separate and distinct trust from any other
trust created by any other Trust Agreement into which these
Standard Terms may also be incorporated. These Standard Terms
shall by themselves be of no force and effect, and shall only
have effect as and to the extent incorporated by reference in a
Trust Agreement. Execution hereof by the Trustee and the
Depositor is for purposes of identification only and the absence
of such execution shall not affect the validity of any Trust
Agreement or these Standard Terms to the extent incorporated
therein. The Trust Agreement into which these Standard Terms are
incorporated by reference, including the Terms Schedule attached
thereto and made a part thereof and these Standard Terms so
incorporated by reference therein, as amended, modified or
supplemented from time to time, shall together constitute a
single Trust Agreement and are referred to herein as the "Trust
Agreement". In the event of a conflict between any Trust
Agreement, including the Terms Schedule attached thereto, and
these Standard Terms, the Trust Agreement and Terms Schedule
shall control.
ARTICLE I
Definitions; Construction
SECTION 1.01. Definitions. Except as otherwise specified
herein or as the context may otherwise require, the following
terms have the respective meanings set forth below for all
purposes of these Standard Terms:
"Account": As defined in Section 3.05.
"Affected Debt Securities": As defined in Section 9.02.
"Affected Transaction": As defined in the Swap Agreement.
"Affiliate": With respect to any specified Person, any
other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
Person. For the purposes of this definition, "control", when used
with respect to any specified Person, means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Alternative ERISA Restrictions": The restrictions on
transfer of Units set forth in Section 5.11(d)(1).
"Authenticating Agent": As defined in Section 5.10.
"Authorized Newspaper": As defined in Section 12.05.
"Available Funds": With respect to any Distribution Date,
(i) all amounts received by the Trustee on or with respect to the
Debt Securities or other Trust Property plus (ii) all investment
income from Permitted Investments plus (iii) all Swap Amounts, if
any, paid to the Trustee by the Swap Counterparty pursuant to the
Swap Agreement, or by the Guarantor pursuant to the Guarantee,
minus (iv) all amounts paid or payable to the Swap Counterparty
by the Trustee pursuant to the Swap Agreement, minus (v) any
amounts reimbursable to the Trustee under Section 10.02(ix), in
each case on deposit in the Unit Account, and available for
distribution, on such Distribution Date.
"Bearer Unit": Any Unit (with or without coupons), title of
which passes by delivery only, but exclusive of any coupons.
"Benefit Plan": The meaning specified in Section 5.11(d).
"Book-Entry Unit": A Unit represented by a Global Security.
"Business Day": As specified in the Terms Schedule.
"Calculation Agent": As specified in the Terms Schedule, if
any.
"Call Date": As defined in Section 5.14.
"Call Option": As specified in the Terms Schedule.
"Call Price": As defined in Section 5.14.
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"Callable Series": A Series so designated in the Terms
Schedule which grants one or more specified persons the right to
purchase all or a portion of the Units of any given Series.
"CEDEL": Cedel Bank, S.A.
"Certificate": A certificate in the form attached as
Exhibit B1, evidencing a Registered Unit or B2, evidencing a
Bearer Unit.
"Certificate of Non-U.S. Beneficial Ownership": As defined
in Section 5.13.
"Class": A separately denominated class of the Units of any
Series, entitled to specified distributions of the Trust
Property.
"Closing Date": As specified in the Terms Schedule.
"Code": The Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Commission": The Securities and Exchange Commission, or
any successor agency.
"Concentrated Debt Security": Any Debt Security that on the
Closing Date constitutes 10% or more of the total Debt Securities
held by the Trust with respect to a Series of Units.
"Corporate Trust Office": The Trustee's offices at 600
Travis Street, 9th Floor, Chase Tower, Houston, Texas 77002,
Texas Commerce Trust Company of New York, 55 Water Street, North
Building, Room 234, Windows 20 and 21, New York, New York 10041
or such other addresses as the Trustee may designate from time to
time by notice to the Unitholders, the Depositor, the Swap
Counterparty and the Guarantor.
"Credit Support": With respect to any Series (or any Class
within such Series), any combination of insurance policies,
letters of credit, reserve accounts and other types of rights or
assets designed to support or ensure the servicing and
distribution of amounts due in respect of the Trust Property,
which in each case is specified as such in the applicable Terms
Schedule.
"Currency": Dollars or Foreign Currency.
"Debt Securities": As specified in the Terms Schedule.
"Debt Security Accrual Period": The Initial Debt Security
Accrual Period and each period from and including a Debt Security
Payment Date to but excluding the next succeeding Debt Security
Payment Date.
"Debt Security Agreement": The indenture, fiscal agency
agreement, or other agreement with respect to a Debt Security
which sets forth the covenants and agreements of the Debt
Security Issuer in connection with issuance of the Debt Security.
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"Debt Security Amount": With respect to each Debt Security
Payment Date, an amount equal to the accrued interest and/or
other payment obligation calculated with reference to the
applicable Debt Security for the immediately preceding applicable
Debt Security Accrual Period at the applicable Debt Security
Rate.
"Debt Security Default": Unless otherwise specified in the
Terms Schedule, (i) the acceleration of the maturity of the Debt
Securities under the Debt Securities and/or the Debt Security
Agreement, as applicable, whether by declaration of the Holders
thereof, the Debt Security Trustee or otherwise, (ii) the failure
to pay an installment of principal of, or any amount of interest
due on, the Debt Securities after the due date, and after the
expiration of any applicable grace period or cure period or (iii)
the occurrence of any event of default relating to bankruptcy or
insolvency of the Debt Security Issuer under the Debt Securities
and/or the Debt Security Agreement, as applicable. A Debt
Security Default will be deemed to have occurred for all purposes
of the Trust Agreement notwithstanding any rescission or
annulment of any such acceleration or any subsequent payment
(after the default and after any applicable grace period) of such
overdue principal or interest.
"Debt Security Agreement": As specified in the Terms
Schedule, if applicable.
"Debt Security Issuer": As specified in the Terms Schedule.
"Debt Security Payment Date": As specified in the Terms
Schedule.
"Debt Security Rate": As specified in the Terms Schedule.
"Debt Security Trustee": As specified in the Terms
Schedule, if applicable.
"Definitive Registered Unit": A Registered Unit in
definitive, certificated form without coupons attached.
"Depositary": DTC or, if so provided in the Terms Schedule,
Euroclear or CEDEL; or another depositary specified in the Terms
Schedule.
"Depositor": MSDW Structured Asset Corp., a Delaware
corporation, and any of its successors or assigns.
"Depositor Order" or "Depositor Requests": A written order
or request, respectively, signed in the name of the Depositor by
any of its Chief Executive Officer, Chief Financial Officer,
Chief Operating Officer, President, a Vice President, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee.
"Distribution Agreement": The agreement between each
Distribution Participant and the Trust relating to the
distribution of the Units.
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"Distribution Date": As specified in the Terms Schedule.
"Distribution Participant": Each Person acting as
underwriter, dealer, placement agent or any similar capacity in
connection with the initial distribution of the Units.
"Dollar" or "$" or "USD": Such currency of the United
States as at the time of payment is legal tender for the payment
of public and private debts.
"DTC": The Depository Trust Company, a limited purpose
trust company organized under the laws of the State of New York,
its successors and assigns.
"D&P": Duff & Phelps Credit Rating Co.
"Early Termination Date": As defined in the Swap Agreement.
"Eligible Account": A non-interest bearing account, held in
either the United States or the United Kingdom, in the name of
the Trustee for the benefit of the Trust that is either (i) a
segregated account or segregated accounts maintained with a
Federal or State chartered depository institution or trust
company the short-term and long-term unsecured debt obligations
of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company,
the short-term and long-term unsecured debt obligations of such
holding company) are rated P-i and Aaa by Moody's, A-1+ and AAA
by S&P, and, if rated by D&P, D-1+ and AAA by D&P at the time any
amounts are held on deposit therein including when such amounts
are initially deposited and all times subsequent or (ii) a
segregated trust account or segregated accounts maintained as a
segregated account or as segregated accounts and held by the
Trustee in its Corporate Trust Office in trust for the benefit of
the Unitholders.
"ERISA": The Employee Retirement Income Security Act of
1974, as amended, including any successor or amendatory statutes.
"ERISA Benefit Plan": As specified in Section 5.11(d).
"Euro": As defined in Section 5.08.
"Euroclear": Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System
"Event of Default": As specified in the Swap Agreement.
"Excess Expense Event": As defined in Section 9.05(a).
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
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"Exchange Rate Agent" Unless otherwise specified in the
Terms Schedule, Morgan Stanley & Co. Incorporated ("Morgan
Stanley") or an Affiliate of Morgan Stanley designated by Morgan
Stanley.
"Executive Officer": With respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of
such corporation; with respect to any partnership, any general
partner thereof.
"Extraordinary Trust Expense": As defined in Section
10.05(b).
"Foreign Currency": A currency issued by the government of
any country other than the United States or a composite currency
the value of which is determined by reference to the values of
the currencies of any group of countries.
"Global Security": A Certificate in global form issued to
the Depositary and (in the case of a Registered Unit) registered
in the name of the Depositary or its nominee.
"Guarantee": The Guarantee (if any) identified in the Terms
Schedule of the obligations of the Swap Counterparty under the
Swap Agreement. If the Terms Schedule does not specify a
Guarantee, references to the Guarantee and the Guarantor herein
shall be deemed deleted.
"Guarantor": The Guarantor who issues and is identified in
the Guarantee (if a Guarantee is identified in the Terms
Schedule), and, if a successor Person shall have become the
Guarantor pursuant to the Guarantee, "Guarantor" shall mean such
successor Person.
"Independent": When used with respect to any specified
Person means that the Person (1) is in fact independent of the
Depositor, the Swap Counterparty and the Guarantor and of any
Affiliate of any of the foregoing Persons, (2) does not have any
direct or indirect financial interest in the Depositor, the Swap
Counterparty or the Guarantor, or in any Affiliate of any of the
foregoing Persons which is material with respect to such Person
and (3) is not connected with the Depositor, the Swap
Counterparty or the Guarantor, as an officer, employee, promoter,
partner, director or person performing similar functions.
"Initial Debt Security Accrual Period": The period from and
including the Closing Date to but excluding the next Debt
Security Payment Date.
"Initial Swap Rate Accrual Period": The period from and
including the Closing Date to but excluding the next Swap Payment
Date.
"Insolvency Law": As defined in Section 10.14.
"Investment Company Act": The United States Investment
Company Act of 1940, as amended, and applicable rules thereunder.
6
"Liquidation Event": As defined in Section 9.02.
"Maximum Reimbursable Amount": As specified in the Terms
Schedule (or any other amount specified by the party agreeing to
indemnify the Trustee).
"Moody's": Moody's Investors Service, Inc.
"Notional Amount": A notional amount specified in the Terms
Schedule with respect to any Class of Units with respect to which
distributions of interest or other distributions are determined
but which does not represent a Unit Principal Balance.
"Officers' Certificate": A certificate signed by any one
(or, if specified in the Trust Agreement, more than one)
Executive Officer of the applicable Person, and delivered to the
Trustee.
"Opinion of Counsel": A written opinion of counsel, who
may, except as otherwise expressly provided in the Trust
Agreement, be counsel for the Depositor, acceptable to the
Trustee.
"Optional Exchange Date": As defined in Section 5.12.
"Outstanding": As of any date of determination, all Units
theretofore authenticated and delivered under the Trust
Agreement, except:
(i) Units theretofore canceled by the Unit Registrar
or delivered to the Trustee for cancellation; and
(ii) Units in exchange for or in lieu of which other
Units have been authenticated and delivered pursuant to the
Trust Agreement, unless proof satisfactory to the Trustee
is presented that any such Units are held by a bona fide
purchaser in whose hands such Units represent interests in
the Trust.
"Pass Through Rate": As specified in the Terms Schedule.
"Paying Agent": As defined in Section 5.09.
"Permitted Investments": All investments made by the
Trustee pursuant to Section 3.05 in any one or more of the
following; provided, however, that the total return specified by
the terms of each such obligation or security is at least equal
to the purchase price thereof; and provided, further, that each
such obligation or security shall be held in the name of the
Trustee on behalf of the Trust:
(i) direct obligations of, and obligations fully
guaranteed by, the United States, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage
Association, the Federal Farm Credit System or any agency
or instrumentality of the
7
United States the obligations of which are explicitly
backed by the full faith and credit of the United States of
America; provided that obligations of, or guaranteed by,
the Federal Home Loan Mortgage Corporation, the Federal
National Mortgage Association or the Federal Farm Credit
System shall be Permitted Investments only if, at the time,
and during the course, of investment, it has at least the
credit rating of P-1 or Aaa by Moody's, A-1+ or AAA by S&P,
and, if rated by D&P, D-1+ or AAA by D&P;
(ii) demand and time deposits in, certificates of
deposit of, or banker' acceptances issued by any depository
institution or trust company (including the Trustee or any
agent of the Trustee acting in their respective commercial
capacities) incorporated under the laws of the United
States or any State and subject to supervision and
examination by Federal and/or State banking authorities so
long as the commercial paper and/or the short-term debt
obligations of such depository institution or trust company
at the time of, and during the course of, such investment
or contractual commitment providing for such investment
have at least the credit rating of P-1 or Aaa by Moody's,
A-l+ or AAA by S&P, and, if rated by D&P, D-1+ or AAA by
D&P (or, in the case of a depository institution which is
the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of
such holding company have a credit rating of P-i or Aaa by
Moody's, A-1+ or AAA by S&P, and, if rated by D&P, D- l+ or
AAA by D&P;
(iii) commercial paper having a maturity of not more
than 180 days and having at the time, and during the
course, of such investment at least the credit rating of
P-1 by Moody's, A-1+ by S&P, and, if rated by D&P, D-l+ by
D&P; and
(iv) repurchase agreements with respect to (a) any
security described in clause (i) above or (b) any other
security issued or guaranteed by an agency or
instrumentality of the United States with an entity having
the credit rating of P-1 or Aaa by Moody's, A-1+ or AAA by
S&P, and, if rated by D&P, D-1+ or AAA by D&P. Copies of
any repurchase agreement entered into will be delivered to
the Rating Agencies, if any.
In no event shall a Permitted Investment at any time
constitute (a) a swap agreement as defined in the United States
Bankruptcy Code, 11 U.S.C. S 101 et seq., (b) an interest-only or
principal-only security or (c) a liability of the Trust in excess
of the principal amount invested by the Trustee. Permitted
Investments shall include, without limitation, those investments
for which the Trustee or an Affiliate of the Trustee provides
services.
"Person": Any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Predecessor Unit": With respect to any particular Unit,
every previous Unit evidencing all or a portion of the same
interest as that evidenced by such particular Unit; and, for the
purpose of this definition, any Unit authenticated and delivered
under Section 5.04 in lieu of a
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lost, destroyed or stolen Unit shall be deemed to evidence the
same interest as the lost, destroyed or stolen Unit.
"Proceeding": Any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agencies": As specified in the Terms Schedule.
"Rating Agencies Condition": A condition, with respect to
any action or occurrence of which the Rating Agencies shall have
been given 10 days (or such shorter period acceptable to the
Rating Agencies) prior notice, the violation of which would cause
the Rating Agencies to reduce or withdraw the then current rating
of any Units.
"Record Date": As specified in the Terms Schedule.
"Redenomination Date": As defined in Section 5.08.
"Registered Unit": Any Unit in registered form ownership of
which is evidenced by the Unit Register.
"Responsible Officer": With respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee,
including any 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' knowledge of and
familiarity with the particular subject.
"Retained Interest": If applicable, with respect to any
Debt Security or other Trust Property, an ownership interest
therein and a right to a portion of the payments thereon by the
obligor thereof, as specified in the Terms Schedule, held by the
Person so specified in such Terms Schedule.
"Scheduled Final Distribution Date": As specified in the
Terms Schedule.
"Securities Act": The Securities Act of 1933, as amended.
"Selling Agent": Unless otherwise specified in the Terms
Schedule, Morgan Stanley or any Affiliate of Morgan Stanley
designated by it.
"Series": All of the Units issued by a particular Trust.
"Special Depositor Wind-up Event": As defined in Section
9.06.
"Specified Currency": Unless otherwise specified in the
Terms Schedule, United States Dollars.
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"State": Any one of the 50 states of the United States or
the District of Columbia.
"S&P": Standard & Poor's Ratings Service, a division of The
McGraw-Hill Companies, Inc.
"Swap Agreement": The ISDA Master Agreement (including the
Schedule thereto and Confirmation or Confirmations thereunder and
any ISDA Credit Support Annex forming a part thereof), if any, to
which the Trust is a party identified in the Terms Schedule. In
the event that the Trust shall enter into more than one ISDA
Master Agreement, "Swap Agreement" shall mean each such ISDA
Master Agreement specified in the Terms Schedule.
"Swap Amount": With respect to each Swap Payment Date, an
amount, payable by, or on behalf of, the Swap Counterparty, equal
to the accrued interest or other payment obligation calculated
with reference to the Swap Notional Amount for the immediately
preceding Swap Rate Accrual Period at the Swap Rate.
"Swap Calculation Agent": The "Calculation Agent" as
defined in the Swap Agreement.
"Swap Counterparty": Morgan Stanley Capital Services, Inc.,
unless another Person is identified in the Terms Schedule as the
counterparty of the Trust under the Swap Agreement; unless a
successor Person shall have become the Swap Counterparty pursuant
to the applicable terms of the Swap Agreement, whether by
assignment or otherwise, and thereafter "Swap Counterparty" shall
mean such Person. In the event that the Trust shall enter into
more than one Swap Agreement, "Swap Counterparty" shall mean each
counterparty of the Trust specified in the Terms Schedule.
"Swap Default": The occurrence of an "Event of Default" (as
defined in the Swap Agreement) under the Swap Agreement.
"Swap Notional Amount": As specified in the Terms Schedule.
"Swap Payment Date": As specified in the Terms Schedule.
"Swap Rate": As specified in the Terms Schedule.
"Swap Rate Accrual Period": The Initial Swap Rate Accrual
Period and each period from and including a Swap Payment Date to
but excluding the next succeeding Swap Payment Date.
"Termination Event": As defined in the Swap Agreement.
"Termination Payment": Any amounts payable under the Swap
Agreement in accordance with its terms, whether to or by the
Trust, as the case may be, in consequence of an early termination
of one or more Transactions under the Swap Agreement.
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"Terms Schedule": The schedule or schedules (which may be
in the form of Schedules I, II and III attached to Exhibit A
hereto) which contains information with respect to the particular
terms of the Units, as well as the Swap Agreement, the Debt
Securities and any other Trust Property.
"TIA": The Trust Indenture Act of 1939, as amended.
"Transaction": As defined in the Swap Agreement.
"Transfer": To sell, convey, assign, transfer, create,
grant a lien upon and a security interest in and right of setoff
against, deposit, set over, contribute and confirm to the Trustee
pursuant to the Trust Agreement; and the terms "Transferred" and
"Transferring" have the meanings correlative to the foregoing. A
Transfer of any Debt Securities or of any other instrument shall
include all rights, powers and options (but none of the
obligations) of the Transferring party thereunder, including the
first priority and continuing right to claim for, collect,
receive and give receipt for principal, premium, if any, and
interest payments in respect of such Debt Securities and all
other moneys payable thereunder, to give and receive notices and
other communications, to make waivers or other agreements, to
exercise all rights and options, to bring Proceedings in the name
of the Transferring party or otherwise, and generally to do and
receive anything that the Transferring party is or may be
entitled to do or receive thereunder or with respect thereto.
"Treaty": As defined in Section 5.08.
"Trigger Amount": As specified in the Terms Schedule.
"Trust": The trust created by the Trust Agreement.
"Trust Agreement": As defined in the preamble hereto.
"Trust Property": As defined in Section 3.01.
"Trust Wind-up Event": As defined in Section 9.01.
"Trustee": Chase Bank of Texas, National Association, a
national banking association, or any co-trustee appointed
pursuant to Section 10.10, until a successor Person shall have
become the Trustee pursuant to the applicable terms of the Trust
Agreement, and thereafter "Trustee" shall mean such successor
Person.
"Trustee Fee Letter": A letter agreement between the
Trustee and the Depositor dated on or before the Closing Date
setting forth the fees and expenses of the Trust and the Trustee
which are subject to reimbursement by the Depositor.
"Trustee Fees": The amount or amounts set forth in the
Trustee Fee Letter.
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"UCC": The Uniform Commercial Code as in effect in the
relevant jurisdiction or, with respect to the State of Louisiana,
the equivalent body of statutory and common law.
"Unit Account": As defined in Section 3.04.
"Unit Principal Balance": With respect to a Unit that is
Outstanding, as determined at any time, the maximum amount that
the Holder thereof is entitled to receive as distributions
allocable to principal payments on the Debt Securities.
"Unit Register" and "Unit Registrar": As respectively
defined in Section 5.03.
"Unitholder" and "Holder": In the case of Registered Units,
the Person in whose name a Unit is registered in the Unit
Register on the applicable Record Date, and in the case of Bearer
Units, the bearer of such Unit.
"Units": The securities authorized by, and authenticated
and delivered under, the Trust Agreement and evidenced by a
certificate in the form or forms attached hereto as Exhibit B.
"United States": The United States of America (including
the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"U.S. Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political
subdivision thereof, an estate the income of which is subject to
United States federal income taxation regardless of its source or
a trust if (i) a U.S. court is able to exercise primary
supervision over the trust's administration and (ii) one or more
U.S. persons have the authority to control all of the trust's
substantial decisions.
Certain additional defined terms have the meanings assigned
thereto in other terms hereof.
SECTION 1.02. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally
accepted accounting principles as in effect in the United
States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and
other words of similar import refer to the Trust Agreement
as a whole and not to any particular Article, section or
other subdivision;
(v) "including" means including without limitations;
and
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(vi) words in the singular include the plural and
words in the plural include the singular.
SECTION 1.03. Article and Section References. All article
and section references used in the Trust Agreement, unless
otherwise provided, are to articles and sections in the Trust
Agreement. Any reference to "this Section" appearing within a
particular paragraph of a section is a reference to such section
as a whole.
ARTICLE II
Declaration of Trust; Entry into Swap Agreement;
Issuance of Units
SECTION 2.01. Creation and Declaration of Trust; Assignment
of Debt Securities. (a) The Depositor, concurrently with the
execution and delivery of the Trust Agreement, Transfers to the
Trustee, on behalf and for the benefit of the Unitholders and
without recourse, all the right, title and interest of the
Depositor, including any security interest therein, in, to and
under (i) the Debt Securities, (ii) the Unit Account, including
all income from the investment of funds in the Unit Account,
(iii) all payments on or under and all proceeds of any of the
foregoing (including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, causes of action, rights to
payment of any and every kind and other forms of obligations,
receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any
of the foregoing) and (iv) all other assets included or to be
included in the Trust Property; in each case except for any
specified Retained Interest.
(b) In connection with the Transfer referred to in the
preceding paragraph, the Depositor shall, not later than the
Closing Date, (i) deposit the Debt Securities with the Trustee by
physical delivery of such Debt Securities, duly endorsed, to the
Trustee or cause the Debt Securities to be registered by
book-entry in the name of the Trustee provided that the
book-entry depositary will be an agency of the United States, DTC
or another book-entry institution acceptable to the Depositor and
(ii) with respect to each such Debt Security, deliver or cause to
be delivered to the Trustee all documents necessary to transfer
such Debt Security to the Trustee.
(c) The Guarantor shall deliver the Guarantee to the
Trustee for the benefit of the Unitholders.
(d) The Transfer of the Debt Securities by the Depositor
accomplished by the Trust Agreement is absolute (other than with
respect to any Retained Interest) and is intended by the parties
thereto as a sale as further provided in Section 3.03.
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SECTION 2.02. Entry into Swap Agreement and Distribution
Agreement. Concurrently with the execution of the Trust
Agreement, the Trust shall (i) execute and deliver the Swap
Agreement and each Transaction thereunder, if any, (ii) accept
the Guarantee and (iii) enter into any Distribution Agreement
with each Distribution Participant. It shall be a condition to
the effectiveness of the Trust Agreement that the Swap Agreement
be effective as of the date of the Trust Agreement. The Trustee
shall, on behalf of the Trust, perform the obligations of the
Trust under the Swap Agreement in accordance with its terms and
shall make demands under the Guarantee immediately upon obtaining
notice of a payment default under the Swap Agreement by the Swap
Counterparty. The Trustee and the Depositor agree, and each
Unitholder by acquiring its Units shall be deemed to agree, that
the Swap Agreement does not represent an ownership interest in
the Trust or its assets and that none of them shall treat the
Swap Agreement as an ownership interest for the Trust for any
purpose. Except as expressly set forth in this Trust Agreement
and in the Swap Agreement, the receipt by the Trustee of the Debt
Securities and the execution by the Trustee of the Swap Agreement
shall not constitute and is not intended to result in an
assumption by the Trustee or any Unitholder of any obligation of
the issuer of the Debt Securities or the Swap Counterparty or any
other Person in connection with the Debt Securities or the Swap
Agreement or under any agreements or instruments relating to any
of them.
SECTION 2.03. Acceptance by Trustee. The Trustee will
acknowledge receipt by it of (i) the Debt Securities and the
related documents referred to in Section 2.01, now existing or
hereafter acquired, (ii) the Swap Agreement, (ii) the Guarantee
and (iv) the documents specified in the Swap Agreement (in Part 3
of the Schedule to the 1992 Master Agreement), and declares that
it will hold such assets and all other assets comprising the
Trust Property in trust, for the exclusive use and benefit of all
present and future Unitholders and for the purposes and subject
to the terms and conditions set forth in the Trust Agreement,
including the Trustee's obligations, as and when they may arise,
(I) to pay any amount due from the Trust under the Swap
Agreement, which obligations shall be and hereby are designated
to be secured, under the terms of the Swap Agreement, by a pledge
of all of the Trust Property, (II) to pay Extraordinary Trust
Expenses and (III) to make distributions to the Unitholders in
accordance with Section 4.01.
SECTION 2.04. Representations and Warranties of the
Depositor. The Depositor represents and warrants to the Trustee
that as of the Closing Date or as of such other date otherwise
specifically provided in the Trust Agreement:
(i) the Depositor is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware;
(ii) to the Depositor' knowledge after the inquiry,
there are not any liens or encumbrances on the Debt
Securities immediately prior to the time of Transfer except
those created by the Trust Agreement;
(iii) the execution and delivery of the Trust
Agreement by the Depositor and its performance of and
compliance with the terms thereof will not violate the
Depositor' articles of incorporation or By-laws or
constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under,
or result in the breach or
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acceleration of, any material contract, agreement or other
instrument to which the Depositor is a party or by which
the Depositor or any of its assets is bound;
(iv) to the Depositor' knowledge after due inquiry,
the Depositor has the full power and authority to enter
into and consummate all transactions contemplated by the
Trust Agreement, has duly authorized the execution,
delivery and performance of the Trust Agreement and has
duly executed and delivered the Trust Agreement. The Trust
Agreement, upon its execution and delivery by the Depositor
and assuming due authorization, execution and delivery by
the Trustee, will constitute a valid, legal and binding
obligation of the Depositor, enforceable against it in
accordance with the terms thereof, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally,
and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or
at law); and
(v) to the Depositor' knowledge after due inquiry, the
Depositor is not in violation, and the execution and
delivery of the Trust Agreement by the Depositor and its
performance and compliance with the terms of the Trust
Agreement will not constitute a violation, of any order
decree of any court or any order or regulation of any
Federal, State, municipal or governmental agency having
jurisdiction over the Depositor or its properties, which
violation would reasonably be expected to have a material
and adverse effect on the duties and obligations of the
Depositor under the Trust Agreement.
It is understood and agreed that the representations and
warranties of the Depositor set forth in this Section shall
survive delivery of the respective documents to the Trustee and
shall inure to the benefit of the Trustee on behalf of the
Unitholders notwithstanding any restrictive or qualified
endorsement or assignment. Upon discovery by any of the
Depositor, the Guarantor, or the Trustee of a breach of any of
the foregoing representations and warranties which materially and
adversely affects the interests of the Unitholders, the party
discovering such breach shall give prompt written notice thereof
to the other parties.
SECTION 2.05. Breach of Representation or Warranty. Upon
the earlier of discovery by the Depositor or receipt of notice by
the Depositor of a breach of any representation or warranty of
the Depositor set forth in Section 2.04 that materially and
adversely affects the rights of the Unitholders to receive
distributions under the Trust Agreement when due and payable, the
Depositor shall notify the Rating Agencies of such breach. The
Depositor shall cure such breach in all material respects within
two Business Days of the earlier of discovery by the Depositor or
receipt of notice by the Depositor of such breach.
SECTION 2.06. Agreement to Authenticate and Deliver Units.
The Trustee agrees and acknowledges that it will, concurrently
with the Transfer to and receipt by it of the Debt Securities and
the Guarantee and delivery to it by the Depositor of the executed
Trust Agreement and by the Swap Counterparty of the executed Swap
Agreement, cause to be executed, authenticated and delivered to
or upon the order of the Depositor, in exchange for the Debt
Securities and such other assets constituting the Trust Property,
Units duly executed and
15
authenticated by or on behalf of the Trustee in authorized
denominations evidencing ownership of the entire Trust Property,
all in accordance with the terms and subject to the conditions of
Section 5.02.
ARTICLE III
Trust Powers; Administration of the Trust Property
SECTION 3.01. Trust Property. (a) The "Trust Property" with
respect to a Trust will consist of: (i) the related Debt
Securities and all payments on or collections in respect of such
Debt Securities due after a specified "Cut-off Date" set forth in
the Terms Schedule; (ii) all the Trustee's right, title and
interest under any Swap Agreement and any related Guarantee;
(iii) all the Trustee's right, title and interest in any related
Credit Support, if any; (iv) all Permitted Investments and all
funds from time to time deposited in certain segregated accounts
held by the Trustee in trust and for the benefit of the
Unitholders representing interests in such Trust; and (v) any
other asset described in the Terms Schedule as constituting a
portion of such Trust Property, in each case exclusive of any
Retained Interest.
(b) The Trust Property for a given Series of Units and the
related Trust will not constitute Trust Property for any other
Series of Units and the related Trust and the Units of each Class
of a given Series possess an equal and ratable undivided
ownership interest in such Trust Property. The Terms Schedule
may, however, specify that certain assets constituting a part of
the Trust Property relating to any given Series may be
beneficially owned solely by or deposited solely for the benefit
of one Class or a group of Classes within such Series. In such
event, the other Classes of such Series will not possess any
beneficial ownership interest in those specified assets
constituting a part of the Trust Property.
SECTION 3.02. Administration of the Trust. (a) The Trustee
shall administer the Trust Property for the benefit of the
Unitholders. In engaging in such activities, the Trustee shall
follow or cause to be followed collection procedures in
accordance with the terms of the Trust Agreement, the Debt
Securities, the Swap Agreement, the indemnification offered by
the Depositor pursuant to Section 10.05(b) and the Guarantee. The
duties of the Trustee shall be performed in accordance with
applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized
to perform, and from time to time hereafter, shall perform only
those acts which are described in the Trust Agreement as obli
gations of the Trustee. Notwithstanding the generality of the
foregoing, the Trustee is hereby specifically authorized to do
the following on behalf of the Trust: to issue the Certificates
evidencing Units; to execute and deliver and perform its
obligations and exercise its rights under the Swap Agreement; to
establish and maintain the Unit Account hereunder; to accept
delivery of the Debt Securities and the Swap Agreement; to pledge
the assets of the Trust (including the Debt Securities) to secure
the obligations of the Trust including obligations under the Swap
Agreement; to sell the Debt Securities through the Selling Agent
in accordance with Section 9.03; to make Permitted Investments
pursuant to Section 3.06; to liquidate the Trust pursuant to
Article IX and to make distributions pursuant to Article IV.
16
(c) Notwithstanding anything to the contrary herein, the
Trust shall not engage in any business or activities other than
receiving the Debt Securities and any Credit Support or other
Trust Property and entering into the Swap Agreement as provided
herein, holding the Debt Securities, the Swap Agreement and any
Credit Support (or other Trust Property), issuing Certificates
evidencing Units, making Permitted Investments in accordance with
Section 3.06 and performing its obligations hereunder and under
the Swap Agreement; provided, however, that during its existence
the Trust shall not engage in any business or activity which will
cause it to be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment
Company Act, or to be or become a closed-end investment company
required to be registered, but not registered, under the
Investment Company Act.
(d) The Trustee shall not sell, assign, pledge or otherwise
transfer the Debt Securities, the Swap Agreement, any Credit
Support or other Trust Property, or any interest of the Trust
therein, to any Person or Persons, except to a successor trustee
as provided in Section 10.07, through the Selling Agent in
accordance with Section 9.03, in accordance with Section
10.02(a)(x), as required under any Swap Agreement or as otherwise
expressly permitted hereunder. This section shall not be
construed to prohibit transfers of the Units.
(e) The Trustee shall have the legal power to exercise all
of the rights, powers and privileges of holders of the Debt
Securities in which the Units evidence an interest; provided,
however, that the exercise of such powers shall be subject to the
provisions of this Section 3.02, Article X and the other
provisions hereof. However, neither the Trustee (except as
specifically provided herein or in the TIA) nor the Depositor
shall be under any obligation whatsoever to appear in, prosecute
or defend any action, suit or other proceeding in respect of Debt
Securities or Units.
(f) Except for actions expressly authorized by the Trust
Agreement, the Trustee shall not take actions reasonably likely
to (nor fail to take actions, if such failure would be reasonably
likely to) (i) impair the interests of the Trust in any Debt
Security, any Credit Support, the Swap Agreement or the Guarantee
(or any other Trust Property); (ii) impair the value of any Debt
Security, any Credit Support, the Swap Agreement or the Guarantee
(or any other Trust Property); or (iii) alter the classification
of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement,
the Trustee shall have no power to vary the corpus of the Trust
Property including by (i) accepting any substitute obligation or
asset for a Debt Security or any Credit Support, (ii) entering
into any amendment or modification of the Swap Agreement or the
Debt Securities, (iii) accepting any substitute guarantee for the
Guarantee, (iv) adding any other investment, obligation or
security to the Trust Property, (v) withdrawing from the Trust
Property any Debt Securities or Credit Support, (vi) terminating
the Swap Agreement except in accordance with its terms or (vii)
rejecting or otherwise failing to accept the continuing benefits
of the Guarantee.
17
SECTION 3.03. Collection of Certain Debt Security Payments.
The Trustee shall make reasonable efforts to collect all payments
required to be made pursuant to the terms of the Debt Securities
in a manner consistent with the terms of the Trust Agreement and
such Debt Securities.
SECTION 3.04. Sale. The parties hereto agree and intend
that the Transfer of Debt Securities, the Swap Agreement and all
proceeds of any of the foregoing shall be treated as a sale and
purchase by the Trust and not a loan or a pledge to secure a
loan. If for any reason such Transfer is deemed to be a loan or a
pledge to secure a loan, the parties intend that the Trust
Agreement shall be a security agreement pursuant to which there
shall be deemed to have been granted to the Trustee a security
interest in all right, title and interest in the Debt Securities,
the Swap Agreement and all proceeds of any of the Trust Property
granted in favor of the Swap Counterparty pursuant to the Swap
Agreement and to the obligation of the Trust to pay Extraordinary
Trust Expenses. If the Trust terminates prior to the satisfaction
of the claims of any Unitholder under any Unit, the security
interest created hereby shall continue in full force and effect
and the Trustee shall be deemed to be the collateral agent for
the benefit of such Unitholder, subject to the prior security
interest of the Swap Counterparty under the Swap Agreement and to
the terms of the Trust Agreement.
SECTION 3.05. Unit Account. (a) The Trustee shall establish
and maintain one or more Eligible Accounts (collectively, the
"Unit Account"), held in trust for the benefit of the
Unitholders, subject to the security interest in all of the Trust
Property granted in favor of the Swap Counterparty pursuant to
the Swap Agreement and the obligation of the Trust to pay
Extraordinary Trust Expenses. The Trustee, on behalf of the
Unitholders, shall possess all right, title and interest in all
funds on deposit from time to time in the Unit Account and in all
proceeds thereof, subject to the security interest in all of the
Trust Property granted in favor of the Swap Counterparty pursuant
to the Swap Agreement and the obligation of the Trust to pay
Extraordinary Trust Expenses. The Unit Account shall be under the
sole dominion and control of the Trustee. The Trustee shall
deposit or cause to be deposited in the Unit Account all amounts
collected with respect to the Debt Securities, Swap Agreement and
the Guarantee including:
(i) all payments received by the Trustee on account
of principal of the Debt Securities;
(ii) all payments received by the Trustee on account
of interest (if any) on the Debt Securities;
(iii) all payments received by the Trustee on account
of premium (if any) on the Debt Securities;
(iv) all Swap Amounts and all other payments, if any,
received by the Trustee on account of the Swap Agreement;
(v) the Unit Principal Balance, if applicable;
18
(vi) all payments received by the Trustee on account
of the Guarantee; and
(vii) it is understood and agreed that payments in the
nature of prepayment or redemption penalties, late payment
charges or assumption fees which may be received by the
Trustee shall be deposited by the Trustee in the Unit
Account and shall not be retained by the Trustee for its
own account.
If, at any time, a formerly Eligible Account no longer
fulfills the definition of Eligible Account, the Trustee shall
within five Business Days or by the next Distribution Date,
whichever comes earlier, establish a new Unit Account meeting the
conditions specified above and transfer any cash and any
investments on deposit in the Unit Account to such new Unit
Account, and from the date such new Unit Account is established,
it shall be the Unit Account.
(b) The Trustee shall give notice to the Depositor and the
Rating Agencies of the location of each Eligible Account
constituting the Unit Account prior to any change thereof.
SECTION 3.06. Investment of Funds in the Accounts. The
Depositor, on behalf of the Trust, may direct in writing the
Trustee or any depositary institution maintaining the Unit
Account, if any, and any other segregated account the contents of
which are held for the benefit of the Trust (each, an "Account")
to invest the funds therein in one or more Permitted Investments
bearing interest or sold at a discount, which shall be held to
maturity unless payable on demand. If the Depositor does not
provide any investment directions to the Trustee, then the
Trustee shall invest funds held in any Account in the Permitted
Investments specified in clause (i) of the definition thereof
upon receipt of such funds. Such funds shall be invested in
Permitted Investments that will mature at least one calendar day
prior to the next Distribution Date.
SECTION 3.07. Retained Interest. The Retained Interest, if
any, in any Debt Security or other Trust Property shall initially
be held by the Person so specified in the Terms Schedule and to
the extent specified therein. The Retained Interest will be
established on an asset-by-asset basis. With respect to each Debt
Security, unless otherwise specified in the Terms Schedule, the
Retained Interest shall be deducted by the Trustee from
applicable collections in respect of such Debt Security or other
Trust Property. Unless otherwise provided in the Terms Schedule,
collections in respect of Retained Interest shall not be
deposited in the Unit Account and shall not constitute a part of
the Trust, but shall instead be distributed to the holder of such
Retained Interest; provided, however, that the Terms Schedule
with respect to which there is a Retained Interest may provide
that commingled amounts received in respect of Debt Securities
and the related Retained Interest may initially be deposited in
separate and discrete accounts established by the Trustee.
SECTION 3.08. Access to Certain Documentation. The Trustee
shall provide to any Federal, State or local regulatory authority
that may exercise authority over the Depositor, the Swap
Counterparty, the Guarantor or any Unitholder access to the
documentation regarding the Debt Securities, the Swap Agreement
and the Guarantee required by applicable laws and
19
regulations. Such access shall be afforded without charge, but
only upon reasonable request and during normal business hours at
the offices of the Trustee designated by it. In addition, access
to the documentation regarding the Debt Securities, the Swap
Agreement and the Guarantee will be provided to the Depositor,
the Swap Counterparty, the Guarantor or any Unitholder upon
reasonable request during normal business hours at the offices of
the Trustee designated by it at the expense of the Person
requesting such access.
ARTICLE IV
Distributions and Reports to Unitholders
SECTION 4.01. Distributions. On each Distribution Date for
the Units (including the Scheduled Final Distribution Date), the
Trustee shall distribute the pro rata portion of the Available
Funds in the Unit Account allocable to each Unitholder.
SECTION 4.02. Reports to Unitholders. (a) On each
Distribution Date the Trustee shall forward or cause to be
forwarded to the Depositor, the Rating Agency, if any, and each
Unitholder a statement setting forth:
(i) the amount of such distribution to Unitholders
allocable to principal of or interest or premium, if any,
on the Units;
(ii) the Pass Through Rate applicable to such
Distribution Date;
(iii) the aggregate stated principal amount of the
Debt Securities as of the Distribution Date and the
interest rate applicable to the Debt Securities for the
Debt Security Accrual Period therefor next beginning;
(iv) the amount received by the Trustee on the related
Debt Securities for the Debt Security Accrual Period
therefor last ended;
(v) the amounts of and the recipients of any payments
under the Swap Agreement for the Swap Rate Accrual Period
last ended;
(vi) if feasible, the new Swap Rate applicable to the
Swap Rate Accrual Period next beginning;
(vii) the aggregate Unit Principal Balance (or
Notional Amount, if applicable) at the close of business on
such Distribution Date;
(viii) the current rating, if any, of the Units and
the Debt Securities and the name of the Rating Agencies
giving such rating;
(ix) the cumulative amount of Extraordinary Trust
Expense, if any, on such Distribution Date;
20
(x) with respect to any Trust having Trust Property
which includes Credit Support, the available amount of each
element of Credit Support; and
(xi) any additional information relevant to the
Unitholders as specified in the Terms Schedule.
In the case of information furnished pursuant to clause (i)
above, any amount shall be expressed as a Dollar amount (or the
equivalent thereof in any other Specified Currency) per minimum
denomination of Units or for such other specified portion
thereof. Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at
any time during each such calendar year was a Unitholder a
statement containing the information set forth in clause (i)
above, aggregated for such calendar year or the applicable
portion thereof during which such Person was a Unitholder which
statement shall contain sufficient information to
allow Unitholders to calculate their U.S. federal income tax
liability with respect to the Units. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall have been provided by
the Trustee pursuant to any requirements of the Code as are from
time to time in effect.
(b) At any time when the Trust is not subject to Section 13
or 15(d) of the Exchange Act, upon request to the Trustee by a
Unitholder or a prospective purchaser from a Unitholder of the
information required by Rule 144A(d)(4)(i) of the Securities Act,
the Trustee shall promptly notify the Depositor of such request,
and the Depositor shall promptly thereafter provide such
information to the Trustee, and the Trustee shall furnish such
information to such Unitholder or prospective purchaser,
provided, that for purposes of this Section 4.02(b), the
information required by Rule 144A(d)(4)(i) shall be as
interpreted in Release No. 33-6862, Part D, i.e., basic, material
information concerning the structure of the Trust, the Units and
distributions in respect thereof, and the nature and performance
of the Debt Securities, the Swap Agreement and any other assets
of the Trust.
(c) The Trustee will deliver to Unitholders copies of all
notices and communications it receives from each Debt Security
Issuer, including notice of any call of the Debt Securities by
the Debt Security Issuer. The Trustee will also notify the
Unitholders of any call of the Debt Securities by a Swap
Counterparty under the terms of a Swap Agreement.
(d) If so specified in the Terms Schedule commencing on a
certain date and on or before a specified date in each year
thereafter, a firm of independent public accountants will furnish
a statement to the Trustee to the effect that such firm has
examined certain documents and records relating to the
administration of the Trust Property during the related 12-month
period (or, in the case of the first such report, the period
ending on or before the date specified in the Terms Schedule,
which date shall not be more than one year after the related
original issue date with respect to such Units) and that, on the
basis of certain agreed upon procedures considered appropriate
under the circumstances, such firm is of the opinion that such
administration was conducted in compliance with the terms of the
Trust Agreement, except for
21
such exceptions as such firm shall believe to be immaterial and
such other exceptions and qualifications as shall be set forth in
such report.
The Terms Schedule may also provide for delivery to the
Depositor and the Trustee on behalf of the Unitholders, on or
before a specified date in each year, of an annual statement
signed by two officers of the Trustee to the effect that the
Trustee has fulfilled its obligations under the Trust Agreement
throughout the preceding year with respect to any Series of
Units. Copies of the annual accountants' statement, if any, and
the statement of officers of the Trustee may be obtained by
Unitholders without charge upon written request to the Trustee.
(e) If the Terms Schedule provides the Units are subject to
the right of one or more specified Persons to purchase all or a
portion of the Units of a given Series (a "Call Option") and
designates such Series a "Callable Series," then after receiving
notice of the exercise of such a call right, the Trustee will
provide notice thereof as provided in the Terms Schedule. The
Trustee and the Depositor agree, and each Unitholder by acquiring
its Units shall be deemed to agree, that the Call Option does not
represent an ownership interest in the Trust or its assets and
that none of them shall treat the Call Option as an ownership
interest in the Trust for any purpose.
(f) If required by TIA Section 313(a), within 60 days after
December 31 of each year, the Trustee shall mail to (i) each
Unitholder 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 4.02(f) shall, at the time of its mailing to Unitholders
and the Depositor, be filed by the Trustee with the Commission
and each stock exchange, if any, on which the Units are listed.
The Depositor shall notify the Trustee if and when the Units are
listed on any stock exchange.
SECTION 4.03. Calculation of Pass Through Rates. Unless
otherwise specified in the Terms Schedule, the Pass Through Rate
applicable to the Units will be the equivalent floating rate
applicable to payments received by the Trust under any related
Swap Agreement (as determined by the Swap Calculation Agent) or
under the Debt Securities. If the Terms Schedule specifies a
Calculation Agent, the Calculation Agent shall calculate the Pass
Through Rate applicable to the Units from time to time as
specified in the Terms Schedule. All determinations of interest
by the Calculation Agent hereunder shall, in the absence of
manifest error, be conclusive for all purposes and binding on the
holders of Units. Each of the protections, releases, indemnities
and other terms applicable to the Trustee under Section 10.01,
10.02, 10.03 and 10.05 shall apply to the Calculation Agent in
connection with its actions as Calculation Agent for the Trust.
SECTION 4.03. Compliance with Tax Reporting and Withholding
Requirements. Unless otherwise specified in the Terms Schedule,
the Trustee shall file or cause to be filed, within the time
limits established by law, federal and state income tax returns
and information statements as a grantor trust for each of Trust's
taxable years. The Trust's taxable year shall be the calendar
year. Notwithstanding any other provision of the Trust Agreement
to the contrary, the Trustee shall comply with all Federal
withholding requirements respecting distributions to, or receipts
of amounts on behalf of, Unitholders and pursuant to the Swap
Agreement that the Trustee reasonably believes are applicable
under the Code. The consent of Unitholders shall not be required
for such withholding. In the event the Trustee does withhold any
amount from interest or original issue discount distributions
thereof to any Unitholder pursuant to Federal
22
withholding requirements, the Trustee shall indicate in the
statement required pursuant to Section 4.02 the amount so
withheld.
SECTION 4.04. 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
Unitholders contained in the most recent list furnished to the
Trustee and the names and addresses of Unitholders received by
the Trustee in its capacity as Unit Registrar. The Trustee may
destroy any list furnished to it as provided upon receipt of a
new list.
(b) Unitholders shall have the right to communicate
pursuant to TIA Section 312(b) with other Unitholders with
respect to their rights under this Agreement or under the
Certificates.
(c) Irrespective of whether the TIA shall apply to this
Agreement, the Depositor, the Trustee, the Paying Agent and the
Unit Registrar shall have the protections provided pursuant to
TIA Section 312(c).
ARTICLE V
The Units
SECTION 5.01. The Units. (a) The Units may be issued in the
form of and be represented by definitive certificates
substantially in the form of Exhibit B1 or B2 hereto (a
"Certificate") or by one or more Global Securities. Units will be
issued in denominations specified in the applicable Terms
Schedule, but in no event will Units denominated in U.S. dollars
be issued in denominations less than $100,000 and in integral
multiples of $1,000 in excess thereof. The authorized
denomination of Units having a Specified Currency other than U.S.
dollars will be set forth in the applicable Terms Schedule. All
Units of the same Class shall be identical in all respects except
for the denominations thereof. All Units issued under the Trust
Agreement shall be in all respects equally and ratably entitled
to the benefits thereof without preference, priority or
distinction on account of the actual time or times of
authentication and delivery, all in accordance with the Terms
Schedule. No additional interests in the Trust other than the
Units shall be issued hereunder, except in accordance with
Section 5.04. The Units in the aggregate may be subject, to the
extent provided in the Terms Schedule, to Call Option.
(b) The Units issued under a Trust Agreement may be limited
to a single class, or, if so specified in the Terms Schedule, a
Series of Units may include two or more Classes differing as to
entitlement to distributions of principal, interest or premium
and one or more Classes may be subordinated in certain respects
to other Classes of such Series with respect to allocation of
losses arising from any defaults with respect to the Trust
Property.
Each Series and Class of Units may be issued as
Registered Units or, subject to Section 5.13, as Bearer Units, in
definitive form or as one or more Global Securities. Unless
otherwise specified in the Terms Schedule, all Units of a given
Series (or, if more than one Class exists, any given Class within
that Series) will, upon issuance, be represented by one or more
23
Global Securities that will be deposited with, or on behalf of,
DTC (only for Registered Units denominated and payable in U.S.
dollars), Euroclear, CEDEL, or another Depositary. Global
Securities may be issued in either registered or bearer form and
in either temporary or permanent form. Global Securities
representing Registered Units will be registered in the name of a
nominee of the Depositary, and will clear and settle in
book-entry form only through the facilities of one or more
Depositaries. Unless and until it is exchanged in whole or in
part for the individual Units represented thereby, a Global
Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee
of such successor.
SECTION 5.02. Execution, Authentication and Delivery. (a)
The Units shall be executed on behalf of the Trust by the Trustee
by its President, its Treasurer, or one of its Vice Presidents,
Assistant Vice Presidents or Trust Officers. The signature of any
of these officers may be manual or facsimile. Units bearing the
manual or facsimile signature of individuals who were at any time
the proper officers of the Trustee shall be binding,
notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of
such Units or did not hold such offices at the date of such
Units.
(b) The Trustee shall not be required to authenticate any
Units if the issuance of such Units pursuant to the Trust
Agreement will adversely affect the Trustee's own rights, duties
or immunities under the Trust Agreement.
(c) Each Unit shall be dated as of the date of its
authentication.
(d) Subject to Section 5.10(c), no Unit shall be entitled
to any benefit under the Trust Agreement or be valid or
obligatory for any purpose, unless there appears on such Unit a
certificate of authentication substantially in the form as
contained in the form of Unit attached to the Trust Agreement as
Exhibit B1 or B2 executed by the Trustee by the manual signature
of one of its authorized signatories, and such certificate upon
any Unit shall be conclusive evidence, and the only evidence,
that such Unit has been duly authenticated and delivered under
the Trust Agreement and is entitled to the benefits of the Trust
Agreement.
SECTION 5.03. Registration; Registration of Transfer and
Exchange. (a) The Trustee shall cause to be kept a register for
Registered Units (the registers maintained in such office and in
any other office or agency of the Trustee from which
distributions are made being herein sometimes collectively
referred to as the "Unit Register") in which, subject to such
reasonable regulations as it may prescribe, a transfer agent and
registrar (which may be the Trustee) (the "Unit Registrar") shall
provide for the registration of Registered Units and the
registration of transfers and exchanges of Registered Units. The
Trustee is hereby initially appointed Unit Registrar for the
purpose of registering Registered Units and transfers and
exchanges of Registered Units as herein provided and the Trustee
shall remain Unit Registrar for such purposes until the earlier
to occur of (i) the appointment by the Depositor of a different
Unit Registrar, (ii) the resignation or termination of the
Trustee and appointment of a successor trustee
24
in accordance with Section 10.07, in which case such successor
trustee shall assume the duties of Unit Registrar and (iii) the
termination of the Trust and discharge of the Trustee's
obligations under the Trust Agreement in accordance with the
applicable terms of Articles IX and XI; provided, however, that
the Trustee may appoint one or more Co-Unit Registrars. Upon any
resignation of any Unit Registrar appointed by the Depositor
pursuant to clause (i) above, the Trustee shall promptly appoint
a successor or, in the absence of such appointment, assume the
duties of Unit Registrar.
Upon (i) the appointment by the Depositor of a Person other
than the Trustee as Unit Registrar, (ii) the appointment of any
Co-Unit Registrar or (iii) any change in the identity of the Unit
Registrar or any Co-Unit Registrar, the Depositor will in each
case give each of the Trustee and each Rating Agency, if any,
written notice within three Business Days of any such appointment
or change and of the location, and any change in the location, of
the Unit Register, and the Trustee shall have the right to rely
upon a certificate executed on behalf of the Unit Registrar by an
Executive Officer thereof as to the names and addresses of the
Holders of the Registered Units and the principal amounts and
numbers of such Registered Units.
Upon surrender for registration of transfer of any
Registered Unit at the office or agency of the Trustee, if the
requirements of Section 8-401(1) of the Uniform Commercial Code
are met to the Trustee's satisfaction, and subject to the
transfer restrictions set forth in Section 5.11 hereof, the
Trustee shall execute, authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Registered Units of any authorized denominations, of a like
aggregate Unit Principal Balance. All transfers of Registered
Units are subject to the approval of the Trustee and the Trustee
shall not register any transfer of Registered Units if such
transfer would violate any provision of the Trust Agreement.
(b) At the option of the Holder, Registered Units may be
exchanged for other Registered Units of any authorized
denomination or denominations of like tenor and aggregate Unit
Principal Balance upon surrender of the Registered Units to be
exchanged at the office or agency of the Trustee maintained for
such purpose. Whenever any Registered Units are so surrendered
for exchange, the Trustee shall execute, authenticate and deliver
the Registered Units that the Holder making the exchange is
entitled to receive.
All Registered Units issued upon any registration of
transfer or exchange of Units shall constitute complete and
indefeasible evidence of ownership in the Trust Property and be
entitled to the same benefits under the Trust Agreement as the
Units surrendered upon such registration of transfer or exchange.
(c) Every Registered Unit presented or surrendered for
registration of transfer or exchange shall (if so required by the
Trustee or the Unit Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Unit Registrar, duly
executed, by the Holder thereof or his attorney duly authorized
in writing, with such signature guaranteed by a commercial bank
or trust company located, or having a correspondent located, in
The City of New York or the city in which the Corporate Trust
Office
25
is located, or by a member firm of a national securities
exchange, and such other documents as the Trustee may require.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Units, but the Trustee
may require payment by the Holders of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Units.
SECTION 5.04. Mutilated, Destroyed, Lost and Stolen Units.
If (i) any mutilated Unit is presented to the Depositor and the
Trustee or (ii) the Depositor and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Unit,
and there is delivered to the Depositor and the Trustee such
security or indemnity as they may require to save each of them
and any Paying Agent harmless, and neither the Depositor nor the
Trustee receives notice that such Unit has been acquired by a
bona fide purchaser, then, in each case, the Trustee, shall
execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Unit, a new Unit of
like tenor, form, terms and principal amount, bearing a number
not contemporaneously Outstanding, so that neither gain nor loss
in interest shall result from such exchange or substitution.
Upon the issuance of any new Unit under this Section, the
Trustee may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in respect thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Unit issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the
Trust Property, whether or not the destroyed, lost or stolen Unit
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of the Trust Agreement equally and
proportionately with any and all other Units, if any, duly issued
thereunder.
The terms of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or
stolen Units.
SECTION 5.05. Distributions in Respect of Units. (a) Any
per Unit amount in respect of a Registered Unit that is payable
and is punctually paid or duly provided for on any Distribution
Date or any other date shall be distributed to the Person in
whose name such Registered Unit (or one or more Predecessor
Units) is registered at the close of business on the related
Record Date notwithstanding the cancellation of such Registered
Unit upon any transfer or exchange subsequent to such related
Record Date. Distributions on Registered Units shall be made, in
accordance with arrangements satisfactory to the Trustee, by wire
transfer to an account designated in writing by a Holder, or, in
the case of distributions of Debt Securities in kind, by delivery
of such Debt Securities to any DTC or other depositary account
designated in writing by a Holder, or, if such arrangements with
respect to any Holder are not so made no later than 15 calendar
days prior to the applicable Distribution Date, at the Corporate
Trust Office (with
26
respect to the final distribution and distributions in kind of
Debt Securities) or by check mailed to the address of the Person
entitled thereto as such address shall appear in the Unit
Register.
(b) Unless otherwise indicated in the Terms Schedule,
subject to Section 5.13 and to applicable laws and regulations,
distributions in respect of interest or principal or premium on
Bearer Units will be payable only upon surrender of applicable
coupons, if any, or Units, respectively, and at such offices or
agencies outside the United States as the Trustee may from time
to time designate.
(c) Subject to the foregoing terms of this Section, each
Unit delivered under the Trust Agreement upon transfer of or in
exchange for or in lieu of any other Unit shall carry the rights
to amounts to be distributed that are accrued and undistributed,
and to accrue, that were carried by such other Unit.
SECTION 5.06. Persons Deemed Owners. Subject to Section
5.05 and except for the final distribution, the Depositor and the
Trustee and any agent of the Depositor or the Trustee may treat
the Person in whose name any Registered Unit is registered as the
owner of such Unit on the related Record Date for the purpose of
receiving distributions of principal of (and premium, if any) and
(subject to Section 5.05) interest, if any, on such Unit and for
all other purposes whatsoever, whether or not such Unit be
overdue, and neither the Depositor, the Trustee, nor any agent of
the Depositor or the Trustee shall be affected by notice to the
contrary. All distributions made to any such Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums
paid, effectual to satisfy and discharge the liability for moneys
distributable upon such Unit.
SECTION 5.07. Cancellation. All Units surrendered for
payment, redemption, transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. No Units shall be
authenticated in lieu of or in exchange for any Units canceled as
provided in this Section, except as expressly permitted by the
Trust Agreement.
SECTION 5.08. Currency of Distributions in Respect of
Units; Redenomination. (a) Except as provided in (b) and (c)
below, distributions of the principal of (and premium and
interest, if any) on the Units will be made in the Specified
Currency.
(b) Except as set forth below or unless otherwise provided
in the Terms Schedule, if distributions in respect of a Unit are
required to be made in a Specified Currency other than U.S.
dollars and such currency is unavailable due to the imposition of
exchange controls or other circumstances beyond the control of
the Depositor or the Trust or their respective Affiliates, or is
no longer used by the government of the country issuing such
currency or for the settlement of transactions by public
institutions of or within the international banking community
(other than under the circumstances described in (c)), then all
distributions in respect of such Unit shall be made at a time and
in a manner determined by the Exchange Rate Agent in its sole
discretion, which may be in the Specified Currency at such time
as such currency is again available or so used or in such other
currency and at such rates as the Exchange Rate Agent shall
determine.
27
Each of the protections, releases, indemnities and other
terms applicable to the Trustee under Section 10.01, 10.02, 10.03
and 10.05 shall apply to the Exchange Rate Agent in connection
with its actions as Exchange Rate Agent for the Trust.
(c) Unless otherwise provided in the Terms Schedule, the
Depositor may, without the consent of the Unitholders, on giving
at least 30 days' prior notice to Unitholders, the relevant
clearing systems and the Trustee, designate a date (a
"Redenomination Date"), being a date for payment of interest
under Units which are denominated in any of the currencies of the
countries which are member states of the European Community that
are participating in the third stage of economic and monetary
union pursuant to the Treaty establishing the European Community
(the "Treaty") falling on or after the start of such third stage
or, if the country of the specified currency is not one of the
countries then participating in such third stage, the
Redenomination Date in respect of such Units shall be such date
designated by the Depositor, falling on or after such later date
as it does so participate.
"Euro" means the currency to be introduced at the start of
the third stage of economic and monetary union pursuant to the
Treaty.
With effect from the Redenomination Date notwithstanding
the other provisions of the Units:
(i) Such Units shall (unless already so provided by
mandatory provisions of applicable law) be deemed to be
redenominated into Euro in the denomination of Euro 0.01
with an aggregate principal amount equal to their aggregate
principal amount in the Specified Currency, converted into
Euro at the rate for the conversion of the specified
currency into Euro established by the Council of the
European Union pursuant to the Treaty (including compliance
with rules relating to roundings in accordance with
European Community regulations).
(ii) If definitive Units are required to be issued
they shall be in the denominations of Euro 0.01, Euro
1,000, Euro 10,000, Euro 100,000 and such other
denominations as the Trustee shall determine after
consultation with the relevant clearing systems and notify
Unitholders.
(iii) All unmatured coupons denominated in the
specified currency (whether or not attached to such Units)
will become void and no payments will be made in respect of
them. New Units in respect of Euro-denominated Units and
coupons will be issued in exchange for the specified
currency Units and coupons in such manner as the Trustee
may specify and notify to Unitholders.
(iv) All payments in respect of the Units (other than
payments of interest in respect of periods commencing
before the Redenomination Date) will be made solely in
Euro. Such payments will be made in Euro by credit or
transfer to a Euro account (or any other account to which
Euro may be credited or transferred) specified by the payee
or by check.
28
(v) A redenominated Unit or coupon may only be
presented for payment on a day which is a day on which the
relevant clearance system is operating.
(vi) The amount of interest due in respect of such
Units will be calculated by reference to the aggregate
principal amount of Units presented (or, as the case may
be, in respect of which coupons are presented) for payment
by the relevant holder and the amount of such payment shall
be rounded down to the nearest Euro 0.01.
Following any redenomination of Units pursuant to the
foregoing provisions, the amount of interest due in respect of
such Units represented by any Global Security will be calculated
by reference to the aggregate principal amount of such Units and
the amount of such payment shall be rounded down to the nearest
Euro 0.01.
If the Pass Through Rate applicable to a Unit redenominated
in accordance with this section is a floating rate, the Pass
Through Rate that shall apply to such Unit from, and including,
the Distribution Date falling on or immediately prior to the
Redenomination Date shall be (i) the interest rate which applied
to such Unit prior to the redenomination, with "Euros"
substituted for the Specified Currency specified for such Unit,
unless such interest rate is inconsistent with legally applicable
standards adopted for Euro-denominated debt obligations issued in
the Euromarkets with floating rate interest payments of
frequencies identical or substantially similar to the frequency
of interest payments hereunder and held in international clearing
systems, as determined by the Depositor (or the Calculation
Agent, if any), or (ii) if such interest rate is so inconsistent,
the interest rate which the Depositor (or the Calculation Agent,
if any) determines is consistent with applicable market practices
adopted for Euro-denominated debt obligations issued in the
Euromarkets and held in international clearing systems, in each
case with such interest rate equal to the interest rate
applicable hereto (adjusted as aforesaid) plus or minus any
spread or multiplied by any spread multiplier, as indicated in
the Terms Schedule, as determined by the Depositor (or the
Calculation Agent, if any).
The interest accrual basis and the provisions of the Units
of such Series relating to the source and determination of such
interest accrual basis that shall apply to such Units from, and
including, the Distribution Date falling on or immediately prior
to the Redenomination Date shall be (i) the interest accrual
basis and such provisions which applied to such Units prior to
such redenomination, unless such interest accrual basis is and/or
such provisions are inconsistent with market practices adopted
for Euro-denominated debt obligations issued in the Euromarkets
with fixed rate or floating rate interest payments (as the case
may be) of frequencies identical or substantially similar to the
frequency of interest payments under such Units, based, in the
case of floating interest rate payments, on the reference rate
applicable to such Units prior to the Redenomination Date and
held in international clearing systems as determined by the
Depositor (or the Calculation Agent, if any) or (ii) if the
interest accrual basis which applied to such Units prior to
Redenomination Date is and/or such provisions are so
inconsistent, the interest accrual basis and/or the provisions of
the Units of such Series relating to the source and determination
of such interest accrual basis, as the case may be, which the
Depositor (or the Calculation Agent, if any) determines is
consistent with applicable market practices adopted for
Euro-denominated debt obligations issued in the Euromarkets with
fixed rate or floating rate interest payments (as
29
the case may be) of frequencies identical or substantially
similar to the frequency of interest payments under such Units,
based, in the case of floating interest rate payments, on the
reference rate applicable to such Units (adjusted as aforesaid)
and held in international clearing systems as determined by the
Depositor (or the Calculation Agent, if any).
(d) The Depositor may, with the consent of the Trustee, and
without the need to obtain the consent of the Holder of any Unit,
make any changes or additions to the terms of the Units of a
Series which (i) the Depositor and the Trustee believe are
necessary or appropriate to facilitate the implementation of the
provisions of this section as they relate to such Units in the
context of the introduction of the Euro or (ii) correct any
manifest error or any ambiguity or correct or supplement any
defective provisions described herein and which changes or
additions the Depositor and the Trustee believe are not
materially prejudicial to the interests of the Holders of the
Units of such Series. Any such change or addition shall be
binding on the Depositor, the Holders of the Units of such
Series, the Trustee, and any agent of the Trustee. The Trustee
shall promptly give notice of any such change or addition to the
Unitholders affected thereby.
SECTION 5.09. Appointment of Paying Agent. (a) The Trustee
may appoint one or more paying agents (each, a "Paying Agent")
with respect to the Units, and shall appoint at least one Paying
Agent outside the United States in respect of payments to be made
on any Bearer Units. Any such Paying Agent shall be authorized to
make distributions to Unitholders pursuant to the Trust Agreement
and shall report the amounts of such distributions to the
Trustee. The Trustee may remove the Paying Agent if the Trustee
determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under the Trust Agreement
in any material respect or if the Paying Agent fails to satisfy
the eligibility requirements set forth in paragraph (b) of this
Section. The Paying Agent shall initially be the Trustee and any
co-paying agent chosen by the Depositor and acceptable to the
Trustee. Any Paying Agent shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Trustee. In the event
that the Trustee shall no longer be the Paying Agent, the Trustee
shall appoint a successor or additional Paying Agent and shall
provide written notice of such appointment to the Rating
Agencies, if any. The Trustee shall cause each such Paying Agent
to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that it will hold all
sums, if any, held by it for distribution to the Unitholders in
an Eligible Account in trust for the benefit of the Unitholders
entitled thereto until such sums shall be distributed to such
Unitholders. The Paying Agent shall return all. unclaimed funds
to the Trustee within two years from the time such funds were
first eligible to be claimed and promptly upon removal shall also
return all funds in its possession to the Trustee.
(b) The Paying Agent shall at all times be a corporation or
an association, the combined capital and surplus of which is at
least $50,000,000 and the long-term debt obligations of which are
rated in one of the four highest categories assigned long-term
debt obligations by each of the Rating Agencies, and is subject
to supervision of examination by Federal or State authority. If
such corporation or association publishes reports of conditions
at least annually, pursuant to combined capital and surplus of
such corporation or association shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of conditions so published. In the event that at any time
the Paying Agent shall cease to be eligible in accordance with
the terms of this paragraph, the Paying Agent shall release all
Trust Property to the Trustee
30
and then resign immediately. Upon such resignation, the Trustee
shall act as Paying Agent until the appointment of a successor
Paying Agent in accordance with paragraph (c) of this Section.
(c) The terms of Sections 10.01, 10.02, 10.03, 10.05 and
10.06 shall apply to the Trustee also in its role as Paying
Agent, for so long as the Trustee shall act as Paying Agent.
(d) Any reference in the Trust Agreement to the Paying
Agent shall include any co-paying agent unless the context
requires otherwise.
SECTION 5.10. Authenticating Agent. (a) The Trustee may
appoint any one or more Authenticating Agents (each, an
"Authenticating Agent") with respect to the Units which shall be
authorized to act on behalf of the Trustee in authenticating the
Units in connection with the issuance, delivery and registration
or transfer or exchange of the Units. Whenever reference is made
in the Trust Agreement to the authentication of Units by the
Trustee or the Trustee's unit of authentication, such reference
shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent
must be acceptable to the Depositor.
(b) Any institution succeeding to the corporate agency
business of any Authenticating Agent shall continue to be an
Authenticating Agent without the execution or filling of any
power or any further act on the part of the Trustee or such
Authenticating Agent. An Authenticating Agent may at any time
resign by giving notice of resignation to the Trustee, the
Depositor and the Rating Agencies. The Trustee may at any time
terminate the agency of an Authenticating Agent by signing notice
of termination to such Authenticating Agent and to the Depositor.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an Authenticating Agent shall
cease to be acceptable to the Trustee or the Depositor, the
Trustee may appoint a successor Authenticating Agent. Subsequent
to any such removal or resignation of the Authenticating Agent,
the Trustee shall act as Authenticating Agent until a successor
Authenticating Agent, if any, is appointed. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless acceptable to the Depositor. The Trustee
agrees to pay to each Authenticating Agent from time to time
reasonable compensating for its services under this Section. The
provision of Sections 10.01, 10.02 and 10.03 shall be applicable
to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Units may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication in substantially the following form:
31
This is one of the Units described in the Trust Agreement.
_________________________________
as Authenticating Agent for
the Trustee,
By_______________________________
Authorized Signatory
SECTION 5.11. Issuance and Transfer Restrictions. (a) The
Units shall be issued on the Closing Date upon (i) deposit of the
Debt Securities into the Trust by the Depositor in exchange for
all the Units, (ii) satisfaction of the conditions set forth in
Section 2.06 and (iii) the due authentication by the Trustee of
the Units in the form set forth in Exhibit B1 or B2 attached
hereto.
(b) In the event that the Terms Schedule provides that the
Units will be Book-Entry Units, the following terms shall apply:
(i) The Units will be represented by one or more
Global Securities registered (in the case of Registered
Units) in the name of a Depositary or its nominee.
(ii) Unless otherwise provided in the Units or the
Terms Schedule, any Global Security representing Registered
Units shall be exchangeable for Certificates registered in
the name of Persons other than the Depositary or its
nominee only if (i) the Depositary is no longer willing or
able to act as a depositary and the Trustee is unable to
locate a qualified successor within 30 days, or (ii) there
shall have occurred and be continuing an event specified in
Section 9.01. Upon such issuance, the Trustee shall
register such Certificates in the name of, and cause the
same to be delivered to, such Person or Persons (or the
nominee thereof) consistent with Section 5.02.
(iii) Any Global Security representing Registered
Units may bear a legend in substantially the following
form:
"This Certificate is a Global Security within the
meaning of the Trust Agreement hereinafter referred to
and is registered in the name of a Depositary or a
nominee of a Depositary. This Certificate is
exchangeable for Certificates registered in the name of
a person other than the Depositary or its nominee only
in the limited circumstances described in the Trust
Agreement, and may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another
nominee of the Depositary."
32
(iv) Any Global Security representing Bearer Units
shall be exchangeable for definitive bearer Certificates
only outside the United States and otherwise in the time
and manner set forth in Section 5.13.
(c) (i) If the Terms Schedule provides that the Alternative
ERISA Restrictions apply, Units will be issued only as
definitive Registered Units and no transfer of any
Certificate evidencing a Unit shall be made to any employee
benefit plan, domestic or foreign, whether or not subject
to ERISA, or described in Section 4975(e)(1) of the Code,
or comparable terms of any subsequent enactments, or a
trustee of any such plan, or an entity whose underlying
assets include the assets of any such plan (each of the
foregoing a "Benefit Plan"), unless immediately after such
transfer, either (i) no Certificates are held by a Benefit
Plan subject to the fiduciary responsibility terms of Part
4, Subtitle A, Title I of ERISA, described in Section
4975(e)(1) of the Code or subject to substantially similar
legal requirements (an "ERISA Benefit Plan") or (ii)
Certificates representing a percentage interest of not more
than 24.9% are held by Benefit Plans (for this purpose the
percentage interest shall be calculated as if any
Certificates held by the Depositor, the Trustee or any of
their affiliates (within the meaning of Department of Labor
Reg. ss. 2510.3-101(f)(3)) were not outstanding). If the
Terms Schedule provides that the Alternative ERISA
Restrictions apply, the Distribution Agreement shall
require any prospective transferee to certify whether or
not it is a Benefit Plan or an ERISA Benefit Plan.
(ii) If the Terms Schedule provides that "Deemed
Representations" apply, the restrictions described in d(1)
above will not apply. Units will be issued in reliance on
certain exemptions from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the
Code which may be applicable, depending in part on the type
of Plan fiduciary making the decision to acquire a Unit and
the circumstances under which such decision is made.
Included among these exemptions are Prohibited Transaction
Class Exemption ("PTCE") 91-38 (relating to investments by
bank collective investment funds), PTCE 84-14 (relating to
transactions effected by a "qualified professional asset
manager"), PTCE 90-1 (relating to investments by insurance
company pooled separate accounts) and PTCE 96-23 (relating
to transactions determined by in-house asset managers).
Where "Deemed Representations" apply, BY ITS PURCHASE OF
ANY UNIT, THE PURCHASER THEREOF WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED EITHER THAT (A) IT IS NOT AN
ERISA PLAN OR OTHER PLAN, AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE THE ASSETS OF ANY SUCH ERISA PLAN OR OTHER PLAN, OR
A GOVERNMENTAL PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE
OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE
PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR (B) ITS PURCHASE, HOLDING AND DISPOSITION OF A UNIT
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE
OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL,
STATE OR LOCAL LAW) FOR WHICH AN EXEMPTION IS NOT AVAILABLE
OR (C) IT IS AN INSURANCE COMPANY ACQUIRING THE UNIT(S) FOR
ITS GENERAL ACCOUNT WHICH IS AN INSURANCE COMPANY GENERAL
33
ACCOUNT AS SUCH TERM IS USED IN PTCE 95-60 ISSUED BY THE
UNITED STATES DEPARTMENT OF LABOR AND THERE IS NO EMPLOYEE
BENEFIT PLAN (TREATING AS A SINGLE PLAN ALL PLANS
MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE ORGANIZATION)
WITH RESPECT TO WHICH THE AMOUNT OF THE GENERAL ACCOUNT
RESERVES AND LIABILITIES FOR ALL CONTRACTS HELD BY OR ON
BEHALF OF SUCH PLAN EXCEEDS 10% OF THE TOTAL RESERVES AND
LIABILITIES OF SUCH GENERAL ACCOUNT (EXCLUSIVE OF SEPARATE
ACCOUNT LIABILITIES) PLUS SURPLUS, AS SET FORTH IN THE NAIC
ANNUAL STATEMENTS FILED WITH ITS STATE OF DOMICILE.
(iii) Unless the Alternative ERISA Restrictions or
Deemed Representations apply, no Certificate may be
transferred to any ERISA Benefit Plan. Notwithstanding the
preceding sentence, unless the Alternative ERISA
Restrictions apply, each person who acquires a Certificate,
and each fiduciary which causes a person to acquire a
Certificate, in such fiduciary's individual capacity,
hereby agrees to indemnify and hold harmless the Depositor,
the Swap Counterparty, the Trustee and their affiliates
from any cost, damage, loss or expense incurred by them as
a result of such person being or being deemed to be an
ERISA Benefit Plan.
(d) The Trustee and the Depositor are entitled to request
additional evidence from a proposed transferee of such Units to
ensure to their sole satisfaction the accuracy of the
representations in the items in the Distribution Agreement
described above.
(e) If, at any time, the Trustee learns that any of the
representations or warranties provided by a potential transferee
of Units is false or that any agreement made therein has been
violated, any transfer of a Unit to such potential transferee
shall be null and void ab initio. The Trustee will arrange for
the compulsory sale (at a price determined by the Depositor) for
any Unit sold or otherwise acquired in contravention of any of
the transfer restrictions set forth herein. The Trustee shall
also have such other powers to effect compliance with the terms
of this Section 5.11 as it deems appropriate.
(f) Each Certificate shall be required to bear a legend
describing the restrictions on transferability set forth in this
Section 5.11 applicable thereto.
SECTION 5.12. Exchangeable Series.
(a) In order for a Unit of a given Exchangeable Series (or
Class within such Exchangeable Series) to be exchanged by the
applicable Unitholder, the Trustee must receive, at least 30 (or
such shorter period acceptable to the Trustee) but not more than
45 days prior to an Optional Exchange Date (i) such Unit with the
form entitled "Option to Elect Exchange" on the reverse thereof
duly completed or (ii) in the case of Registered Units, a
telegram, telex, facsimile transmission or letter from a member
of a national securities exchange or the National Association of
Securities Dealers, Inc., the Depositary (in accordance with its
normal procedures) or a commercial bank or trust company in the
United States setting forth the name of the Holder
34
of such Registered Unit, the Unit Principal Balance or Notional
Amount of such Registered Unit to be exchanged, the certificate
number or a description of the tenor and terms of such
Registration Unit, a statement that the option to elect exchange
is being exercised thereby and a guarantee that the Registered
Unit to be exchanged with the form entitled "Option to Elect
Exchange" on the reverse of the Registered Unit duly completed
will be received by such Trustee not later than five Business
Days after the date of such telegram, telex, facsimile
transmission or letter. If the procedure described in clause (ii)
of the preceding sentence is followed, then such Registered Unit
and form duly completed must be received by such Trustee by such
fifth Business Day. Any tender of a Unit by the Holder for
exchange shall be irrevocable. The exchange option may be
exercised by the Holder of a Unit for less than the entire Unit
Principal Balance of such Unit provided that the Unit Principal
Balance or Notional Amount, as applicable, of such Unit remaining
outstanding after redemption is an authorized denomination and
all other exchange requirements set forth in the related Terms
Schedule are satisfied. Upon such partial exchange, such Unit
shall be canceled and a new Unit or Units for the remaining Unit
Principal Balance thereof shall be issued (which, in the case of
any Registered Unit, shall be in the name of the Holder of such
exchanged Unit).
(b) Unless otherwise provided in the Terms Schedule, upon
the satisfaction of the foregoing conditions and any applicable
conditions with respect to the related Trust Property, the
applicable Unitholder will be entitled to receive a distribution
of a pro rata share of the Trust Property related to the
Exchangeable Series (and Class within such Exchangeable Series)
of the Unit being exchanged, in the manner and to the extent
described in the Terms Schedule. Alternatively, if so specified
in the Terms Schedule, the applicable Unitholder, upon
satisfaction of such conditions, may direct the Trustee to sell,
on behalf of such Unitholder, such pro rata share of the Trust
Property, in which event the Unitholder shall be entitled to
receive the net proceeds of such sale, less any costs and
expenses incurred by such Trustee in facilitating such sale,
subject to any additional adjustments set forth in the Terms
Schedule.
Any right of exchange in respect of Units of an
Exchangeable Series shall be exercisable only to the extent that
the Depositor determines that such exchange would not be
inconsistent with the Depositor's and such Trust's continued
satisfaction of the applicable requirements for exemption under
Rule 3a-7 under the Investment Company Act. The Terms Schedule
shall set forth additional terms pertaining to any right of
exchange, including but are not limited to, the following:
(i) a requirement that the exchanging Holder tender to
the Trustee Units of each Class within such Exchangeable
Series;
(ii) a minimum Unit Principal Balance or Notional
Amount, as applicable, with respect to each Unit being
tendered for exchange;
(iii) a requirement that the Unit Principal Balance or
Notional Amount, as applicable, of each Unit tendered for
exchange be an integral multiple of an amount specified in
the Terms Schedule;
35
(iv) specified dates during which a Holder may effect
such an exchange (each, an "Optional Exchange Date");
(v) limitations on the right of an exchanging Holder
to receive any benefit upon exchange from any Credit
Support or other non-Debt Securities deposited in the
applicable Trust;
(vi) adjustments to the value of the proceeds of any
exchange based upon the Unitholder's allocable share of
expenses incurred but not yet paid and the establishment of
a reserve for any allocable Extraordinary Trust Expenses as
set forth in the Terms Schedule; and
(vii) a requirement that the exchanging holder obtain
the consent of any Swap Counterparty to such exchange and
tender to the Swap Counterparty a termination payment for
termination of the portion of the Swap Agreement
corresponding to the portion of the Debt Securities to be
distributed by the Trustee.
SECTION 5.13. Limitations on Issuance of Bearer Units.
In compliance with U.S. federal income tax laws and
regulations, the Depositor and any underwriter, agent or dealer
participating in the offering of any Bearer Unit will agree that,
in connection with the original issuance of such Bearer Unit and
during the period ending 40 days after the issue of such Bearer
Unit, they will not offer, sell or deliver such Bearer Unit,
directly or indirectly, to a U.S. Person or to any person within
the United States, except to the extent permitted under U.S.
Treasury regulations.
Bearer Units will bear a legend to the following effect:
"Any United States Person who holds this obligation will be
subject to limitations under the United States income tax laws,
including the limitations provided in Sections 165(j) and 1287(a)
of the Internal Revenue Code." The sections referred to in the
legend provide that, with certain exceptions, a United States
taxpayer who holds Bearer Units will not be allowed to deduct any
loss with respect to, and will not be eligible for capital gain
treatment with respect to any gain realized on a sale, exchange,
redemption or other disposition of, such Bearer Units.
Pending the availability of a permanent Global Security or
definitive Bearer Units, as the case may be, Units that are
issuable as Bearer Units may initially be represented by a single
temporary Global Security, without interest coupons, to be
deposited with a common depositary in London for Euroclear and
CEDEL for credit to the accounts designated by or on behalf of
the purchasers thereof. Following the availability of a permanent
Global Security in bearer form, without coupons attached, or
definitive Bearer Units and subject to any further limitations
described in the Terms Schedule, the temporary Global Security
will be exchangeable for interests in such permanent Global
Security or for definitive Bearer Units, respectively, only upon
receipt of a certificate acceptable to the Depositor and the
Trustee to the effect that a beneficial interest in a temporary
Global Security is owned by a person that is not a U.S. Person or
is owned by or through a financial institution in compliance with
applicable U.S. Treasury
36
regulations (a "Certificate of Non-U.S. Beneficial Ownership").
No Bearer Unit will be delivered in or to the United States. If
so specified in the Terms Schedule, interest on a temporary
Global Security will be distributed to each of Euroclear and
CEDEL with respect to that portion of such temporary Global
Security held for its account, but only upon receipt as of the
relevant Distribution Date of a Certificate of Non-U.S.
Beneficial Ownership.
SECTION 5.14. Callable Units. If one or more specified
Persons has the right to purchase all or a portion of the Units
of any given Series, the Terms Schedule will designate such
Series as a "Callable Series," and specify the terms upon which
any such specified Person may exercise its right to purchase all
or a portion of the Units. Such terms may relate to, but are not
limited to, the following:
(i) a minimum Unit Principal Balance with respect to
each Unit being purchased;
(ii) a requirement that the Unit Principal Balance of
each Unit being purchased be an integral multiple of a
specified amount;
(iii) specified dates during which such a purchase may
be effected (each, a "Call Date"); and
(iv) the price at which such a purchase may be
effected (the "Call Price").
After receiving notice of the exercise of such a call
right, the Trustee will provide notice thereof as specified in
the Terms Schedule. Upon the satisfaction of any applicable
conditions to the exercise of such right to purchase of the Units
described in such Terms Schedule, each Unitholder will be
entitled to receive a distribution of a pro rata share of the
Call Price paid in connection with such exercise, in the manner
and to the extent described in such Terms Schedule.
SECTION 5.15. Delivery of Information. The Trustee shall
deliver to the Unitholders copies of all notices and
communications it receives from the Debt Security Issuer,
including notice of any exercise of any call option with respect
to the Debt Securities by the Debt Security Issuer. The Trustee
shall also notify the Unitholders of any call of the Debt
Securities by the Counterparty under the terms of the Swap
Agreement.
ARTICLE VI
The Depositor
SECTION 6.01. Liability of the Depositor. The Depositor
shall be liable in accordance with the Trust Agreement only to
the extent of the obligation specifically imposed thereby.
SECTION 6.02. Limitation on Liability of the Depositor. (a)
Unless otherwise expressly specified in the Trust Agreement, the
Depositor shall not be under any obligation to expend or risk its
own funds, except to the extent of its obligation to pay any
amount payable
37
under the Trustee Fee Letter or under Section 10.05(b) hereof, or
otherwise incur financial liability in the performance of its
duties thereunder or in the exercise of any of its rights or
powers if reasonable grounds exist for believing that the
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(b) Neither the Depositor nor any of the directors,
officers, employees or agents of the Depositor shall be under any
liability to the Trustee, the Trust Property or the Unitholders
for any action taken, or for refraining from the taking of any
action, in good faith pursuant to the Trust Agreement, or for
errors in judgment; provided, however, that this provision shall
not protect the Depositor or any such person against any breach
of warranties, representations or covenants made in the Trust
Agreement, or against any specific liability imposed on the
Depositor pursuant to the Trust Agreement, or against any
liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties
specifically set forth in the Trust Agreement or by reason of
reckless disregard of obligations and duties specifically set
forth in the Trust Agreement.
The Depositor shall not be under any obligation to appear
in, prosecute or defend any legal action unless such action is
related to its duties under the Trust Agreement and, in its
reasonable opinion, does not involve it in any expense or
liability; provided, however, that the Depositor may in its
discretion undertake any such action which it may deem necessary
or desirable with respect to the Trust Agreement and the rights
and duties of the parties thereto and the interests of the
Unitholders.
SECTION 6.03. Depositor May Purchase Units. The Depositor
or its Affiliates may at any time purchase Units in the open
market or otherwise. Units so purchased by the Depositor may, at
the discretion of the Depositor, be held or resold.
SECTION 6.04. Preparation and Filing of Exchange Act
Reports; Obligations of the Depositor. The Depositor shall:
(a) on behalf of the Trust, prepare, sign and file with the
Commission, within the time period set forth below, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe), if any, which the Depositor on behalf of the Trust
may be required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act (collectively, "Exchange Act
Reports") with respect to the Trust. The names of such Exchange
Act Reports and the dates on which they are required to be filed
with the Commission are as follows:
(i) Form 8-K, within the time requirement prescribed
by the Exchange Act if the filing of Form 8-K is necessary;
(ii) Form 10-K, within the time requirement prescribed
by the Exchange Act; and
38
(iii) such other reports as may be required pursuant
to Section 13 or 15(d) of the Exchange Act.
(b) deliver to 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; and
(c) deliver to the Trustee, which shall then transmit by
mail to all Holders described in TIA Section 313(c), in the
manner and to the extent provided therein, such summaries of any
information, documents and reports required to be filed by the
Depositor and received pursuant to clauses (a) and (b) of this
Section 6.04, if any, as may be required by rules and regulations
prescribed from time to time by the Commission.
SECTION 6.05. Preferential Collection of Claims Against
Depositor. Irrespective of whether the TIA shall apply to those
Agreement, the Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b).
A trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent required by TIA Section 311(a).
ARTICLE VII
Rights of Unitholders
SECTION 7.01. Voting Rights with Respect to Debt
Securities. (a) Within five Business Days after receipt of notice
of any meeting of, or other occasion for the exercise of voting
rights or the giving of consents by, owners of any of the Debt
Securities, the Trustee shall give notice to the Unitholders,
setting forth (i) such information as is contained in such notice
to owners of Debt Securities, (ii) a statement that the
Unitholders will be entitled, subject to any applicable provision
of law and any applicable terms of such Debt Securities (and to
the extent of the voting rights allocated to the Unitholders), to
instruct the Trustee as to the exercise of voting rights, if any,
pertaining to such Debt Securities and (iii) a statement as to
the manner in which instructions may be given to the Trustee to
give a discretionary proxy to a person designated in the notice
received by the Trustee. Such notice shall be given by the
Trustee to the Unitholders of record on such record date.
(b) Unless otherwise specified in the Terms Schedule the
voting rights allocable to the owners of the Debt Securities
pursuant to the terms thereof will be allocated among the
Unitholders pro rata, in the proportion that the denomination of
each Unit bears to the aggregate denomination of all Units; and
upon the written request of the applicable Unitholder, received
on or before the date established by the Trustee for such
purpose, the Trustee shall endeavor, insofar as practicable and
permitted under any applicable provision of law and any
applicable provision of or governing the Debt Securities, to vote
in accordance with any nondiscretionary instruction set forth in
such written request, provided, that the Trustee shall not vote
except as specifically
39
authorized and directed in written instructions from the
applicable Unitholder entitled to give such instructions.
(c) Notwithstanding Section 7.01(b), the Trustee must
reject any vote to (i) after the currency, amount or timing of
payment of, or the method or rate of accruing, any principal or
interest on the Debt Securities underlying the Units held by such
Unitholder or (ii) consent to any redemption or prepayment of the
Debt Securities underlying the Units held by such Unitholder or
(iii) consent to the issuance of new obligations in exchange or
substitution for any Debt Securities pursuant to a plan or
refunding of the Debt Securities or any other offer for the Debt
Securities; in each case unless the Trustee is directed by the
affirmative vote of all Unitholders to accept such amendment or
offer as the case may be; and provided, further, that the Trustee
receives advice of nationally recognized independent tax counsel,
designated by the Depositor, that such exercise of voting rights
with respect to any Debt Securities would not result in a "sale
or other disposition" of such Debt Securities within the meaning
of Section 1001(a) of the Code. The Trustee will not grant any
consent (other than a unanimous consent) solicited from the
owners of the Debt Securities underlying the Units with respect
to the foregoing matters in (i), (ii) and (iii) above nor will it
accept or take any action in respect of any consent, proxy or
instructions received from any Unitholder in contravention of
such provisions. In addition, if the Trustee determines (based
upon advice furnished by nationally recognized independent tax
counsel, whether at the request of any Unitholder or otherwise)
that the exercise of voting rights with respect to any Debt
Securities could result in a "sale or other disposition" of such
Debt Securities within the meaning of Section 1001(a) of the
Code, the Trustee shall exercise such voting rights in a manner
that would not result in any such sale or other disposition. The
Trustee will have no responsibility to undertake on its own
initiative to determine that any exercise of voting rights will
result in any such sale or other disposition and in any event
will not undertake to make such determination unless given an
indemnity reasonably satisfactory to it against the costs of such
determination.
SECTION 7.02. Amendments and Waivers Under Swap Agreement
and Guarantee. Without the need for consent of any Unitholder,
the Trustee shall enter into any amendment of the Swap Agreement
or the Guarantee requested by the Swap Counterparty or the
Guarantor, respectively, to cure any ambiguity or manifest error
in, or to correct or supplement any provision of, the Swap
Agreement or the Guarantee, so long as (i) the Trustee determines
that such amendment will not adversely affect the interests of
the Unitholders and (ii) the Trustee has received an Opinion of
Counsel, at the expense of the Swap Counterparty or the
Guarantor, to the effect that such amendment will not adversely
affect the interests of the Unitholders and will not alter the
classification of the Trust for Federal income tax purposes. The
Trustee shall not agree to any other request from the Swap
Counterparty or the Guarantor for approval of any consent, waiver
or other modification of the Swap Agreement or the Guarantee
without the unanimous consent of the Unitholders and compliance
with clause (ii) of the preceding sentence.
ARTICLE VIII
Default on Debt Securities and Permitted Investments
SECTION 8.01. Realization Upon Default. (a) The Trustee, on
behalf of the Unitholders, shall assert claims under the Debt
Securities or the Permitted Investments, and shall take such
reasonable steps as are necessary to receive payment or to permit
recovery thereunder with respect to any default, subject in all
cases to the terms of Article X.
40
(b) If the Trustee is unable to obtain full recovery in
respect of a defaulted Debt Security or Permitted Investment, the
Trustee shall follow or cause to be followed such normal
practices and procedures as it deems necessary or advisable to
realize upon such defaulted Debt Security or Permitted
Investment, subject in all cases to the terms of Article X.
(c) If there is an event of default (as defined in the
indenture or other document pursuant to which the Debt Securities
were issued) with respect to any Debt Security and such default
is known to the Trustee, the Trustee shall promptly give notice
to the Unitholders thereof as promptly as practicable as provided
in Section 12.05 hereof, and in the manner and to the extent
provided in TIA Section 313(c)) within 90 days after such event
of default occurs.
ARTICLE IX
Trust Wind-Up Events
SECTION 9.01. Trust Wind-Up Events. If any of the following
events (each event, a "Trust Wind-up Event") shall occur:
(a) any Swap Default arising from any action taken or
failure to act, by the Swap Counterparty, if applicable;
(b) the occurrence of one or more Debt Security Defaults
which either (i) results in a Debt Security Default with respect
to all Debt Securities held by the Trust or (ii) results in a
Termination Event under the Swap Agreement with respect to which
all Transactions under the Swap Agreement are Affected
Transactions, as a result of;
(c) any Termination Event under the Swap Agreement with
respect to which the Swap Counterparty shall be the sole
"Affected Party" (as defined in the Swap Agreement); provided
that at the time of such occurrence no Settlement Amount would be
payable by the Trust to the Swap Counterparty upon designation of
an Early Termination Date by the Trust;
(d) the designation of an Early Termination Date by the
Swap Counterparty under a related Swap Agreement (other than with
respect to the termination of fewer than all Transactions entered
into under the Swap Agreement);
(e) the designation of a Special Depositor Wind-Up Event
described in Section 9.06;
(f) the Debt Security Issuer with respect to any
Concentrated Debt Security ceases to be a reporting company under
the Exchange Act, provided that the Trust holds no other Debt
Securities for which the Debt Security Issuer continues to be a
reporting company or which is not a Concentrated Debt Security;
(g) any Excess Expense Event; and
41
(h) any other Trust Wind-Up Event set forth in the Terms
Schedule;
then the Trustee shall by notice to the Swap Counterparty
terminate the Swap Agreement (including all Transactions
thereunder) if such notice is applicable under the Swap
Agreement, and the Trustee shall distribute to each Unitholder
its pro rata share of the Trust Property in accordance with
Section 9.03 and the Trust shall terminate. The Trustee shall
also provide notice of such Trust Wind-up Event to the Rating
Agencies immediately upon discovery or receipt of notice of such
Trust Wind-Up Event.
SECTION 9.02. Liquidation Events. In the event that (a) a
Debt Security Default shall occur which under the terms of the
Swap Agreement results in the termination of at least one but
fewer than all Transactions under the Swap Agreement or (b) the
Debt Security Issuer with respect to any Concentrated Debt
Security ceases to be a reporting company under the Exchange Act,
but the Trust holds other Debt Securities for which the Debt
Security Issuer continues to be a reporting company or which are
not a Concentrated Debt Security (either of (a) and (b) a
"Liquidation Event" and the Debt Securities affected thereby the
"Affected Debt Securities"), and a Trust Wind-Up Event has not
otherwise occurred, then the Debt Securities affected by such
Liquidation Event shall be sold to the extent necessary to pay
any Termination Payment applicable to the Affected Transaction
under the Swap Agreement, and the remainder distributed to the
Unitholders in accordance with Section 9.03, but the Trust shall
continue thereafter.
SECTION 9.03. Trust Property Made Available. (a) Subject to
Section 9.04, as promptly as possible after the occurrence of a
Trust Wind-up Event or Liquidation Event, and in any case within
three Business Days following such occurrence, the Trustee shall
provide notice to the Unitholders and the Rating Agencies of the
occurrence of a Trust Wind-up Event or Liquidation Event, the
termination of the Swap Agreement or the particular Affected
Transaction(s) thereunder, the amount of any related Termination
Payment and a notice of the rights of the Unitholders under
Section 9.03(c). In the case of a Trust Wind-Up Event, subject to
Section 9.01, the Trustee shall also provide notice to the
Unitholders and the Rating Agencies of the termination of the
Trust and that Holders should surrender their Units to the
Trustee, or deliver security or indemnity acceptable to the
Trustee, for their respective pro rata distributions of the Debt
Securities and any other remaining Trust Property, if any. Such
notice to the Unitholders and the Rating Agencies shall also
specify (i) the cause of the Trust Wind-up Event, (ii) the
location and hours of the Corporate Trust Office at which Units
should be presented and surrendered and (iii) that each Holder
must supply transfer instructions in writing with respect to the
Debt Securities and/or other Trust Property to be distributed in
cash or in kind.
(b) Immediately upon receipt of notice from the Swap
Counterparty that the Trust will be obligated to pay a
Termination Payment or upon other notice from the Trustee that
the Trust is required to sell Debt Securities, the Selling Agent
shall undertake to sell Debt Securities on behalf of the Trust,
unless and until the Selling Agent receives notice from the
Trustee of an exercise by the Unitholders of their rights under
Section 9.03(c); provided, however, that the Selling Agent may
elect not to act as Selling Agent with respect to some or all of
the Debt Securities by written notice to that effect to the
Trustee. The timing, price and other terms of any sale conducted
by the Selling Agent shall be determined by the Selling Agent in
its sole
42
discretion, but all such sales shall be completed within 30 days
or such longer period of time as may be reasonable with respect
to particular Debt Securities. In the case of a Liquidation
Event, sales under this provision shall be limited to the
Affected Debt Securities except where the proceeds from the
Affected Debt Securities are insufficient to make payment of the
Termination Payment.
(c) Notwithstanding Section 9.03(b), in connection with any
Termination Payment payable by the Trust, the Unitholders may,
acting unanimously, deliver to the Trustee the amount of such
outstanding Termination Payment (together with, in the case of a
Trust Wind-Up Event, any Extraordinary Trust Expenses in excess
of the Maximum Reimbursable Amount payable to the Trustee) and a
written instruction to discontinue sale of the Debt Securities.
If the Selling Agent receives notice from the Trustee of the
exercise by the Unitholders of their rights under this Section
9.03(c), the Selling Agent shall promptly discontinue sales of
the related Debt Securities (but the Selling Agent and the
Trustee shall complete the settlement of any sale already
agreed). It is expressly understood and agreed that Debt
Securities may be sold in the time necessary for the Unitholders
to be notified of and act upon their rights under this Section
9.03(c).
(d) Subject to the security interest in all of the Trust
Property granted in favor of the Swap Counterparty pursuant to
the Swap Agreement and the obligation of the Trust to pay
Extraordinary Trust Expenses, and as provided in the Terms
Schedule, the Debt Securities or Affected Debt Securities shall
be made available by the Trustee to the Holders upon the
occurrence of a Trust Wind-up Event or Liquidation Event,
respectively, after expiration of any sale period referred to in
Section 9.03(b), and upon surrender, or delivery of security or
indemnity acceptable to the Trustee, by each Holder of its Units
at the Corporate Trust Office specified pursuant to paragraph (a)
of this Section 9.03. Upon receipt by the Trustee of (i)
appropriate transfer instructions in writing from a Holder with
respect to the Debt Securities and (ii) such Holder' Units (or
acceptable security or indemnity), the Trustee shall promptly
deliver Debt Securities to such Holder in an aggregate principal
amount equal to the aggregate Unit Principal Balance of such
Holder' Units in accordance with such transfer instructions by
(A) physical delivery or (B) if applicable, causing the
book-entry depositary for such Debt Securities to credit such
Debt Securities to an account of such Holder with such depositary
or an account of a designated participant in such depositary,
provided that such book-entry depositary will be an agency of the
United States, DTC or another book-entry institution acceptable
to the Depositary. Any Transfer made in accordance with this
paragraph shall satisfy all obligations of the Trust with respect
to the Unitholders.
(e) Unless otherwise provided in the Terms Schedule, and
notwithstanding any other provision of this Agreement (and as
specified in the Swap Agreement), in connection with early
termination of a Swap Agreement or one or more Transactions
thereunder, other than as a result of Debt Security Default, the
claim of the Swap Counterparty against the Debt Securities (or
proceeds thereof arising from sale thereof) and any other Trust
Property will be limited to a claim pro rata with that of the
Unitholders according to the amount of the Termination Payment
otherwise payable to the Swap Counterparty and the Unitholders'
aggregate Unit Principal Balance plus accrued interest.
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(f) The only distributions from the Trustee to which the
Holders shall be entitled are, subject to the security interest
in all of the Trust Property granted in favor of the Swap
Counterparty pursuant to the Swap Agreement and the obligation of
the Trust to pay Extraordinary Trust Expenses, payments on the
Debt Securities, amounts, if any, recovered under the Swap
Agreement (including Termination Payments, if any, and amounts
collected pursuant to Section 2(e) and Section 11 of the Swap
Agreement) or Guarantee, received by the Trustee after the
occurrence of the Trust Wind-Up Event, and any other remaining
Trust Property, if any, which in each case the Trustee shall
distribute pro rata to the Unitholders in the manner provided
pursuant to Section 4.01 upon satisfaction of the conditions for
transfer of Debt Securities referred to in paragraph (b) of this
Section.
(g) Except for reports and other information required to be
provided to Holders under the Trust Agreement, the obligations
the Trustee and the Depositor will terminate upon the
distribution to Unitholders of all amounts required to be
distributed to them and the disposition of all Debt Securities
held by the Trustee, and such distribution shall constitute full
satisfaction of all of the interests of the Unitholders under
this Trust Agreement.
(h) In the event that the Selling Agent resigns or declines
to sell specific Debt Securities, the Trustee shall proceed under
Section 10.02(a)(x).
(i) The Selling Agent is an agent of the Trustee only and
shall have no fiduciary or other duties to the Unitholders, nor
shall the Selling Agent have any liability to the Trust in the
absence of the Selling Agent's bad faith or willful default. The
Selling Agent shall be permitted to sell Debt Securities to
Affiliates of the Selling Agent. The Selling Agent may (in
addition to declining to sell specific Debt Securities as
provided in Section 9.03(b)) resign at any time by notice to the
Trustee, such resignation to take effect immediately upon notice.
Except as provided in the first sentence of this Section 9.03(i),
each of the protections, releases, indemnities and other terms
applicable to the Trustee under Section 10.01, 10.02, 10.03 and
10.05 shall apply to the Selling Agent in connection with its
actions as Selling Agent for the Trust.
(j) Subject to Section 9.03(b) and Section 9.03(e), the
Trustee agrees that upon any failure of the Trust to make any
payment when due under the Swap Agreement, the Swap Counterparty
shall have the right to take all action and to pursue all
remedies with respect to such property that a secured party is
permitted to take with respect to collateral under the UCC,
including the right to require the Trustee promptly to sell all
or any portion of the Debt Securities in the open market or, if
the Swap Counterparty elects, to sell the Debt Securities to the
Swap Counterparty for its fair value as determined in good faith
by the Swap Counterparty. In either case, the proceeds of sale
shall be applied to any amounts owed to the Swap Counterparty.
The Trustee further agrees to take any actions necessary to
facilitate the perfection of the aforementioned security interest
of the Swap Counterparty in the property of the Trust as the Swap
Counterparty may reasonably request.
SECTION 9.04. Limitation on Notice Requirement. The Trustee
shall not be responsible for terminating the Swap Agreement (or
any individual Affected Transaction thereunder) or giving notice
of a Trust Wind-up Event unless and until (i) the Trustee fails
to receive funds due
44
on the Debt Securities or under the Swap Agreement when due and
such funds are not received within any applicable grace period,
(ii) receipt by the Trustee of notice from the Swap Counterparty
of the occurrence of a Swap Default or Termination Event or upon
actual knowledge of a Swap Default or Termination Event by a
Responsible Officer of the Trustee; provided, however, that the
Trustee is responsible for making due inquiry as to whether a
Trust Wind-up Event occurred if it has reason to believe that
such a Trust Wind-up Event has occurred or (iii) receipt of
notice from the Debt Security Issuer of an event constituting a
Debt Security Default.
SECTION 9.05. Expense Event. (a) In the event that the
Trustee incurs Extraordinary Trust Expense in an aggregate amount
exceeding the Trigger Amount and neither the Swap Counterparty
nor the Unitholders have provided adequate assurance of indemnity
to the Trustee in accordance with the terms of paragraph (b) or
paragraph (c), as applicable, of this Section (such event, an
"Excess Expense Event"), the Trust shall terminate as provided in
Section 9.01.
(b) Promptly upon the incurrence by the Trustee of
Extraordinary Trust Expense in an aggregate amount exceeding the
Trigger Amount, and in any event within one Business Day after
such incurrence, the Trustee shall provide notice to each
Unitholder, to the Swap Counterparty and to the Rating Agencies,
if any. Such notice shall state that an Excess Expense Event
shall occur on the seventh calendar day (or, if such day is not a
Business Day, on the next succeeding day that is a Business Day)
following the provision of such notice unless prior to such day
either the Unitholders unanimously agree, or the Swap
Counterparty agrees, to indemnify the Trustee for Extraordinary
Trust Expense in an aggregate amount exceeding the Maximum
Reimbursable Amount (or any other amount specified by the party
agreeing to indemnify the Trustee), and actually incurred by the
Trustee as of the date of such agreement, to the reasonable
satisfaction of the Trustee and its counsel; provided, however,
in no event shall the Trustee be released from its obligations
under the Trust Agreement until such seventh calendar day (or, if
such day is not a Business Day, on the next succeeding day that
is a Business Day).
(c) Following an agreement to indemnify the Trustee for
future Extraordinary Trust Expense, upon the incurrence of
Extraordinary Trust Expense in excess of the Maximum Reimbursable
Amount, then an "Excess Expense Event" will occur unless adequate
assurance of indemnity is given to the Trustee in the manner
specified in paragraph 9.05(b).
(d) Nothing in this Section shall be construed to excuse
the Depositor from its indemnification obligations under Section
10.05.
SECTION 9.06. Special Depositor Wind-Up Event. If the
Depositor (or, if applicable, its permitted assignee) owns 100%
of the Units, then it shall have the power to designate a
distribution of the Trust Property to the Unitholders and the
termination of the Trust (a "Special Depositor Wind-Up Event")
pursuant to this Article IX.
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ARTICLE X
Concerning the Trustee
SECTION 10.01. Duties of Trustee. (a) The Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in the Trust Agreement. Any permissive
right of the Trustee enumerated in the Trust Agreement shall not
be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee which are specifically
required to be furnished pursuant to any provision of the Trust
Agreement, shall examine them to determine whether they conform
to the requirements of the Trust Agreement. If any such
instrument is found not to conform to the requirements of the
Trust Agreement, the Trustee shall take action as it deems
appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee's satisfaction, the
Trustee will provide notice thereof to the Depositor, the
Unitholders and the Rating Agencies, if any.
(c) Upon a default by the Swap Counterparty in making any
other payment due under the Swap Agreement and upon a default by
the Guarantor after the Trustee makes demand under the Guarantee,
the Trustee shall exercise such of the rights and powers vested
in it by the Trust Agreement, and shall 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' own affairs.
(d) No provision of the Trust Agreement shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own misconduct;
provided, however, that:
(i) the duties and obligations of the Trustee shall be
determined solely by the express terms of the Trust
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in the Trust Agreement, no implied
covenants or obligations (except for a fiduciary duty to
the beneficiaries of the Trust) shall be read into the
Trust Agreement against the Trustee and, in the absence of
negligence, bad faith or willful misconduct on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee that conform to the requirements
of the Trust Agreement;
(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) except with respect to actions or duties
required to be taken or performed, as applicable, by the
Trustee under the express terms of the Trust Agreement, the
Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the
performance of any of its duties or in the exercise of any
of its rights powers under the Trust Agreement if there is
reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability
is not reasonably assured
46
to it; provided, however, that the Trustee agrees that the
indemnification under Section 10.05 will provide reasonable
assurance against such risk or liability; and
(iv) in the event that the Paying Agent or the Unit
Registrar shall fail to perform any obligation, duty or
agreement in the manner or on the day required to be
performed by the Paying Agent or Unit Registrar, as the
case may be, under the Trust Agreement, the Trustee shall
be obligated promptly upon its knowledge thereof to perform
such obligation, duty or agreement in the manner so
required.
SECTION 10.02. Certain Matters Affecting the Trustee. (a)
Except as otherwise provided in Section 10.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any
resolution, Officers' Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or
other paper or document reasonably believed by it to be
genuine and to have been signed by the proper party or
parties;
(ii) the Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken
or suffered or omitted by it under the Trust Agreement in
good faith and in accordance with such advice or Opinion of
Counsel;
(iii) except for the duties and obligations of the
Trustee expressly created by the Trust Agreement, the
Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by the Trust Agreement or to
institute, conduct or defend any litigation thereunder or
in relation thereto, at the request, order or direction of
any of the Unitholders, pursuant to the terms of the Trust
Agreement, unless such Unitholders or the Depositor shall
have, to the reasonable satisfaction of the Trustee and its
counsel, offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby;
(iv) the Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by the
Trust Agreement;
(v) the Trustee shall not be bound to make any
investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal,
approval, bond or other paper or document believed by it to
be genuine;
(vi) the Trustee may execute any of the trusts or
powers or perform any duties under the Trust Agreement
either directly or by or through agents or attorneys or a
custodian or administrative agent;
47
(vii) the Trustee shall not be personally liable for
any loss resulting from the investment of funds held in any
Unit Account pursuant to Section 3.04;
(viii) the Trustee shall not be deemed to have notice
or knowledge of any matter unless a Responsible Officer
assigned to and working in the Corporate Trust Office has
actual knowledge thereof or unless written notice thereof
is received by the Trustee at the Corporate Trust Office
and such notice references the Units generally or the Trust
Agreement;
(ix) the Trustee shall have the power to reimburse
itself for any unpaid Extraordinary Trust Expense actually
incurred in accordance with the terms and conditions of
this Trust Agreement prior to the distribution of funds or
Trust Property to Unitholders; and
(x) the Trustee shall have the power to sell the Debt
Securities and other Trust Property, in accordance with
Article IX and XI, through the Selling Agent or, if the
Selling Agent shall have resigned or declined to sell some
or all of the Debt Securities, any broker selected by the
Trustee (with the consent of the Depositor) with reasonable
care, in an amount sufficient to pay any amount due to the
Swap Counterparty under the Swap Agreement (including
Termination Payments) or reimbursable to itself in respect
of unpaid Extraordinary Trust Expenses and to use the
proceeds thereof to make such payments prior to the
distribution of funds or Trust Property to Unitholders. Any
such broker shall be instructed by the Trustee to sell such
Trust Property in a reasonable manner designed to maximize
the sale proceeds.
(b) All rights of action under the Trust Agreement or under
any of the Units, enforceable by the Trustee, may be enforced by
it without the possession of any of the Units, or the production
thereof at the trial or other Proceeding relating thereto, and
any such suit, action or proceeding instituted by the Trustee
shall be brought in its name for the benefit of all the Holders,
subject to the terms of the Trust Agreement.
SECTION 10.03. Limitation on Liability of Trustee. The
Trustee assumes no responsibility for the correctness of the
recitals contained in the Trust Agreement, the Units, the Swap
Agreement and the Guarantee, or in any document issued in
connection with the sale of the Units (other than the signature
and authentication on the Units). The sole obligor with respect
to the Debt Securities is the related Debt Security Issuer, with
respect to the Swap Agreement is the Swap Counterparty and with
respect to the Guarantee, is the Guarantor. Except as set forth
in Section 10.12, the Trustee makes no representations or
warranties as to the validity or sufficiency of the Trust
Agreement, the Units (other than the signature and authentication
on the Units), any Debt Security, the Swap Agreement, the
Guarantee or of any related document. The Trustee shall not be
accountable for the use or application by the Depositor of any of
the Units or of the proceeds of such Units, or for the use or
application of any funds paid to the Depositor or the Swap
Counterparty in respect of the Debt Securities. The Units do not
represent interests in or obligations of the Trustee and the
Trustee shall not be responsible or accountable for any tax,
48
accounting or other treatment proposed to be applied to the Units
or any interest therein except as expressly provided in the Trust
Agreement.
SECTION 10.04. Trustee May Own Units. The Trustee in its
individual capacity or any other capacity may become the owner or
pledgee of Units with the same rights it would have if it were
not Trustee.
SECTION 10.05. Trustee Fees and Expenses; Limited
Indemnification. (a) As compensation for its regular and
customary services and in payment of its regular and customary
expenses under the Trust Agreement (including the reasonable
compensation, expenses and disbursements of its counsel for
regular and customary services hereunder) the Trustee shall be
entitled to the Trustee Fees (which shall not be limited by any
provision of law in regard to compensation or payment of a
trustee of an express trust). The Depositor agrees to pay such
Trustee Fees when due in accordance with the Trustee Fee Letter;
provided, however, that, subject to paragraph (b) below, the
Depositor shall be under no obligation to make any other payment
for any other services and expenses, disbursements and advances
of the Trustee.
(b) The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Depositor and
held harmless against any loss, liability or expense incurred in
connection with any Proceeding relating to the Trust Agreement,
the Swap Agreement or the Units or the performance of any of the
Trustee's duties under the Trust Agreement, other than any loss,
liability or expense (i) that constitutes a specific liability of
the Trustee under the Trust Agreement or (ii) incurred by reason
of willful misfeasance, bad faith or negligence in the
performance of the Trustee's duties thereunder or by reason of
reckless disregard of the Trustee's obligations and duties
thereunder (such loss, liability or expense, other than as
described in clauses (i) and (ii) of this sentence,
"Extraordinary Trust Expense"); provided, however, that with
respect to any such Proceeding, (1) the Trustee shall have given
the Depositor notice thereof promptly after the Trustee shall
have knowledge thereof; (2) while maintaining control over its
own defense in any such legal action, the Trustee shall consult
with the Depositor in preparing such defense; (3) if any Person
ever alleges such willful misfeasance, bad faith or negligence by
the Trustee, the indemnification provided for in this paragraph
(b) shall nonetheless be paid upon demand, subject to later
adjustment or reimbursement, until such time as a court of
competent jurisdiction enters a final judgment as to the extent
and effect of the alleged willful misfeasance, bad faith or
negligence; and (4) the Depositor shall in no event be obligated
under the Trust Agreement to indemnify the Trustee for any
Extraordinary Trust Expense to the extent that such Extraordinary
Trust Expense, when aggregated with all Extraordinary Trust
Expense previously indemnified, exceeds the Maximum Reimbursable
Amount. Subject to clause (4) of the proviso to the immediately
preceding sentence, the indemnity for Extraordinary Trust Expense
shall survive the termination or discharge of the Trust Agreement
and the resignation or removal of the Trustee. In the event the
Trustee is not indemnified by the Depositor, whether due to
bankruptcy, insolvency or otherwise, pursuant to the first
sentence of this paragraph, the Trustee shall nevertheless remain
obligated to perform its duties under the Trust Agreement.
(c) The Trustee and the Depositor expressly acknowledge
that the limited obligations of the Depositor to indemnify the
Trustee pursuant to paragraph (b) of this Section do not extend
49
to amounts attributable to compensation for services or payment
of expenses of the Trustee, which amounts are payable in full in
the form of the Trustee Fee.
SECTION 10.06. Eligibility Requirements for Trustee. (a)
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a) and Section (a)(4)(i) of Rule 3a-7 under the
Investment Company Act. The Trustee hereunder shall at all times
be a corporation which is not an Affiliate of the Depositor (but
may have normal banking relationships with the Depositor or any
obligor with respect to the Debt Securities with respect to such
Series of Units and their respective Affiliates) organized and
doing business under the laws of any State or the United States,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State
authority, and the long-term debt obligations of which are rated
in one of the four highest categories assigned long-term debt
obligations by each of the Rating Agencies. If such corporation
or association publishes reports of conditions at least annually,
pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so
published. In the event that at any time the Trustee shall cease
to be eligible in accordance with the terms of this Section, the
Trustee shall resign immediately in the manner and with the
effect specified in Section 10.07.
(b) The Trustee shall comply with Section 310(b) of the
TIA; provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1), any Series under which other
securities are outstanding evidencing ownership interest in
obligations of the Debt Security Issuer if the requirements for
such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 10.07. Resignation or Removal of the Trustee. (a)
Subject to the last sentence of this paragraph (a), the Trustee
may at any time resign and be discharged from the Trust by giving
written notice thereof to the Depositor, the Swap Counterparty
and the Guarantor and to all Unitholders. Upon receiving such
notice or resignation, the Depositor, with the consent of the
Swap Counterparty and the Guarantor which consents shall not be
unreasonably withheld, shall as promptly as possible (and in any
event within 30 days after the date of such notice of
resignation) appoint a successor trustee by written instrument,
in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to the Unitholders, the Swap
Counterparty, the Guarantor and the Rating Agencies by the
Depositor. If no such successor trustee shall have been so
appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor trustee for the Units. Upon any appointment of a
successor trustee pursuant to this paragraph (a), the resigning
Trustee shall be solely liable for (i) the payment of such
successor trustee's fees and expenses and (ii) provision of
adequate indemnities satisfactory to such successor trustee (it
being understood that the indemnification obligations of the
Depositor pursuant to Section 10.05(b) shall inure to the benefit
of such successor trustee, but that any Extraordinary Trust
Expense previously indemnified by the Depositor shall reduce the
Maximum Reimbursable Amount with respect to such successor
trustee on a dollar-for-dollar basis). In the
50
event that the Trustee fails to satisfy the conditions contained
in clauses (i) and (ii) above, the Trustee may not resign
pursuant to this paragraph (a).
(b) If at any time the Trustee shall cease to be eligible
in accordance with the terms of Section 10.06 and shall fail to
resign after written request therefor by the Depositor, or if at
any time the Trustee shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may, with the consent of the Swap
Counterparty and the Guarantor which consents shall not be
unreasonably withheld, remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, which instrument
shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the
Unitholders, the Swap Counterparty, the Guarantor, and the Rating
Agencies by the Depositor.
(c) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the terms
of this Section shall not become effective until acceptance of
appointment by the successor trustee as provided in Section
10.08.
SECTION 10.08. Successor Trustee. (a) Any successor trustee
appointed as provided in Section 10.07 shall execute, acknowledge
and deliver to the Depositor, its predecessor trustee and the
Rating Agencies an instrument accepting such appointment under
the Trust Agreement, and thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and
obligations of its predecessor under the Trust Agreement, with
the like effect as if originally named as trustee in the Trust
Agreement. The predecessor trustee shall deliver to the successor
trustee all documents and statements held by it under the Trust
Agreement, and the Depositor and the predecessor trustee shall
execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers,
duties and obligations. No successor trustee shall accept
appointment as provided in this Section unless at the time of
such acceptance such successor trustee shall be eligible under
the terms of Section 10.06.
(b) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Depositor shall transmit notice
of the succession of such trustee under the Trust Agreement to
all Unitholders in the manner provided pursuant to Section 12.05.
SECTION 10.09. Merger or Consolidation of Trustee. Any
corporation or association into which the Trustee may be merged
or converted or with which it may be consolidated or any
corporation or association resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any
corporation or association succeeding to the business of the
Trustee, shall be the successor of the Trustee under the Trust
Agreement, provided such corporation or association shall be
eligible under the terms of Section 10.06, without the execution
or filing of any paper or any further act on the part of any of
the parties to the Trust Agreement, anything in the Trust
Agreement to the contrary notwithstanding.
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SECTION 10.10. Appointment of Co-Trustee. (a)
Notwithstanding any other terms of the Trust Agreement, at any
time, for the purpose of meeting any legal requirements of any
jurisdiction in which any party of the Trust Property may at the
time be located, the Depositor and the Trustee acting jointly
shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, of all or any part of the Trust Property, and to vest in
such Person or Persons, in such capacity, such title to the Trust
Property, or any part thereof, and, subject to the other terms of
this Section, such powers, duties, obligations, rights and trusts
as the Depositor and the Trustee may consider necessary or
desirable. If the Depositor shall not have joined in such
appointment within 15 days after the receipt by it of a request
so to do, the Trustee alone shall have the power to make such
appointment. No co-trustee under the Trust Agreement shall be
required to meet the terms of eligibility as a successor trustee
under Section 10.06 and no notice to Unitholders of the
appointment of a co-trustee or co-trustees shall be required
under Section 10.08.
(b) In the case of any appointment of a co-trustee pursuant
to this Section, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such
co-trustee jointly, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be
performed by the Trustee, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
title to such Trust Property or any portion thereof in any such
jurisdiction) shall be exercised and performed by such co-trustee
at the direction of the Trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of then
co-trustees, as effectively as if given to each of them. Every
instrument appointment any co-trustee shall refer to the Trust
Agreement and the conditions of this Article X. Each co-trustee,
upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of
appointment, jointly with the Trustee subject to all the terms of
the Trust Agreement, specifically including every provision of
the Trust Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee.
(d) Any co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful
act under or in respect of the Trust Agreement on its behalf and
in its name. If any co-trustee shall die, become incapable of
acting, resign or be removed, all its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment
of a new or successor trustee.
SECTION 10.11. Appointment of Office or Agency. The Units
may be surrendered for registration of transfer or exchange, and
presented for the final distribution with respect thereto, and
notices and demands to or upon the Trustee in respect of the
Units and the Trust Agreement may be served at the Corporate
Trust Office.
52
SECTION 10.12. Representations and Warranties of Trustee.
(a) The Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation or association;
(ii) the Trustee has full power, authority and right
to execute, deliver and perform its duties and obligations
under the Trust Agreement, the Units and the Swap Agreement
and has taken all necessary action to authorize the
execution, delivery and performance by it (or, with respect
to the Units, by an Authenticating Agent on its behalf, if
applicable) of the Trust Agreement, the Units and the Swap
Agreement;
(iii) the execution and delivery of the Trust
Agreement, the Units, the Distribution Agreement and the
Swap Agreement by the Trustee and its performance of and
compliance with the terms of the Trust Agreement, the Units
and the Swap Agreement will not violate the Trustee's
articles of incorporation, association or other
constitutive documents or By-laws or constitute a default
under, or result in the breach or acceleration of, any
material contract, agreement or other instrument to which
the Trustee is a party or which may be applicable to the
Trustee or any of its assets;
(iv) as of the Closing Date, each of the Trust
Agreement, the Units and the Swap Agreement has been duly
executed and delivered by the Trustee (or, with respect to
the Units, by an Authenticating Agent on its behalf, if
applicable) and each of the Trust Agreement and the Swap
Agreement constitutes the legal, valid and binding
obligation of the Trustee, enforceable in accordance with
its terms, except as enforcement may be limited by the
applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of
creditors generally and general principles of equity;
(v) the Trustee is not in violation, and the execution
and delivery of the Trust Agreement, the Swap Agreement and
the Units by the Trustee and its performance and compliance
with respective terms of the Trust Agreement, the Swap
Agreement and the Units will not constitute a violation, of
any order or decree of any court or any order or regulation
of any Federal, State, municipal or governmental agency
having jurisdiction over the Trustee or its properties,
which violation would reasonably be expected to have a
material adverse effect on the condition (financial or
otherwise) or operations of the Trustee or its properties
or on the performance of its duties thereunder;
(vi) there are no actions or proceedings against, or
investigations of, the Trustee pending, or, to the
knowledge of the Trustee, threatened, before any court,
administrative agency or other tribunal (A) that could
reasonably be expected to prohibit its entering into the
Trust Agreement or the Swap Agreement or to render the
Units invalid, (B) seeking to prevent the issuance of the
Units or the consummation of any of the transactions
contemplated by the Trust Agreement or the Swap Agreement
or (C) that could reasonably be expected to prohibit or
materially and adversely affect the
53
performance by the Trustee of its obligations under, or the
validity or enforceability of, the Trust Agreement, the
Swap Agreement or the Units; and
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for
the execution, delivery and performance by the Trustee of,
or compliance by the Trustee with, the Trust Agreement, the
Swap Agreement or the Units, or for the consummation of the
transactions contemplated by the Trust Agreement or the
Swap Agreement, except for such consents, approvals,
authorizations and orders, if any, that have been obtained
prior to the Closing Date.
(b) Within 30 days of the earlier of discovery by the
Trustee or receipt of notice by the Trustee of a breach of any
representation or warranty of the Trustee set forth in this
Section 10.12 that materially and adversely affects the interests
of the Unitholders, the Trustee shall promptly cure such breach
in all material respects.
SECTION 10.13. Limitation of Powers and Duties. The Trust
is constituted solely for the purposes of acquiring and holding
the Debt Securities, entering into the Swap Agreement, accepting
the Guarantee, entering into the Distribution Agreement and
issuing the Units. The Trust may not incur any additional debt
other than the debt that does not constitute a claim against the
Trust to the extent that excess proceeds are insufficient to pay
such debt. The Trustee is not authorized to acquire any other
investments or engage in any activities not authorized in the
Trust Agreement and, in particular, the Trustee is not authorized
(i) to sell, assign, transfer, exchange, pledge, set-off or
otherwise dispose of any of the Debt Securities or interests
therein, including to Unitholders (except upon termination of the
Trust in accordance with Article IX and Article XI of the Trust
Agreement) or (ii) to do anything that would cause the Trust to
fail or cease to qualify as a "grantor trust" for Federal income
tax purposes.
SECTION 10.14. Non-Petition . Prior to the date that is one
year and one day after all distributions in respect of the Units
have been made, neither the Trustee nor the Depositor shall take
any action or institute any proceeding against the other under
the United States Bankruptcy Code or any other liquidation,
insolvency, bankruptcy, moratorium, reorganization or similar law
("Insolvency Law") applicable to either of them, now or hereafter
in effect, or which would be reasonably likely to cause the other
to be subject to, or seek the protection of, any such Insolvency
Law.
ARTICLE XI
Termination
SECTION 11.01. Termination of the Trust. (a) Except as
otherwise provided in Article IX, the respective obligations and
responsibilities under the Trust Agreement of the Depositor and
the Trustee (other than the obligations imposed by Section
10.05(b) and the obligations of the Trustee to provide reports
and other information under the Trust Agreement and to make
distributions to Unitholders as hereafter set forth) shall
terminate upon the distribution to such Holders of all amounts
held in all the Accounts and required to be paid to such Holders
pursuant
54
to the Trust Agreement; provided, however, that in no event shall
the Trust continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Queen Elizabeth
II of England, living on the date of the Trust Agreement.
(b) Written notice of any termination shall be provided to
each Unitholder and the Depositor, the Swap Counterparty, the
Guarantor, each Distribution Participant and the Rating Agencies
pursuant to Section 12.05 within ten Business Days, unless such
termination occurs pursuant to the Scheduled Final Distribution
Date.
(c) On the Scheduled Final Distribution Date, the Trustee
shall distribute to each Holder presenting and surrendering its
Units, and to each Holder delivering such security or indemnity
to the Trustee as the Trustee may require to save the Trustee and
hold the Trustee harmless, the amount distributable on such
Distribution Date pursuant to Section 4.01 in respect of the
Units so presented and surrendered. Any funds not distributed on
such Distribution Date shall be set aside and held in trust for
the benefit of Unitholders either (i) not presenting and
surrendering their Units in the aforesaid manner or (ii) not
delivering such security or indemnity to the Trustee. as the
Trustee may require to save the Trustee and hold the Trustee
harmless, and shall be disposed of in accordance with this
Section and Sections 4.01 and 5.09. Immediately following the
deposit of such funds in trust hereunder, the Trust shall
terminate.
ARTICLE XII
Miscellaneous Terms
SECTION 12.01. Amendment of Trust Agreement. (a) The Trust
Agreement may be amended from time to time by the Depositor and
the Trustee without the consent of any of the Unitholders, upon
delivery by the Depositor of an Opinion of Counsel acceptable to
the Trustee to the effect that such amendment will not adversely
affect in any material respect the interests of any Unitholder,
for any of the following purposes: (i) to cure any ambiguity or
to correct or supplement any provision in the Trust Agreement
which may be defective or inconsistent with any other provision
in the Trust Agreement; (ii) to provide for any other terms or
modify any other terms with respect to matters or questions
arising under the Trust Agreement; (iii) to amend the definitions
of Trigger Amount and Maximum Reimbursable Amount so as to
increase, but not decrease, the respective amounts contained in
such definitions or to otherwise amend or waive the terms of
Section 10.05(b) in any manner which shall not adversely affect
the Unitholders in any material respect; (iv) to amend the
definition of Trustee Fee; (v) to evidence and provide for the
acceptance of appointment under the Trust Agreement by a
successor Trustee; or (vi) to add or change any of the terms of
the Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust; provided, however,
that in the case of any amendment pursuant to any of clauses (i)
through (v) above, the Rating Agency Condition shall be satisfied
with respect to such amendment.
(b) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment
or modification to each Unitholder.
55
(c) Notwithstanding the foregoing, no amendment or
modification to the Trust Agreement shall be permitted unless the
Trustee first receives an Opinion of Counsel that such amendment
or modification will not alter the classification of the Trust
for U.S. federal income tax purposes.
SECTION 12.02. Counterparts. The Trust Agreement may be
executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
SECTION 12.03. Limitation on Rights of Unitholders. (a) The
death or incapacity of any Unitholder shall not operate to
terminate the Trust Agreement or the Trust Property, nor entitle
such Unitholder' legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust Property, nor otherwise
affect the rights, obligations and liabilities of the parties
thereto or any of them.
(b) Except as otherwise expressly provided herein, no
Unitholder shall have any right to control the operation and
management of any Trust Property, or the obligations of the
parties thereto, nor shall anything in the Trust Agreement set
forth, or contained in the terms of the Units, be construed so as
to constitute the Unitholders from time to time as partners or
members of an association; nor shall any Unitholder be under any
liability to any third person by reason of any action taken by
the parties to the Trust Agreement pursuant to any provision
thereof.
(c) No Unitholder shall have any right by virtue of any
provision of the Trust Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to
the Trust Agreement.
SECTION 12.04. Governing Law. The Trust Agreement and each
Unit issued thereunder shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely therein without
reference to such State' principles of conflicts of law to the
extent that the application of the laws of another jurisdiction
would be required thereby, and the obligations, rights and
remedies of the parties thereunder shall be determined in
accordance with such laws.
SECTION 12.05. Notices. All directions, demands and notices
under the Trust Agreement shall be in writing and shall be
delivered to the offices of the Trustee specified in the offering
documents dated as of the Closing Date. Unless otherwise provided
in the Terms Schedule, any notice required to be given to a
holder of a Registered Unit will be given by facsimile to such
number as may be provided to the Trustee or be mailed to the last
address of such holder set forth in the applicable Unit Register.
Any notice so mailed within the time prescribed in the Trust
Agreement shall be conclusively presumed to have been duly given
when mailed, whether or not the Unitholder receives such notice.
Notices given by facsimile will be effective upon confirmation
(including electronic confirmation) of effective transmission.
Notice shall be sufficiently given to Holders of Bearer
Units if (i) published in an "Authorized Newspaper" (which shall
be a leading daily newspaper of general circulation in such
56
city or cities as may be specified in such Units) on a Business
Day and (ii) in the case of a Global Security, if also delivered
to Euroclear or CEDEL, as applicable for communication by them to
the persons shown in their respective records as having interests
therein. In case by reason of suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Units as provided above, then such notification
to Holders of Bearer Units shall be published as provided above
in an Authorized Newspaper of general circulation in Europe or,
if such publication shall also be impracticable, such
notification shall be given in such manner as shall be approved
by the Trustee and the Depositor.
SECTION 12.06. Severability of Terms. If any one or more of
the covenants, agreements or terms of the Trust Agreement shall
be for any reason whatsoever held invalid, then such covenants,
agreements or terms shall be deemed severable from the remaining
covenants, agreements or terms of the Trust Agreement and shall
in no way affect the validity or enforceability of the other
terms of the Trust Agreement or of the Units or the rights of the
Holders thereof.
SECTION 12.07. Notice to Rating Agencies. The Trustee shall
use its best efforts promptly to provide notice to the Rating
Agencies with respect to each of the following of which it has
actual knowledge:
(i) any material change or amendment to the Trust
Agreement;
(ii) the occurrence of any Swap Default or Termination
Event;
(iii) the resignation or termination of the Trustee;
(iv) the final payment to Holders of the Units;
(v) any change in the location of the Unit Account;
and
(vi) any Debt Security Default.
In addition, the Trustee shall promptly furnish to the Rating
Agencies copies of each report to Unitholders described in
Section 4.02. Any such notice pursuant to this Section shall be
in writing and shall be deemed to have been duly given if
personally delivered or mailed by first class mail, postage
prepaid, or by express delivery service to the Rating Agencies at
the addresses set forth in the Terms Schedule
SECTION 12.08. Perfection of Swap Counterparty Security
Interest. At the request of the Swap Counterparty, the Trustee
will assist the Swap Counterparty in the perfection of the
security interest in the Trust Property described in Section 3.04
and granted by the Trust to the Counterparty under the Swap
Agreement.
57
SECTION 12.09. No Recourse. Each Unitholder by accepting a
Unit acknowledges that such Unitholder's Units represent
beneficial interests in the Trust only and do not represent
interests in or obligations of the Depositor, the Trustee, the
Swap Counterparty, the Guarantor or any Affiliate of the
foregoing Persons and no recourse may be had against such Persons
or their respective assets, except as may be expressly set forth
in the Trust Agreement, the Swap Agreement or the Units.
SECTION 12.10. 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 the 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.
(c) Except as expressly provided in this Agreement, all
provisions specifically referencing the TIA shall be inapplicable
until such time as this Agreement is qualified under the TIA.
58
IN WITNESS WHEREOF, the Depositor and the Trustee have
caused this instrument to be duly executed by their respective
officers thereunto duly authorized as of the date first above
written.
MSDW STRUCTURED ASSET CORP.
By________________________________
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee on
behalf of the Trust identified
in Schedule I to the Trust
Agreement dated today's date,
and not in its individual
capacity
By________________________________
Name:
Title:
59
EXHIBIT A
TRUST AGREEMENT
TRUST AGREEMENT made as of the date set forth in
Schedule I attached hereto, which Schedule together with
Schedules II and III attached hereto, are made a part hereof and
are hereinafter referred to collectively as the "Terms Schedule".
The terms of the Standard Terms for Trust Agreements, dated
September __, 1998 (the "Standard Terms"), executed by Chase Bank
of Texas, National Association, as trustee (the "Trustee"), and
MSDW Structured Asset Corp. (the "Depositor") are, except to the
extent otherwise expressly stated, hereby incorporated by
reference herein in their entirety with the same force and effect
as though set forth herein. Capitalized terms used herein and not
defined shall have the meanings defined in the Standard Terms.
References to "herein", "hereunder", "this Trust Agreement" and
the like shall include the Terms Schedule attached hereto and the
Standard Terms so incorporated by reference.
WHEREAS, the Depositor and the Trustee desire to
establish the Trust identified in Schedule I attached hereto (the
"Trust") for the primary purposes of (i) holding the Debt
Securities, (ii) entering into any Swap Agreement with the Swap
Counterparty and (iii) issuing the Units;
WHEREAS, the Depositor desires that the respective
beneficial interests in the Trust be divided into transferable
fractional shares, such shares to be represented by the Units;
and
WHEREAS, the Depositor desires to appoint the Trustee
as trustee of the Trust and the Trustee desires to accept such
appointment;
WHEREAS, the Depositor shall transfer, convey and
assign to the Trust without recourse, and the Trust shall
acquire, all of the Depositor's right, title and interest in and
under the Debt Securities and other property identified in
Schedule II to the Trust Agreement (the "Trust Property"); and
WHEREAS, the Trust agrees to acquire the Trust
Property specified herein in consideration for Units having an
initial Unit Principal Balance identified in Schedule I attached
hereto, subject to the terms and conditions specified in the
Trust Agreement;
NOW THEREFORE, the Depositor hereby appoints the
Trustee as trustee hereunder and hereby requests the Trustee to
receive the Debt Securities from the Depositor and to issue in
accordance with the instructions of the Depositor Units having an
initial Unit Principal Balance identified in Schedule I attached
hereto, and the Trustee accepts such appointment and, for itself
and its successors and assigns, hereby declares that it shall
hold all the estate, right, title and interest in any property
contributed to the trust account established hereunder (except
property to be applied to the payment or reimbursement of or by
the Trustee for any fees or expenses which under the terms hereof
is to be so applied) in trust for the benefit of all present and
future Holders of the
fractional shares of beneficial interest issued hereunder,
namely, the Unitholders, and subject to the terms and provisions
hereof and of the Standard Terms.
IN WITNESS WHEREOF, each of the undersigned has
executed this instrument as of the date set forth in the Terms
Schedule attached hereto.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION as Trustee on behalf of
the Trust identified in Schedule I
hereto, and not in its individual
capacity
By: ____________________________
Name:
Title:
MSDW STRUCTURED ASSET CORP.
By: ____________________________
Name:
Title:
Attachments: Terms Schedule (consisting
of Schedules I, II and III)
A-2
Schedule I
(Terms of Trust and Units)
Trust: Structured Asset Trust Unit
Repackagings Series 199_-_
Date of Trust Agreement:
Trustee:
Initial Unit Principal
Balance:
Issue Price:
Cut-off Date:
Closing Date:
Specified Currency:
Business Day:
Pass Through Rate: [Swap Rate]
Interest Reset Period: [Each Swap Rate Accrual Period]
Rating:
Rating Agencies:
Scheduled Final
Distribution Date:
Swap Agreement: [The ISDA Agreement referred
to in Schedule III]
Swap Counterparty: [Party A to the Swap Agreement
referred to in Schedule III]
Guarantee:
Swap Notional Amount: [The Notional Amount specified
in Schedule III]
Swap Payment Date: [Each Payment Date specified
in Schedule III for Party A]
A-3
Swap Rate: [The [Fixed][Floating] Rate
specified in Schedule III for
the applicable Calculation
Period under the Swap Agreement,
plus or minus the Spread
specified in Schedule III].
Distribution Date:
Record Date:
Form: [Global/Definitive]
[Registered/Bearer]
Depositary:
Alternative ERISA
Restrictions: [Apply][Do Not Apply]
Deemed Representations: [Apply][Do Not Apply]
Additional Trust
Wind-Up Event:
Exchangeable Series
Terms:
Terms of Retained
Interest:
Call Option Terms:
Other Terms:
A-4
Schedule II
(Terms of Trust Property)
Concentrated Debt Securities:
Debt Securities:
Debt Security Issuer:
Principal Amount:
Debt Security Rate:
Credit Ratings:
Listing:
Debt Security Agreement:
Events of Default:
Form:
Currency of
Denomination:
Acquisition Price Units having an initial
by Trust: Unit Principal Balance of
[$______].
Debt Security Payment Date:
Original Issue Date:
Maturity Date:
Sinking Fund Terms:
Redemption Terms:
CUSIP No.:/ISIN No.
Debt Security Trustee:
A-5
Available Information [[name of issuer of Debt Securi-
Regarding the Debt ties] is subject to the informa-
Security Issuer. tional requirements of the Secu-
(if other than U.S rities Exchange Act of 1934, as
Treasury obligations): amended, and in accordance
therewith files reports and
other information with the
Securities and Exchange
Commission (the "Commission").
Such reports and other
information can be inspected and
copied at the public reference
facilities maintained by the
Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 and
at the following Regional
Offices of the Commission: 7
World Trade Center, 13th Floor,
New York, New York 10048 and
Northwest Atrium Center, 500
West Madison Street, Chicago,
Illinois 60661. Copies of such
materials can be obtained from
the Public Reference Section of
the Commission at 450 Fifth
Street, N.W., Washington, D.C.
20549 at prescribed rates.] [In
addition, [attached to the
Prospectus is a copy of] [[name
of issuer of Debt Securities]
has also filed with the
Commission] a Prospectus, dated
________ __, 19__, relating to
the original offering of the
Debt Securities.] Cut-Off Date:
Description of Credit
Support:
Other Trust Property:
A-6
Schedule III
(Swap Terms)
A-7
EXHIBIT B1
FORM OF REGISTERED UNIT
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
TRUST UNITS, SERIES ____
[THIS CERTIFICATE IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS UNIT IS EXCHANGEABLE FOR UNITS REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO TRUSTEE 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.]
THIS UNIT MAY BE SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS PROVIDED IN THE TRUST AGREEMENT FOR THE TRUST TO WHICH
THIS UNIT RELATES.
THIS UNIT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED THEREIN AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
UNLESS THE TERMS SCHEDULE TO THE TRUST AGREEMENT
PROVIDES THAT THE ALTERNATIVE ERISA RESTRICTIONS OR DEEMED
REPRESENTATIONS APPLY, EACH PURCHASER OR TRANSFEREE OF THIS UNIT
OR ANY INTEREST HEREIN REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT PLAN, DOMESTIC OR FOREIGN, WHETHER OR NOT
SUBJECT TO ERISA, OR DESCRIBED IN SECTION 4975(E)(1) OF THE CODE,
OR COMPARABLE
PROVISIONS OF ANY SUBSEQUENT ENACTMENTS, OR A TRUSTEE OF ANY SUCH
PLAN, OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF
ANY SUCH PLAN (EACH OF THE FOREGOING A "BENEFIT PLAN"), UNLESS
THE BENEFIT PLAN IS NOT SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF PART 4, SUBTITLE A, TITLE I OF ERISA, DESCRIBED IN
SECTION 4975(E)(1) OF THE CODE OR SUBJECT TO SUBSTANTIALLY
SIMILAR LEGAL REQUIREMENTS (AN "ERISA BENEFIT PLAN"). AS USED
HEREIN, THE TERM "CODE" MEANS THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, AND "ERISA" MEANS THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, IN EACH CASE INCLUDING ANY
SUCCESSOR OR AMENDATORY STATUTES.
IF THE TERMS SCHEDULE TO THE TRUST AGREEMENT PROVIDES
THAT DEEMED REPRESENTATIONS APPLY, EACH PURCHASER OR TRANSFEREE
OF THIS UNIT OR ANY INTEREST HEREIN REPRESENTS AND WARRANTS THAT
EITHER (A) THE PURCHASER IS NOT AN ERISA PLAN OR OTHER PLAN, AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY SUCH
ERISA PLAN OR OTHER PLAN, OR A GOVERNMENTAL PLAN WHICH IS SUBJECT
TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR
TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR (B) ITS PURCHASE, HOLDING AND DISPOSITION OF A UNIT WILL
NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL
PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL, STATE, OR LOCAL LAW) FOR
WHICH AN EXEMPTION IS NOT AVAILABLE OR (C) THE PURCHASER IS AN
INSURANCE COMPANY ACQUIRING THE UNIT(S) FOR ITS GENERAL ACCOUNT
WHICH IS AN INSURANCE COMPANY GENERAL ACCOUNT AS SUCH TERM IS
USED IN PTCE 95-60 ISSUED BY THE UNITED STATES DEPARTMENT OF
LABOR AND THERE IS NO EMPLOYEE BENEFIT PLAN (TREATING AS A SINGLE
PLAN ALL PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION) WITH RESPECT TO WHICH THE AMOUNT OF THE GENERAL
ACCOUNT RESERVES AND LIABILITIES FOR ALL CONTRACTS HELD BY OR ON
BEHALF OF SUCH PLAN EXCEEDS 10% OF THE TOTAL RESERVES AND
LIABILITIES OF SUCH GENERAL ACCOUNT (EXCLUSIVE OF SEPARATE
ACCOUNT LIABILITIES) PLUS SURPLUS, AS SET FORTH IN THE NAIC
ANNUAL STATEMENTS FILED WITH ITS STATE OF DOMICILE.
UNLESS THE ALTERNATIVE ERISA RESTRICTIONS OR DEEMED
REPRESENTATIONS APPLY, THE PURCHASER AND EACH OTHER PERSON WHO
ACQUIRES A UNIT, AND EACH FIDUCIARY WHICH CAUSES A PERSON TO
ACQUIRE A UNIT, IN SUCH FIDUCIARY'S INDIVIDUAL CAPACITY, HEREBY
AGREES TO INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, THE SWAP
COUNTERPARTY, THE TRUSTEE AND THEIR AFFILIATES FROM ANY COST,
DAMAGE, LOSS OR EXPENSE INCURRED BY THEM AS A RESULT OF SUCH
PERSON BEING OR BEING DEEMED TO BE AN ERISA BENEFIT PLAN.
B1-2
IF THE TERMS SCHEDULE TO THE TRUST AGREEMENT PROVIDES THAT THE
ALTERNATIVE ERISA RESTRICTIONS APPLY, EACH PROSPECTIVE TRANSFEREE
OF THE UNITS PURCHASED PURSUANT TO THIS PURCHASE AGREEMENT SHALL
BE REQUIRED TO CERTIFY WHETHER OR NOT IT IS A BENEFIT PLAN OR AN
ERISA BENEFIT PLAN.
B1-3
REGISTERED INITIAL AMOUNT: $__________
No. ______ AGGREGATE INITIAL
CUSIP No. ___________ AMOUNT OF ALL UNITS: $_________
FRACTIONAL SHARE: ___%
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
SERIES ___
This certifies that _________________________ is the
registered owner of an undivided fractional interest in the Trust
Property referred to below. The amount due on this Unit on any
Distribution Date is determined by multiplying the Fractional
Share hereby represented by the amount of Distribution, reduced
by prior payments of the fees and expenses of and any other
applicable amounts payable to the Trustee and Depositor out of
Available Funds, on such Distribution Date.
The Trust Property will be held in trust by the
Trustee identified in Schedule I hereto (the "Trust"). The Trust
has been created pursuant to a Trust Agreement (the "Trust
Agreement"), executed as of the date set forth in Schedule I
hereto between Chase Bank of Texas, National Association, as
Trustee of the Trust (the "Trustee"), and MSDW Structured Asset
Corp.
To the extent not defined herein, all capitalized
terms shall have the meanings assigned to such terms in the Trust
Agreement and the Terms Schedule attached thereto. This Unit is
one of the Units described in the Trust Agreement and is issued
under and subject to the terms, provisions and conditions of the
Trust Agreement. Certain of those terms are set forth in Schedule
I hereto. By acceptance of this Unit, the Holder assents to and
becomes bound by the Trust Agreement.
The Trust Property consists of the Debt Securities,
the Swap Agreement and any Permitted Investments. Pursuant to the
Trust Agreement, the Trust has granted a first priority security
interest in such Trust Property to the Swap Counterparty to
secure the payment of any amounts owed by the Trust to the Swap
Counterparty pursuant to the Swap Agreement.
Subject to the terms and conditions of the Trust
Agreement (including the availability of funds for distributions
and any grace period or cure period applicable to the Trust
Property) and to the prior obligation of the Trust to pay (i) all
amounts due to the Swap Counterparty pursuant to the Swap
Agreement and (ii) all unpaid Extraordinary Trust Expenses, and
until the obligations created by the Trust Agreement shall have
terminated in accordance therewith, there will be distributed on
each Distribution Date specified in Schedule I hereto, to the
Person in whose name this Unit is registered at the close of
business on the second Business Day immediately preceding such
Distribution Date (the "Record Date"), such Unitholder's
fractional undivided interest in the amounts to be distributed to
Unitholders pursuant to the Trust Agreement on such Distribution
Date. The amount to be distributed on the Scheduled Final
Distribution Date will include the full repayment of principal;
provided, however, that if the
B1-4
applicable Debt Securities are not redeemed on the Scheduled
Final Distribution Date, a Unitholder will be entitled to receive
an in kind distribution of the Notes.
Distributions on this Certificate (so long as the
original principal amount hereof is not less than $10,000,000)
will be made by wire transfer in accordance with a written notice
to the Trustee providing appropriate wire transfer instructions
given no later than 15 calendar days prior to the applicable
Distribution Date. If no such notice has been given,
distributions will be made by the Trustee by check mailed to the
Unitholder of record at its address as it appears in the Unit
Register without the presentation or surrender of this
Certificate or the making of any notation hereon, by wire
transfer of immediately available funds. Except as otherwise
provided in the Trust Agreement and notwithstanding the above,
the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the
office or agency maintained for that purpose by the Trustee in
the Borough of Manhattan, The City of New York.
This Certificate does not purport to summarize the
Trust Agreement and reference is hereby made to the Trust
Agreement for information with respect to the rights, benefits,
obligations and duties evidenced thereby. A copy of the Trust
Agreement may be examined during normal business hours at the
Corporate Trust Office of the Trustee, located at 600 Travis
Street, 8th Floor, Chase Tower, Houston, Texas 77002, the
Trustee's offices at 55 Water Street, North Building, Room 234,
Windows 20 and 21, New York, New York 10041, and at such other
places, if any, designated by the Trustee, by any Unitholder upon
request.
This Certificate and the Units represented hereby are
subject to redenomination in connection with European Monetary
Union as provided in Section 5.08 of the Trust Agreement.
Reference is hereby made to the further terms of this
Certificate set forth on the reverse hereof, which further terms
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon shall
have been executed by an authorized officer of the Trustee, by
manual signature, this Certificate shall not entitle the Holder
hereof to any benefit under the Trust Agreement or be valid for
any purpose.
B1-5
IN WITNESS WHEREOF, the Trustee, on behalf of the
Trust, and not in its individual capacity, has caused this
Certificate to be duly executed.
SETS TRUST NO. ___
By: CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: ______________________________
Authorized Signatory
DATED:
[SEAL]
Trustee's Certificate of
Authentication:
This is one of the Units referred to in the
within-mentioned Agreement.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: ____________________________
Authorized Signatory
Attachment: Schedule I
[Schedule I, not repeated here, shall be identical to the
Schedule I attached to the Trust Agreement, a form of which is
Exhibit A to the Standard Terms.]
B1-6
[REVERSE OF UNIT CERTIFICATE]
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
SERIES ___
The Trust Agreement permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any
of the Certificates.
As provided in the Trust Agreement and subject to
certain limitations therein set forth, the transfer of this
Certificate is registerable in the Unit Register upon surrender
of this Certificate for registration of transfer at the office or
agency maintained by the Trustee in the Borough of Manhattan, The
City of New York, accompanied by a written instrument of transfer
and a Distribution Agreement in form and substance satisfactory
to the Trustee duly completed and executed by the Holder hereof
or such Holder' attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee.
As provided in the Trust Agreement and subject to
certain limitations therein set forth, Certificates are
exchangeable for new Certificates representing different numbers
of Units which evidence the same aggregate interest in the Trust,
as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient
to cover any tax or governmental charges payable in connection
therewith.
The Depositor, the Trustee and any agent of the
Depositor or the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Trustee, or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the
Trust Agreement and the Trust created thereby will terminate upon
the payment to Unitholders of all amounts required to be paid to
them pursuant to the Trust Agreement.
Notwithstanding anything contained in the Trust
Agreement to the contrary the Trust Agreement has been accepted
by Chase Bank of Texas, National Association not in its
individual capacity but solely as Trustee and in no event shall
Chase Bank of Texas, National Association have any liability for
the representations, warranties, covenants, agreements or other
obligations of the Depositor thereunder or in any of the
certificates, notices or agreements delivered pursuant thereto,
as to all of which recourse shall be had solely to the assets of
the Depositor, and under no circumstances shall Chase Bank of
Texas, National Association be personally liable for the payment
of any indebtedness or expenses of the Trust. The Units do not
represent interests in or obligations of the Trustee and the
Trustee shall not be responsible or accountable for any tax,
accounting or other treatment proposed to be applied to the Units
or any interest therein except as expressly provided in the Trust
Agreement.
B1-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
_________________________________________________________________
the within Certificate, and all rights thereunder,
hereby irrevocably constituting and appointing
_________________________________________________________________
Attorney to transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the
premises.
Dated:
_______________________________ */
Signature Guaranteed:
_______________________________ */
- ---------------
*/ NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within
Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a
member of the New York Stock Exchange or a commercial bank or
trust company.
B1-8
OPTION TO ELECT EXCHANGE
The undersigned hereby irrevocably requests and
instructs the Trustee to effect exchange of this Unit for the
Trust Property in which this Unit evidences a beneficial interest
(or portion thereof specified below) pursuant to its terms and in
accordance with the Term Schedule and Section 5.12 of the Trust
Agreement, to be delivered to the undersigned, at
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite name and address of the
undersigned.)
If less than the entire Unit Principal Balance of this
Unit is to be redeemed, specify the portion thereof which the
Holder elects to have exchanged: ___________________; and specify
the denomination or denominations (which shall not be less than
the minimum authorized denomination) of the Units to be issued to
the Holder for the portion of the within Units not being
exchanged (in the absence of any such specification, one such
Unit will be issued for the portion not being redeemed):
Dated: __________________
B1-9
EXHIBIT B2
FORM OF BEARER UNIT
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
TRUST UNITS, SERIES ____
[THIS CERTIFICATE IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO. THIS UNIT IS
EXCHANGEABLE FOR DEFINITIVE BEARER UNITS ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. FOLLOWING THE
AVAILABILITY OF A PERMANENT GLOBAL SECURITY IN BEARER FORM (IF
THIS UNIT IS A TEMPORARY GLOBAL SECURITY) OR DEFINITIVE BEARER
UNITS, AND SUBJECT TO ANY FURTHER LIMITATIONS DESCRIBED IN THE
TERMS SCHEDULE, THIS GLOBAL SECURITY WILL BE EXCHANGEABLE FOR
INTERESTS IN SUCH PERMANENT GLOBAL SECURITY OR FOR DEFINITIVE
BEARER UNITS, RESPECTIVELY, ONLY UPON RECEIPT OF A CERTIFICATE
ACCEPTABLE TO THE DEPOSITOR AND THE TRUSTEE TO THE EFFECT THAT A
BENEFICIAL INTEREST IN THIS GLOBAL SECURITY IS OWNED BY A PERSON
THAT IS NOT A U.S. PERSON OR IS OWNED BY OR THROUGH A FINANCIAL
INSTITUTION IN COMPLIANCE WITH APPLICABLE U.S. TREASURY
REGULATIONS (A "CERTIFICATE OF NON-U.S. BENEFICIAL OWNERSHIP").]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(J) AND 1287(A)
OF THE INTERNAL REVENUE CODE.
THIS UNIT MAY BE SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS PROVIDED IN THE TRUST AGREEMENT FOR THE TRUST TO
WHICH THIS UNIT RELATES.
THIS UNIT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED THEREIN AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
[IF SO SPECIFIED IN THE TERMS SCHEDULE, INTEREST ON THIS
TEMPORARY GLOBAL SECURITY WILL BE DISTRIBUTED TO EACH OF
EUROCLEAR AND CEDEL WITH RESPECT TO THAT PORTION OF SUCH
TEMPORARY GLOBAL SECURITY HELD FOR ITS ACCOUNT, BUT ONLY UPON
RECEIPT AS OF THE RELEVANT DISTRIBUTION DATE OF A CERTIFICATE OF
NON- U.S. BENEFICIAL OWNERSHIP.]
UNLESS THE TERMS SCHEDULE TO THE TRUST AGREEMENT
PROVIDES THAT THE DEEMED REPRESENTATIONS APPLY, EACH PURCHASER OR
TRANSFEREE OF THIS UNIT OR ANY INTEREST HEREIN REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN, DOMESTIC OR
FOREIGN, WHETHER OR NOT SUBJECT TO ERISA, OR DESCRIBED IN SECTION
4975(E)(1) OF THE CODE, OR COMPARABLE PROVISIONS OF ANY
SUBSEQUENT ENACTMENTS, OR A TRUSTEE OF ANY SUCH PLAN, OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY SUCH
PLAN (EACH OF THE FOREGOING A "BENEFIT PLAN"), UNLESS THE BENEFIT
PLAN IS NOT SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
PART 4, SUBTITLE A, TITLE I OF ERISA, DESCRIBED IN SECTION
4975(E)(1) OF THE CODE OR SUBJECT TO SUBSTANTIALLY SIMILAR LEGAL
REQUIREMENTS (AN "ERISA BENEFIT PLAN"). AS USED HEREIN, THE TERM
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND
"ERISA" MEANS THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, IN EACH CASE INCLUDING ANY SUCCESSOR OR
AMENDATORY STATUTES.
IF THE TERMS SCHEDULE TO THE TRUST AGREEMENT PROVIDES THAT DEEMED
REPRESENTATIONS APPLY, EACH PURCHASER OR TRANSFEREE OF THIS UNIT
OR ANY INTEREST HEREIN REPRESENTS AND WARRANTS THAT EITHER (A)
THE PURCHASER IS NOT AN ERISA PLAN OR OTHER PLAN, AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY SUCH ERISA PLAN OR
OTHER PLAN, OR A GOVERNMENTAL PLAN WHICH IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE
PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR
(B) ITS PURCHASE, HOLDING AND DISPOSITION OF A UNIT WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN,
ANY SUBSTANTIALLY SIMILAR FEDERAL, STATE, OR LOCAL LAW) FOR WHICH
AN EXEMPTION IS NOT AVAILABLE OR (C) THE PURCHASER IS AN
INSURANCE COMPANY ACQUIRING THE UNIT(S) FOR ITS GENERAL ACCOUNT
WHICH IS AN INSURANCE COMPANY GENERAL ACCOUNT AS SUCH TERM IS
USED IN PTCE 95-60 ISSUED BY THE UNITED STATES DEPARTMENT OF
LABOR AND THERE IS NO EMPLOYEE BENEFIT PLAN (TREATING AS A SINGLE
PLAN ALL PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION) WITH RESPECT TO WHICH THE AMOUNT OF THE GENERAL
ACCOUNT RESERVES AND LIABILITIES FOR ALL CONTRACTS HELD BY OR ON
BEHALF OF SUCH PLAN EXCEEDS 10% OF THE TOTAL RESERVES AND
LIABILITIES OF SUCH GENERAL ACCOUNT (EXCLUSIVE OF SEPARATE
ACCOUNT LIABILITIES) PLUS SURPLUS, AS SET FORTH IN THE NAIC
ANNUAL STATEMENTS FILED WITH ITS STATE OF DOMICILE.
NOTWITHSTANDING THE TWO PRECEDING SECTIONS, UNLESS THE DEEMED
REPRESENTATIONS APPLY, THE PURCHASER AND EACH OTHER PERSON WHO
ACQUIRES A UNIT, AND EACH FIDUCIARY WHICH CAUSES A PERSON TO
ACQUIRE A UNIT, IN SUCH FIDUCIARY'S INDIVIDUAL CAPACITY, HEREBY
AGREES TO
B2-2
INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, THE SWAP COUNTERPARTY,
THE TRUSTEE AND THEIR AFFILIATES FROM ANY COST, DAMAGE, LOSS OR
EXPENSE INCURRED BY THEM AS A RESULT OF SUCH PERSON BEING OR
BEING DEEMED TO BE AN ERISA BENEFIT PLAN.
B2-3
INITIAL AMOUNT: $__________
No. ______ AGGREGATE INITIAL
CUSIP No. ___________ AMOUNT OF ALL UNITS: $_________
FRACTIONAL SHARE: ___%
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
SERIES ___
This certifies that the bearer hereof is the owner of
an undivided fractional interest in the Trust Property referred
to below. The amount due on this Unit on any Distribution Date is
determined by multiplying the Fractional Share hereby represented
by the amount of Distribution, reduced by prior payments of the
fees and expenses of and any other applicable amounts payable to
the Trustee and Depositor out of Available Funds, on such
Distribution Date.
The Trust Property will be held in trust by the
Trustee identified in Schedule I hereto (the "Trust"). The Trust
has been created pursuant to a Trust Agreement (the "Trust
Agreement"), executed as of the date set forth in Schedule I
hereto between Chase Bank of Texas, National Association, as
Trustee of the Trust (the "Trustee"), and MSDW Structured Asset
Corp.
To the extent not defined herein, all capitalized
terms shall have the meanings assigned to such terms in the Trust
Agreement and the Terms Schedule attached thereto. This Unit is
one of the Units described in the Trust Agreement and is issued
under and subject to the terms, provisions and conditions of the
Trust Agreement. Certain of those terms are set forth in Schedule
I hereto. By acceptance of this Unit, the Holder assents to and
becomes bound by the Trust Agreement.
The Trust Property consists of the Debt Securities,
the Swap Agreement and any Permitted Investments. Pursuant to the
Trust Agreement, the Trust has granted a first priority security
interest in such Trust Property to the Swap Counterparty to
secure the payment of any amounts owed by the Trust to the Swap
Counterparty pursuant to the Swap Agreement.
Subject to the terms and conditions of the Trust
Agreement (including the availability of funds for distributions
and any grace period or cure period applicable to the Trust
Property) and to the prior obligation of the Trust to pay (i) all
amounts due to the Swap Counterparty pursuant to the Swap
Agreement and (ii) all unpaid Extraordinary Trust Expenses, and
until the obligations created by the Trust Agreement shall have
terminated in accordance therewith, there will be distributed on
each Distribution Date specified in Schedule I hereto, to the
bearer of this Unit, against the presentation hereof at an office
or agency of the Trustee outside the United States, such
Unitholder's fractional undivided interest in the amounts to be
distributed to Unitholders pursuant to the Trust Agreement on
such Distribution Date. The amount to be distributed on the
Scheduled Final Distribution Date will include the full repayment
of principal; provided, however, that if the applicable Debt
Securities are not redeemed on the Scheduled Final Distribution
Date, a Unitholder will be entitled to receive an in kind
distribution of the Notes.
B2-4
Distributions on this Certificate (so long as the
original principal amount hereof is not less than $10,000,000)
will be by check or by wire transfer in accordance with a written
instruction of the bearer hereof on the applicable Distribution
Date. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained
for that purpose by the Trustee outside the United States.
This Certificate does not purport to summarize the
Trust Agreement and reference is hereby made to the Trust
Agreement for information with respect to the rights, benefits,
obligations and duties evidenced thereby. A copy of the Trust
Agreement may be examined during normal business hours at the
Corporate Trust Office of the Trustee, located at 600 Travis
Street, 8th Floor, Chase Tower, Houston, Texas 77002, the
Trustee's offices at 55 Water Street, North Building, Room 234,
Windows 20 and 21, New York, New York 10041, and at such other
places, if any, designated by the Trustee, by any Unitholder upon
request.
This Certificate and the Units represented hereby are
subject to redenomination in connection with European Monetary
Union as provided in Section 5.08 of the Trust Agreement.
The city or cities with respect to which notice may be
given, subject to Section 12.05 of the Trust Agreement, by
publication in an Authorized Newspaper in connection with this
Unit and the Trust Agreement are ________________.
Reference is hereby made to the further terms of this
Certificate set forth on the reverse hereof, which further terms
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon shall
have been executed by an authorized officer of the Trustee, by
manual signature, this Certificate shall not entitle the Holder
hereof to any benefit under the Trust Agreement or be valid for
any purpose.
B2-5
IN WITNESS WHEREOF, the Trustee, on behalf of the
Trust, and not in its individual capacity, has caused this
Certificate to be duly executed.
SETS TRUST NO. ___
By: CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: ______________________________
Authorized Signatory
DATED:
[SEAL]
Trustee's Certificate of
Authentication:
This is one of the Units referred to in the
within-mentioned Agreement.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: ____________________________
Authorized Signatory
Attachment: Schedule I
[Schedule I, not repeated here, shall be identical to the
Schedule I attached to the Trust Agreement, a form of which is
Exhibit A to the Standard Terms.]
B2-6
[REVERSE OF UNIT CERTIFICATE]
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
SERIES ___
The Trust Agreement permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any
of the Certificates.
As provided in the Trust Agreement and subject to
certain limitations therein set forth, Certificates are
exchangeable for new Certificates representing different numbers
of Units which evidence the same aggregate interest in the Trust,
as requested by the Holder surrendering the same. No service
charge will be made for any such exchange, but the Trustee may
require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
The obligations and responsibilities created by the
Trust Agreement and the Trust created thereby will terminate upon
the payment to Unitholders of all amounts required to be paid to
them pursuant to the Trust Agreement.
Notwithstanding anything contained in the Trust
Agreement to the contrary the Trust Agreement has been accepted
by Chase Bank of Texas, National Association not in its
individual capacity but solely as Trustee and in no event shall
Chase Bank of Texas, National Association have any liability for
the representations, warranties, covenants, agreements or other
obligations of the Depositor thereunder or in any of the
certificates, notices or agreements delivered pursuant thereto,
as to all of which recourse shall be had solely to the assets of
the Depositor, and under no circumstances shall Chase Bank of
Texas, National Association be personally liable for the payment
of any indebtedness or expenses of the Trust. The Units do not
represent interests in or obligations of the Trustee and the
Trustee shall not be responsible or accountable for any tax,
accounting or other treatment proposed to be applied to the Units
or any interest therein except as expressly provided in the Trust
Agreement.
B2-7
OPTION TO ELECT EXCHANGE
The undersigned hereby irrevocably requests and
instructs the Trustee to effect exchange of this Unit for the
Trust Property in which this Unit evidences a beneficial interest
(or portion thereof specified below) pursuant to its terms and in
accordance with the Term Schedule and Section 5.12 of the Trust
Agreement, to be delivered to the undersigned, at
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite name and address of the
undersigned.)
If less than the entire Unit Principal Balance of this
Unit is to be redeemed, specify the portion thereof which the
Holder elects to have exchanged: ___________________; and specify
the denomination or denominations (which shall not be less than
the minimum authorized denomination) of the Units to be issued to
the Holder for the portion of the within Units not being
exchanged (in the absence of any such specification, one such
Unit will be issued for the portion not being redeemed):
Dated: __________________