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
SECTION 2.01. Creation and Declaration of Trust; Assignment of Securities...13
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 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.............................................19
SECTION 3.08. Access to Certain Documentation...............................19
ARTICLE IV
Distributions and Reports to Unitholders
SECTION 4.01. Distributions.................................................20
SECTION 4.02. Reports to Unitholders........................................20
SECTION 4.03. Calculation of Interest Rates.................................22
SECTION 4.04. Compliance with Tax Reporting and Withholding Requirements....22
SECTION 4.05. Preservation of Information, Communications to Holders........22
ARTICLE V
The Units
SECTION 5.01. The Units.....................................................23
SECTION 5.02. Execution, Authentication and Delivery........................23
SECTION 5.03. Registration; Registration of Transfer and Exchange...........24
SECTION 5.04. Mutilated, Destroyed, Lost and Stolen Units...................25
SECTION 5.05. Distributions in Respect of Units.............................26
SECTION 5.06. Persons Deemed Owners.........................................26
SECTION 5.07. Cancellation..................................................27
SECTION 5.08. Currency of Distributions in Respect of Units;
Redenomination................................................27
SECTION 5.09. Appointment of Paying Agent...................................27
SECTION 5.10. Authenticating Agent..........................................28
SECTION 5.11. Issuance and Transfer Restrictions............................29
SECTION 5.12. Optional Exchange.............................................31
SECTION 5.13. Limitation on Issuance of Bearer Units........................33
SECTION 5.14. Callable Units................................................34
SECTION 5.15. Delivery of Information.......................................34
ARTICLE VI
The Depositor
SECTION 6.01. Liability of the Depositor....................................35
SECTION 6.02. Limitation on Liability of the Depositor......................35
SECTION 6.03. Depositor May Purchase Units..................................35
SECTION 6.04. Preparation and Filing of Exchange Act Reports;
Obligations of the Depositor..................................35
SECTION 6.05. Preferential Collection of Claims Against Depositor...........36
ARTICLE VII
Rights of Unitholders
SECTION 7.01. Voting Rights with Respect to Securities......................36
SECTION 7.02. Amendments and Waivers Under Swap
Agreement and Guarantee.......................................37
ARTICLE VIII
Default on Securities and Permitted Investments
SECTION 8.01. Realization Upon Default......................................37
ARTICLE IX
Trust Wind-Up Events
SECTION 9.01. Trust Wind-Up Events..........................................38
SECTION 9.02. Liquidation Events............................................39
SECTION 9.03. Trust Property Made Available.................................39
SECTION 9.04. Limitation on Notice Requirement..............................42
SECTION 9.05. Expense Event.................................................42
SECTION 9.06. Special Depositor Wind-Up Event...............................43
ARTICLE X
Concerning the Trustee
SECTION 10.01. Duties of Trustee............................................43
SECTION 10.02. Certain Matters Affecting the Trustee........................44
SECTION 10.03. Limitation on Liability of Trustee...........................45
SECTION 10.04. Trustee May Own Units........................................46
SECTION 10.05. Trustee Fees and Expenses; Limited Indemnification...........46
SECTION 10.06. Eligibility Requirements for Trustee.........................47
SECTION 10.07. Resignation or Removal of the Trustee........................47
SECTION 10.08. Successor Trustee............................................48
SECTION 10.09. Merger or Consolidation of Trustee...........................48
SECTION 10.10. Appointment of Co-Trustee....................................49
SECTION 10.11. Appointment of Office or Agency..............................50
SECTION 10.12. Representations and Warranties of Trustee....................50
SECTION 10.13. Limitation of Powers and Duties..............................51
SECTION 10.14. Non-Petition.................................................51
ARTICLE XI
Termination
SECTION 11.01. Termination of the Trust.....................................52
ARTICLE XII
Miscellaneous Terms
SECTION 12.01. Amendment of Trust Agreement.................................52
SECTION 12.02. Counterparts.................................................53
SECTION 12.03. Limitation on Rights of Unitholders..........................53
SECTION 12.04. Governing Law................................................53
SECTION 12.05. Notices......................................................53
SECTION 12.06. Severability of Terms........................................54
SECTION 12.07. Notice to Rating Agencies....................................54
SECTION 12.08. Perfection of Swap Counterparty Security Interest............54
SECTION 12.09. No Recourse..................................................55
SECTION 12.10. Conflict With Trust Indenture Act............................55
EXHIBIT A Trust Agreement and Terms Schedule
EXHIBIT B-1 Form of Registered Unit
EXHIBIT B-2 Form of Bearer Unit
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 July 7, 1999 ("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 July 7, 1999 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 Securities": With respect to any Liquidation Event, the
Securities affected by a Security Default, Disqualified Securities, or
Securities related to a Disqualified Transaction.
"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 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.
"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": Cedelbank, 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 Security": Any Security that on the Closing Date constitutes
10% or more of the total 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.
"Credit Support Provider": With respect to any Series (or any Class within
such Series), the bank issuing a letter of credit or the financial guarantor or
surety company issuing a financial guaranty or surety bond that serves as Credit
Support with respect to such Series or Class.
"Currency": Dollars or Foreign Currency.
"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.
"Disqualified Credit Support": Any Credit Support with respect to which (i)
the related Credit Support Provider ceases to be an Eligible Issuer and no means
of replacing such Credit Support Provider or otherwise satisfying the
Depositor's reporting obligations under the Exchange Act regarding the related
Credit Support is described in the Terms Schedule; (ii) whether or not the
Credit Support Provider was initially an Eligible Issuer, it becomes impossible
or impractical for the Depositor to satisfy its reporting obligations under the
Exchange Act regarding the related Credit Support. For purposes of the
foregoing, a Credit Support Provider which is fully guaranteed by a guarantor
who is an Eligible Issuer will be considered an Eligible Issuer.
"Disqualified Security": Any (i) Concentrated Security, the issuer of which
ceases to be an Eligible Issuer or (ii) any Security other than a Concentrated
Security, the issuer of which ceases to be an Eligible Issuer or a Reporting
Issuer, in each case where no additional means of providing current information
regarding such Security Issuer is described in the Terms Schedule. For purposes
of the foregoing, a Security Issuer which is fully guaranteed by a guarantor who
is an Eligible Issuer will be considered an Eligible Issuer.
"Disqualified Transaction": Any Transaction under a Swap Agreement with
respect to which (i) the Swap Counterparty ceases to be an Eligible Issuer and
no means of replacing such Swap Counterparty or otherwise satisfying the
Depositor's reporting obligations under the Exchange Act regarding such
Transaction is described in the Terms Schedule; (ii) whether or not the related
Swap Counterparty was initially an Eligible Issuer, it becomes impossible or
impractical for the Depositor to satisfy its reporting obligations under the
Exchange Act regarding such Transaction; or (iii) that is a credit swap
transaction with respect to which the Deliverable Obligation is a Disqualified
Security. For purposes of the foregoing, a Swap Counterparty which is fully
guaranteed by a guarantor who is an Eligible Issuer will be considered an
Eligible Issuer.
"Distribution Agreement": The agreement between each Distribution
Participant and the Trust relating to the distribution of the Units.
"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.
"Eligible Issuer": (i) the United States government, (ii) any corporation,
limited partnership, trust, limited liability company or other organization,
banking organization or insurance company, in each case which meets the market
capitalization and other requirements for a primary issuance of common stock on
Form S-3 under the Securities Act and is subject to the informational
requirements of the Exchange Act, and which, in accordance therewith, files
reports and other information with the Securities and Exchange Commission (or
another applicable agency pursuant to Section 12(i) of the Exchange Act), (iii)
the Federal National Mortgage Association, Federal Home Loan Mortgage
Corporation or other government sponsored enterprise that has a comparable
market capitalization and which makes information publicly available comparable
to that of Exchange Act reporting companies or (iv) a Multilateral Bank Issuer.
"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.
"Exchange Rate Agent" Unless otherwise specified in the Terms Schedule,
Morgan Stanley & Co. Incorporated ("Morgan Stanley") or an Affiliate or agent 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 Security Accrual Period": The period from and including the
Closing Date to but excluding the next 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.
"Interest Rate": As specified in the Terms Schedule.
"Investment Company Act": The United States Investment Company Act of 1940,
as amended, and applicable rules thereunder.
"Liquidation Event": Any of the events described 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.
"Multilateral Bank Issuer": The International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development Bank,
the African Development Bank, the International Finance Corporation, and the
European Bank for Reconstruction and Development, or another multilateral
development bank that has a volume of outstanding securities and files with the
Commission publicly available information comparable to that of Eligible Issuers
described in clause (ii) or (iii) of the definition thereof, and the securities
of which are exempted from registration under the Securities Act.
"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.
"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 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 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.
"Reporting Issuer": The issuer of each Security that represents on the
date of formation of the Trust less than 10% by principal amount of the
Securities held by such Trust will either be an Eligible Issuer or a domestic
corporation, limited partnership, trust, limited liability company or other
domestic organization, domestic banking organization or domestic insurance
company which is subject to the information requirements of the Exchange Act and
which, in accordance therewith, files reports and other information with the
Securities and Exchange Commission (or another applicable agency pursuant to
Section 12(1) of the Exchange Act).
"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 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": As specified in the Terms Schedule.
"Securities Act": The Securities Act of 1933, as amended.
"Security Accrual Period": The Initial Security Accrual Period and each
period from and including a Security Payment Date to but excluding the next
succeeding Security Payment Date.
"Security Agreement": The indenture, fiscal agency agreement, or other
agreement with respect to a Security which sets forth the covenants and
agreements of the Security Issuer in connection with issuance of the Security.
"Security Amount": With respect to each Security Payment Date, an amount
equal to the accrued interest and/or other payment obligation calculated with
reference to the applicable Security for the immediately preceding applicable
Security Accrual Period at the applicable Security Rate.
"Security Default": Unless otherwise specified in the Terms Schedule, (i)
the acceleration of the maturity of the Securities under the Securities and/or
the Security Agreement, as applicable, whether by declaration of the Holders
thereof, the Security Trustee or otherwise, (ii) the failure to pay an
installment of principal of, or any amount of interest due on, the Securities
after the due date, and after the expiration of any applicable grace period or
cure period, (iii) the occurrence of any event of default relating to bankruptcy
or insolvency of the Security Issuer under the Securities and/or the Security
Agreement, as applicable or (iv) the occurrence of a waiver, deferral,
restructuring, rescheduling, exchange or other adjustment with respect to the
Security such that the Swap Counterparty reasonably determines that the economic
terms of the Security are materially different or the Security represents
materially greater credit or other risks. A 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.
"Security Issuer": As specified in the Terms Schedule.
"Security Payment Date": As specified in the Terms Schedule.
"Security Rate": As specified in the Terms Schedule.
"Security Trustee": As specified in the Terms Schedule, if applicable.
"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.
"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.
"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 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 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 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.
"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 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
(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 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
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 Securities
with the Trustee by physical delivery of such Securities, duly endorsed, to the
Trustee or cause the 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 Security, deliver or cause to be delivered to
the Trustee all documents necessary to transfer such 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 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.
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 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 Securities or the Swap Counterparty or any other Person in connection with
the 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 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 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 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 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 Securities and such other
assets constituting the Trust Property, Units duly executed and 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 Securities and all payments on or
collections in respect of such 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 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 obligations 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 Securities and the Swap Agreement; to
pledge the assets of the Trust (including the Securities) to secure the
obligations of the Trust including obligations under the Swap Agreement; to sell
the 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.
(c) Notwithstanding anything to the contrary herein, the Trust shall not
engage in any business or activities other than receiving the Securities and any
Credit Support or other Trust Property and entering into the Swap Agreement as
provided herein, holding the 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
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 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 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 Security, any Credit Support, the Swap Agreement or the Guarantee
(or any other Trust Property); (ii) impair the value of any 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 Security or any Credit
Support, (ii) entering into any amendment or modification of the Swap Agreement
or the 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 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.
SECTION 3.03. Collection of Certain Security Payments. The Trustee shall
make reasonable efforts to collect all payments required to be made pursuant to
the terms of the Securities in a manner consistent with the terms of the Trust
Agreement and such Securities.
SECTION 3.04. Sale. The parties hereto agree and intend that the Transfer
of 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
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 Securities, Swap Agreement and the
Guarantee including:
(i) all payments received by the Trustee on account of principal of
the Securities;
(ii) all payments received by the Trustee on account of interest (if
any) on the Securities;
(iii) all payments received by the Trustee on account of premium (if
any) on the 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;
(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
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 Security, unless otherwise specified in the Terms Schedule, the Retained
Interest shall be deducted by the Trustee from applicable collections in respect
of such 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 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 Securities, the Swap Agreement and the
Guarantee required by applicable laws and regulations. Such access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the offices of the Trustee designated by it. In addition,
access to the documentation regarding the 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 Interest Rate applicable to such Distribution Date;
(iii) the aggregate stated principal amount of the Securities as of
the Distribution Date and the interest rate applicable to the
Securities for the Security Accrual Period therefor next beginning;
(iv) the amount received by the Trustee on the related Securities for
the 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 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;
(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 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 Security Issuer, including notice of any
call of the Securities by the Security Issuer. The Trustee will also notify the
Unitholders of any call of the 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 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 Interest Rates. Unless otherwise specified in
the Terms Schedule, the Interest 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 Securities. If the Terms Schedule specifies a Calculation Agent, the
Calculation Agent shall calculate the Interest 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 4.04. 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
withholding requirements, the Trustee shall indicate in the statement required
pursuant to Section 4.02 the amount so withheld.
SECTION 4.05. 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 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' 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. Any Unit duly authenticated and delivered to the Depositor under the
Trust Agreement shall be fully paid and non-assessable for all purposes.
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 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' 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 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 Securities in kind, by delivery of such
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 respect to the final distribution and distributions
in kind of 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) 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.
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.
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
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' certificate of authentication, an
alternate certificate of authentication in substantially the following form:
This is one of the Units described in the Trust Agreement.
By: _____________________________
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 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."
(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 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) If the Terms Schedule specifies that the "QIB Restriction" is
applicable, sales of the Units will be restricted to "qualified institutional
buyers" as defined in Rule 144A under the Securities Act, and each purchaser of
the Units is deemed to represent (or in the case of definitive Units, shall be
required to represent) for the benefit of the Depositor, the Trustee and each
Distribution Participant that such purchaser is a "qualified institutional
buyer".
(g) 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. Optional Exchange.
(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 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;
(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-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 Securities to be distributed by the
Trustee.
(c) If the Terms Schedule states that "Depositor Optional Exchange" is
applicable to the Units of a given Series, any Units held by the Depositor or
its affiliates from time to time will be subject to optional exchange by the
Depositor or such affiliates, but not by other Unitholders, for a pro rata
portion of the Trust Property of the related Trust, subject to one or more of
the conditions set forth in (b) above and as described in the Terms Schedule, to
the above limitations under Rule 3a-7 and to such other conditions as may be
specified in the Terms Schedule.
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 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
Security Issuer, including notice of any exercise of any call option with
respect to the Securities by the Security Issuer. The Trustee shall also notify
the Unitholders of any call of the 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 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
(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 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
Securities, the Trustee shall give notice to the Unitholders, setting forth (i)
such information as is contained in such notice to owners of Securities, (ii) a
statement that the Unitholders will be entitled, subject to any applicable
provision of law and any applicable terms of such 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 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 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 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 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 Securities underlying the Units held
by such Unitholder or (ii) consent to any redemption or prepayment of the
Securities underlying the Units held by such Unitholder or (iii) consent to the
issuance of new obligations in exchange or substitution for any Securities
pursuant to a plan or refunding of the Securities or any other offer for the
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 Securities would not result in a "sale or
other disposition" of such 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 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 Securities could result
in a "sale or other disposition" of such 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 Securities and Permitted Investments
SECTION 8.01. Realization Upon Default. (a) The Trustee, on behalf of the
Unitholders, shall assert claims under the 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.
(b) If the Trustee is unable to obtain full recovery in respect of a
defaulted 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 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 Securities were issued) with respect to any
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 Security Defaults which either (i)
results in a Security Default with respect to all 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) any Transaction under the Swap Agreement has become a Disqualified
Transaction and (i) the Trust is not a party to any other Transaction under the
Swap Agreement which is not a Disqualified Transaction and the Terms Schedule
does not set forth provisions for substituting a replacement Swap Counterparty,
or (ii) the Terms Schedule provides that a Trust Wind-Up Event shall occur upon
such Transaction becoming a Disqualified Transaction;
(e) 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);
(f) the designation of a Special Depositor Wind-Up Event described in
Section 9.06;
(g) any Security held by the Trust becomes a Disqualified Security and (i)
the Trust holds no other Security which is not a Disqualified Security or (ii)
the Terms Schedule provides that a Trust Wind-Up Event shall occur upon such
Security becoming a Disqualified Security;
(h) any Credit Support held by the Trust becomes Disqualified Credit
Support and the Terms Schedule specifies that a Trust Wind-Up Event shall occur
upon such Credit Support becoming Disqualified Credit Support;
(i) any Excess Expense Event; and
(j) 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.
(a) In the event that (i) a 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 (ii) any Security held by the
Trust becomes a Disqualified Security, but the Trust holds one or more other
Securities which are not Disqualified Securities, and a Trust Wind-Up Event has
not otherwise occurred, then the Affected Securities (and, if necessary, other
Trust Property) 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.
(b) In the event that any Transaction under a Swap Agreement becomes a
Disqualified Transaction but the Trust holds one or more other Securities other
than the Affected Securities which are not Disqualified Securities and a Trust
Wind-Up Event has not otherwise occurred, then the Affected Securities (and, if
necessary, other Trust Property) shall be sold to the extent necessary to pay
any Termination Payment applicable to the Disqualified Transaction under the
Swap Agreement, and the remainder distributed to the Unitholders in accordance
with Section 9.03, but the Trust shall continue thereafter.
(c) In the event that any Credit Support becomes Disqualified Credit
Support but a Trust Wind-Up Event has not otherwise occurred, then such Credit
Support shall be terminated and any proceeds of such termination shall be
distributed pro rata to the Unitholders, 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 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 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 Securities, the Selling Agent
shall undertake to sell 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
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 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 Securities. In the case of a Liquidation Event, sales
under this provision shall be limited to the Affected Securities except where
the proceeds from the Affected 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 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 Securities (but the Selling Agent and the Trustee shall complete the
settlement of any sale already agreed). It is expressly understood and agreed
that 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 Securities or Affected 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 Securities and (ii) such Holder' Units (or
acceptable security or indemnity), the Trustee shall promptly deliver 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 Securities to credit such 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 Security Default, the claim
of the Swap Counterparty against the 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.
(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
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 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 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 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 Securities to
Affiliates of the Selling Agent. The Selling Agent may (in addition to declining
to sell specific Securities as provided in Section 9.03(b)) resign at any time
by oral or written 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 Securities in
the open market or, if the Swap Counterparty elects, to sell the 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.
(k) No Unitholder shall have any liability as a seller of the Trust
Property in connection with any sale of Trust Property by the Trustee or the
Selling Agent.
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 on the 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
Security Issuer of an event constituting a 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.
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' 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 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;
(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 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 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 Securities is
the related 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 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 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, 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' 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' duties thereunder or by reason of
reckless disregard of the Trustee' 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 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 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 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'
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 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.
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.
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
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 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 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 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.
(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 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 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.
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.
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:
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 July 7,
1999 (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 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 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 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)
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:
Interest 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]
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]
QIB Restriction [Applicable] [Not Applicable]
Additional Trust Wind-Up Event:
Exchangeable Series Terms:
Terms of Retained Interest:
Call Option Terms:
Other Terms:
Schedule II
(Terms of Trust Property)
Concentrated Securities:
Securities:
Security Issuer:
Principal Amount:
Security Rate:
Credit Ratings:
Listing:
Security Agreement:
Events of Default:
Form:
Currency of
Denomination:
Acquisition Price Units having an initial Unit Principal
by Trust: Balance of [$______].
Security Payment Date:
Original Issue Date:
Maturity Date:
Sinking Fund Terms:
Redemption Terms:
CUSIP No.:/ISIN No.
Security Trustee:
Available Information [[name of issuer of Securities] is
Regarding the Security Issuer subject to the informational
(if other than U.S. requirements of the Securities
Treasury obligations): Exchange Act of 1934, as 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 Securities] has also filed
with the Commission] a Prospectus,
dated ________ __, 19__, relating to
the original offering of the
Securities.]
Cut-Off Date:
Description of Credit Support:
Other Trust Property:
Schedule III
(Swap Terms)
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.
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.
[EACH PURCHASER OR OTHER TRANSFEREE OF THIS UNIT OR ANY INTEREST HEREIN (EACH, A
"PURCHASER") OF THIS UNIT, BY ITS ACCEPTANCE HEREOF, IS DEEMED TO REPRESENT AND
WARRANT FOR THE BENEFIT OF THE TRUSTEE AND THE DEPOSITOR OF THE TRUST, AND EACH
DISTRIBUTION PARTICIPANT AS DEFINED IN THE TRUST AGREEMENT, REFERRED TO BELOW
THAT SUCH PURCHASER IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT]
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 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 applicable 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, 9th 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.
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.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and not in its
individual capacity, has caused this Certificate to be duly executed.
SATURNS 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.]
[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.
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.
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: __________________
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 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.
[EACH PURCHASER OR OTHER TRANSFEREE OF THIS UNIT OR ANY INTEREST HEREIN (EACH, A
"PURCHASER") OF THIS UNIT, BY ITS ACCEPTANCE HEREOF, IS DEEMED TO REPRESENT AND
WARRANT FOR THE BENEFIT OF THE TRUSTEE AND THE DEPOSITOR OF THE TRUST, AND EACH
DISTRIBUTION PARTICIPANT AS DEFINED IN THE TRUST AGREEMENT, REFERRED TO BELOW
THAT SUCH PURCHASER IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT]
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 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 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 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.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and not in its
individual capacity, has caused this Certificate to be duly executed.
SATURNS 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.]
[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.
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: __________________