As filed with the Securities and Exchange Commission on May 7, 2003
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Bond Products Depositor LLC
(Exact name of registrant as specified in governing instruments)
Delaware
(State or other jurisdiction of incorporation or organization)
54-2104116
(I.R.S. employer identification number)
Bank of America Corporate Center
Charlotte, North Carolina 28255
(Address of principal executive offices)
Paul J. Polking, Esq.
Executive Vice President and General Counsel
Bank of America Corporation
Bank of America Corporate Center
Charlotte, North Carolina 28255
(704) 386-7484
(Name and address of agent for services)
Copy to:
C. Thomas Kunz
Skadden, Arps, Slate,
Meagher & Flom LLP
4 Times Square
New York, NY 10036
Approximate date of commencement of proposed sale to the public: From
time to time on or after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act") other than
securities offered only in connection with dividend or interest plans, please
check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Offering Amount Maximum Maximum
Title of Securities to be Offering Price Amount of Registration
Being Registered Registered(1) Per Unit Offering Price(1) Fee
---------------- ------------- -------- ----------------- -------------
Trust Securities $1,000,000 100% $1,000,000 $80.90
(1) Estimated solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement includes a base prospectus with a
corresponding form of prospectus supplement for offering series of
certificates representing, in each case, the entire beneficial ownership
interest in various trusts to be created from time to time, the assets of
which will consist primarily of securities within one of the following
categories: (1) a debt security or asset backed security or a pool of such
debt securities or asset backed securities issued or guaranteed by one or more
corporations, banking organizations, insurance companies or special purpose
vehicles (including trusts, limited liability companies, partnerships or other
special purpose entities); (2) a debt security or a pool of such debt
securities which represent obligations issued by or guaranteed by a foreign
government, political subdivision or agency or instrumentality thereof; (3) an
obligation or obligations of one or more foreign private issuers; or (4) a
debt security or a pool of such debt securities which represent obligations of
the United States of America, any agency thereof for the payment of which the
full faith and credit of the United States of America is pledged, or a United
States government-sponsored organization created pursuant to a federal
statute. All of such securities will either be publicly issued or available
for resale pursuant to an exemption from registration under the Securities
Act. In each case the assets will be deposited in the trust by Bond Products
Depositor LLC.
The information in this prospectus supplement and the accompanying
base prospectus is not complete and may be changed. We may not sell these
securities until this registration statement filed with the Securities and
Exchange Commission is effective. Neither this prospectus supplement nor the
accompanying base prospectus is an offer to sell and neither document is
intended to solicit an offer to buy these securities in any state where the
offer or sale is not permitted.
Subject to Completion Dated __________, 200__
Prospectus Supplement
(To Prospectus Dated _______________, 200_)
$[ ]
Trust Certificates, Series 200_ - [ ]
Bond Products Depositor LLC
Depositor
Principal Price to Underwriting
Balance Certificate Rate Public Discount
[Class __ $__________ [%] [Variable] [100.00%] __%
Certificate] Pass-Through
Rate][ ]%
[Class __ $__________ [%][Variable [100.00%] __%
Certificate] Pass-Through
Rate][ ]%
- ------------------------------------------------------------------------------
The trust o is a Delaware business trust formed
pursuant to a trust agreement between Bond
Products Depositor LLC, as depositor, and
[the trustee], as trustee, and
o will issue ____ classes of certificates, all
of which [except the class [certificates]
are offered hereby.
- ------------------------------------------------------------------------------
The certificates o represent undivided beneficial interests
in the assets of the trust, which consist
[primarily] of a [security][pool of
securities] that are described herein
[as well as [describe other trust assets]],
o currently have no trading market, [and]
o [are not insured or guaranteed by any
governmental agency.]
- ------------------------------------------------------------------------------
THE CERTIFICATES REPRESENT INTERESTS IN THE TRUST ONLY AND DO NOT
REPRESENT AN INTEREST IN OR AN OBLIGATION OF BOND PRODUCTS DEPOSITOR LLC, THE
TRUSTEE OR ANY OF THEIR AFFILIATES.
YOU SHOULD REVIEW THE INFORMATION IN "RISK FACTORS" ON PAGE S-__ OF
THIS PROSPECTUS SUPPLEMENT AND ON PAGE ___ OF THE ACCOMPANYING BASE
PROSPECTUS.
For complete information about the offered certificates, read both
this prospectus supplement and the accompanying base prospectus. This
prospectus supplement must be accompanied by the base prospectus if it is
being used to offer and sell the offered certificates.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE CERTIFICATES OR
PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING BASE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
[Subject to the satisfaction of certain conditions, the
underwriter[s] named below will purchase the offered certificates from Bond
Products Depositor LLC. See "Underwriting" in this prospectus supplement]. It
is expected that delivery of the certificates will be made to investors in
book-entry form through the facilities of The Depository Trust Company for the
accounts of its participants, including Euroclear Bank S.A./N.A., as operator
of the Euroclear System and Clearstream Banking, a societe anonyme, on or
about [ ], 200[ ].
Banc of America Securities LLC
____________, 200_
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING BASE PROSPECTUS
We provide information to you about the certificates in two separate
documents that progressively provide more detail about the certificates: (a)
the accompanying base prospectus, which provides general information, some of
which may not apply to your series of certificates and (b) this prospectus
supplement, which describes the specific terms of your series of certificates.
To the extent the terms of your series of certificates as described
in this prospectus supplement differ from the terms described in the
accompanying base prospectus, you should rely on the information in this
prospectus supplement.
In connection with making a decision to invest in the certificates,
you should rely only on the information contained in this prospectus
supplement and the accompanying base prospectus. We have not, and the
underwriter[s] [have] [has] not, authorized anyone to provide you with
different or additional information. If anyone provides you with different or
additional information, you should not rely on it. Neither Bond Products
Depositor LLC (the "Depositor") nor the underwriter[s] [is] [are] making an
offer to sell the certificates or soliciting an offer to buy the certificates
in any jurisdiction where the offer or sale is not permitted. You should not
assume that the information contained in this prospectus supplement is
accurate as of any date other than the date on the front cover of this
prospectus supplement or that the information contained in the accompanying
base prospectus is accurate as of any date other than the date on its front
cover.
Detailed information relating to certain underlying securities and
the related issuers will be included in this prospectus supplement. Additional
information is available from the SEC.
[FOR PRIVATELY ISSUED UNDERLYING SECURITIES, INCLUDE ONE OF THE FOLLOWING
BRACKETED PROVISIONS] [In addition, copies of private placement offering
memoranda relating to the privately issued underlying securities may be
acquired from the trustee.] [Copies of offering memoranda relating to
privately issued underlying securities will not be distributed to prospective
investors. Accordingly, prospective investors must rely entirely on the
disclosure contained herein with respect to such underlying securities.]
Information that is included or incorporated by reference in prospectuses or
other offering documents which relate to the underlying securities is not, and
shall not be deemed to be, a part of this prospectus in any respect. In
connection with the offering of the certificates, neither the Depositor nor
the trustee assumes any responsibility for the accuracy or completeness of any
of the information that is included or incorporated by reference in those
prospectuses or other offering documents.
Given the complexity of the transaction contemplated by this
prospectus supplement and the accompanying base prospectus, you are urged to
consult your own attorneys, business advisors and tax advisors for legal,
business and tax advice regarding a decision to invest in the certificates.
For 90 days following the date of this prospectus supplement, all
dealers selling the certificates are required to deliver a copy of this
prospectus supplement and the accompanying base prospectus to each potential
investor. This is in addition to the dealers' obligation to deliver
a copy of this prospectus supplement and the accompanying base prospectus to
each potential investor when acting as an agent of the Depositor in soliciting
offers to purchase certificates.
We include cross-references in this prospectus supplement and the
accompanying base prospectus to captions in these materials where you can find
further related discussions. The following table of contents and the table of
contents included in the accompanying base prospectus indicate the pages on
which these captions are located.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
SUMMARY OF PROSPECTUS SUPPLEMENT.............................................S-1
RISK FACTORS.................................................................S-9
FORMATION OF THE TRUST......................................................S-11
USE OF PROCEEDS.............................................................S-11
DESCRIPTION OF THE DEPOSITED ASSETS.........................................S-11
YIELD ON THE CERTIFICATES...................................................S-18
DESCRIPTION OF THE CERTIFICATES.............................................S-18
[Index Linked Certificates].................................................S-20
DESCRIPTION OF THE TRUST AGREEMENT..........................................S-25
CERTAIN LEGAL ASPECTS OF THE DEPOSITED ASSETS...............................S-33
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS...................................S-33
CERTAIN STATE TAX CONSIDERATIONS............................................S-46
ERISA CONSIDERATIONS........................................................S-46
UNDERWRITING................................................................S-46
RATINGS ...................................................................S-49
LEGAL MATTERS...............................................................S-49
INDEX OF TERMS FOR PROSPECTUS SUPPLEMENT....................................S-50
You can find a listing of the pages where capitalized terms used in
this prospectus supplement and the accompanying base prospectus are defined
under the caption "Index of Terms for Prospectus Supplement" beginning on page
S-____ in this document and under the caption "Index of Terms for Prospectus"
beginning on page ____ in the accompanying base prospectus.
THE UNDERWRITER[S] MAY ENGAGE IN TRANSACTIONS THAT STABILIZE,
MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE CERTIFICATES, INCLUDING
OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH SECURITIES
AND THE IMPOSITION OF PENALTY BIDS, IN EACH CASE IN CONNECTION WITH THE
OFFERING OF THE CERTIFICATES. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"UNDERWRITING" HEREIN.
- ------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus supplement and the accompanying base prospectus.
We have not authorized anyone to provide you with different information.
We are not offering the offered certificates in any state or other
jurisdiction where the offer is not permitted.
We do not claim that the information in this prospectus supplement
and the accompanying base prospectus is accurate as of any date other than the
dates stated on their respective covers.
SUMMARY OF PROSPECTUS SUPPLEMENT
The following summary highlights certain of the material terms of the
Deposited Assets (as defined below) and the certificates being issued by the
trust and offered by this prospectus supplement. It does not contain all of
the information that you need to consider in making a decision to invest in
the certificates. As a result, you should carefully read this prospectus
supplement and the accompanying base prospectus in full.
The Trust......................................... The Series 200[ ]-[ ] Trust (the "Trust") is a
common law trust formed pursuant to the Standard
Terms for Trust Agreements (the "Standard Terms"),
dated as of [ ], 200_ between the Depositor and [ ],
as trustee (the "Trustee") as amended by a
Series Supplement (the "Series Supplement") for
the Series 200[ ]-[ ] Certificates, dated as of [ ],
200[ ], between the Depositor and the Trustee
(the Series Supplement together with the Standard
Terms, the "Trust Agreement").
The Depositor......................................Bond Products Depositor LLC is a Delaware limited
liability company and a wholly-owned, limited-purpose
subsidiary of NationsBanc Montgomery Holdings
Corporation, which is a wholly-owned subsidiary of
Bank of America Corporation. See "The Depositor" in
the accompanying base prospectus.
Certificates.......................................The certificates will consist of the class [ ] [
]% [variable rate] pass-through certificates (the
"Class [ ] Certificates") and the class [ ] [ ]%
[variable rate] pass-through certificates (the
"Class [ ] Certificates" and together with the
Class [ ] Certificates, the "Certificates") each
of which are being offered hereby. The initial
certificate principal balance of the Class [ ]
Certificates will be $[ ] and the initial
certificate principal balance of the Class [ ]
Certificates will be $[ ]. The Certificates will
be issued pursuant to the Trust Agreement and
will constitute the entire undivided beneficial
ownership interest in the assets of the Trust.
Each class of Certificates represents the right
to receive distributions on the assets of the
Trust up to their respective certificate
principal balances and interest thereon at their
applicable pass-through rate. The Certificates
will be issued in [book entry form through The
Depository Trust Company] [definitive form] in
minimum denominations of $[1,000].
The Deposited Assets...............................The Deposited Assets will consist of:
o the Underlying Securities (as defined below),
[and]
o [describe any interest rate swaps, currency
swaps, floors, collars or other similar
instruments];
o [describe any letter of credit; surety bond; or
other applicable credit support]; and
o [any other applicable assets of the Trust].
The Underlying Securities..........................The Underlying Securities will have an initial aggregate
principal balance of approximately $[ ] as of [
], 20[ ] (the "Cut-off Date"). The Depositor will deposit
into the Trust the following fixed income securities (the
"Underlying Securities"): [specify debt security or asset
backed security or a pool of such debt securities or asset
backed securities issued by one or more corporations,
banking organizations, insurance companies or special
purpose vehicles (including trusts, limited liability
companies, partnerships or other special purpose
entities)] [a debt security or a pool of such debt
securities, in each case which represents obligations
issued or guaranteed by a foreign government, political
subdivision or agency or instrumentality thereof] issued
by [specify issuers] [specify obligations of one or more
foreign private issuers] [specify debt security or a pool of
such debt securities, in each case which represents
obligations of the United States of America, any agency
thereof for the payment of which the full faith credit of
the United States of America is pledged, or a United
States government-sponsored organization created
pursuant to a federal statute] which have the
characteristics described herein under "Description of the
Deposited Assets - Description of Underlying
Securities." and "- Composition."
[As of the Cut-off Date, the following
information will apply to the Underlying
Securities to be acquired by the Depositor:
--------------------------------------------------------------------------------
% of Available
Aggregate Issuer
Principal Principal Moody's(1) S&P(1) Fitch(1) Informat-
Issuer Coupon Amount Amount Rating Rating Rating ion
------ ------ ------ -------- ------- ------ ------ --------
(2)
(3)
(4)
--------------------------------------------------------------------------------
(1) If applicable.
[(2) The related issuer is subject to the
information reporting requirements of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act").]
[(3) The related issuer is not subject to the
Exchange Act reporting requirements and the only
available information regarding the [related
issuer and] [the Underlying Security] is
contained in the offering memorandum related to
the issuance of the Underlying Security, a copy
of which is available through the Trustee.]
[(4) The related issuer is not subject to the Exchange
Act reporting requirements and the only information
available regarding [the related issuer and] [the
Underlying Security] is as set forth in this prospectus
supplement.]
Underlying Securities Issuers......................Each Underlying Security has been issued by a separate
issuer (each, an "Underlying Securities Issuer"). For
each Underlying Security, certain summary information
regarding the related Underlying Securities Issuer,
including its rating, its industry classification and pricing
terms with respect to the Underlying Security is set forth
herein. See "Description of the Deposited Assets -
Composition." The Underlying Securities Issuers are not
participating in this offering and have no direct
obligations under the Certificates.
[Other Deposited Assets]...........................[The Trust's assets will also include [describe any puts,
calls, interest rate swaps, currency swaps, floors, caps,
collars, other credit derivatives or similar agreements]
(the "Other Deposited Assets"). See "Description of the
Deposited Assets - Description of Other Deposited Assets."]
[Credit Support]...................................[The Certificateholders [of the [specify particular
classes] Certificates] will also have the benefit of
[describe any letter of credit; surety bond; or other
applicable credit support] (the "Credit Support") which
will be used to support or ensure the [servicing and]
[timely] [ultimate] distribution of amounts due with
respect to the Underlying Securities, including providing
certain coverage with respect to losses]. See
"Description of the Deposited Assets - Description of
Credit Support."]
[Calculation Agent]................................[[ ] will act as Calculation Agent (the "Calculation
Agent")] and will calculate the value of [the index] from
time to time.]
[Call Option]......................................[The Certificates are subject to a call option in
favor of [identify call option holder (the "Call
Option Holder")] pursuant to which the Call
Option Holder may, [on or after [ ][on any
Business Day], exercise its right to purchase
[all or a portion of] the Certificates (the "Call
Option") in accordance with the terms of the
Trust Agreement and the call rights agreement,
dated as of [ ], 20[ ], between the Depositor and
the Call Option Holder (the "Call Option
Agreement".] See "Description of Deposited Assets
- Description of the Call Option."
Closing Date.......................................The Certificates are expected to be offered on or about
________, 200_ (the "Closing Date").
Distribution Dates.................................Payments of interest, principal and premium (if
any) on the Certificates will be made on each
[monthly date] [quarterly date] [semi-annual
date], or if such date is not a Business Day (as
defined herein) on the following Business Day
(each, a "Distribution Date").
Final Scheduled Distribution Date..................[ ] (the "Final Scheduled Distribution Date").
Pass-Through Rates.................................[For each Interest Accrual Period (as defined
below), the Variable Pass-Through Rate will be
calculated [describe method for determining
variable pass-through rates] [The initial
Variable Pass-Through Rates for the Class [ ]
Certificates and the Class [ ] Certificates will
be approximately [ ]% and [ ]%, respectively, per
annum.]] [The Pass-Through Rates applicable to
the calculation of interest on the Class [ ]
Certificates and the Class [ ] Certificates will
be [ ]% and [ ]%, respectively, per annum.]
Interest Accrual Periods...........................Interest shall accrue on the outstanding
aggregate Certificate Principal Balance of each
Class of Certificates at the applicable
Pass-Through Rate on a [monthly] [quarterly]
[semi-annual] basis from [ ] to [ ] (each, an
"Interest Accrual Period"). In the case of the
first Interest Accrual Period, interest shall
accrue on the initial aggregate Certificate
Principal Balance of each Class of Certificates
at the applicable initial Pass- Through Rates
from and including the Closing Date to but
excluding [___, 200_].
Collection Period..................................With respect to each Distribution Date, the period
beginning on [ ] and ending at the close of business on
[ ] (each such period, a "Collection Period").
Principal Distributions............................The Certificate Principal Balance of each
Certificate represents the maximum amount that
the Certificateholder is entitled to receive as
distributions allocable to principal. Payments of
principal received by the Trust on the Deposited
Assets during each Collection Period will be paid
to the Certificateholders on each Distribution
Date. The Certificate Principal Balance of a
Certificate will be reduced by the amount of (x)
distributions allocable to principal made to
Certificateholders, (y) losses incurred with
respect to the Deposited Assets which are
allocated to the Certificateholders and (z)
certain expenses incurred by the Trustee with the
consent of the Certificateholders. [The Notional
Amount of the Class [ ] Certificates as of any
date of determination is equal to [specify].
Reference to the Notional Amount of the Class [ ]
Certificates is solely for convenience in
determining the basis on which distributions on
the Class [ ] Certificates will be calculated
[and determining the relative voting rights of
Certificateholders of Class [ ] Certificates for
purposes of voting on a class-by-class basis or
otherwise]. The Notional Amount does not
represent the right to receive any distributions
allocable to principal.] [Shortfalls in
collections of principal with respect to the
Deposited Assets will be allocated to reduce the
Certificate Principal Balance of the Class [ ]
Certificates and after the Certificate Principal
Balance of such Certificates has been reduced to
zero, such shortfalls shall be applied to reduce
the Certificate Principal Balance of the Class [
] Certificates, as provided in this prospectus
supplement.]
Distributions......................................Certificateholders will be entitled to receive on
each Distribution Date, to the extent of
available funds, after payment of certain
expenses of the Trust [and amounts payable to the
[Other Deposited Assets Providers][Credit Support
Providers]]:
o interest accrued on the Certificates during
the related Interest Accrual Period at the
applicable Pass-Through Rate on the
outstanding Certificate Principal Balance of
each class of Certificates;
o distributions allocable to principal, in an
amount equal to all payments allocable to
principal received on the Deposited Assets
during the applicable Collection Period; and
o distributions allocable to premium (if any)
in an amount equal to all payments of
premiums (if any) received on the Underlying
Securities [or from the Call Right Holder
upon the exercise of the Call Option] during
the applicable Collection Period.
Distributions will be made to Certificateholders
only if, and to the extent that, payments are
made with respect to the Deposited Assets.
[The holders of the Class [ ] Certificates will
[also] be entitled to receive on each
Distribution Date, distributions allocable to
interest in an amount equal to [describe Stripped
Interest].] [The holders of the Class [ ]
Certificates will not be entitled to receive any
distributions allocable to principal or premium
(if any).] See "Description of the Certificates -
Distributions."
[Subordination]....................................[The rights of the holders of the Class [ ] Certificates to
receive distributions of interest, principal and premiums
(if any), with respect to the Deposited Assets will be
subordinated to the rights of the holders of the Class [ ]
Certificates to receive interest, principal and premiums
(if any). In addition, losses attributable to the
Underlying Securities are allocable first to the Class [ ]
Certificates and then to the Class [ ] Certificates. See
"Description of the Certificates - Allocation of Losses;
Subordination."]
[Optional Termination].............................[The Depositor may purchase the Underlying Securities
in the Trust at a price equal to the par amount [or
liquidation preference amount, as applicable] of the
Underlying Securities in the Trust on any Distribution
Date on which the aggregate outstanding principal
amount of the Underlying Securities remaining in the
Trust is less than [10%] of the aggregate principal
amount of the Underlying Securities as of the [Cut-off
Date]. This would cause the termination of the Trust and
early retirement of the Certificates. [Specify any other
purchase or repurchase option of the Depositor.] See
"Description of the Trust Agreement - Termination"
herein and "Description of Trust Agreement -
Termination" in the accompanying base prospectus.]
Ratings............................................[It is a condition to the issuance of the Certificates that
the Certificates be rated at least [" "] by [Standard &
Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc. ("S&P")], [" "] by [Moody's Investors
Service, Inc. ("Moody's")] and [" "] by [Fitch Inc.
("Fitch")]. A security rating is not a recommendation to
buy, sell or hold securities and may be subject to revision
or withdrawal at any time by the assigning rating agency.
A security rating does not address the occurrence or
frequency of redemptions or prepayments on, or
extensions of the maturity of, the Underlying Securities,
the corresponding effect on yield to investors [or whether
investors in the Class [ ] Certificates may fail to recover
fully their initial investment]. See "Ratings."]
Specified Currency; Denominations..................The Class [ ] Certificates and the Class [ ] Certificates
will be denominated and payable in [U.S. dollars] (the
"Specified Currency") and will be available for purchase
in minimum denominations of [$][1,000] and in integral
multiples of [$][25].
Form of Certificates...............................[The Certificates will be issued as book-entry certificates
through the facilities of The Depository Trust Company
("DTC"), except under circumstances specified herein]
See "Description of the Certificates - Definitive
Certificates." Distributions will be settled in
[immediately available (same-day)] funds.
Trustee............................................[ ], as trustee.
Certain Federal Income Tax
Considerations.....................................It is a condition to the issuance of the Certificates that
the Depositor receive an opinion from special tax
counsel to the Trust which provides that the Trust would
not be characterized for federal income tax purposes as
an association taxable as a corporation or as a publicly
traded partnership. See "Certain Federal Income Tax
Considerations."
ERISA Considerations...............................An employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), including an
individual retirement account (an "IRA") or Keogh plan
(each, a "Plan") should consult its advisors concerning
the ability of such Plan to purchase Certificates under
ERISA or the Code. Although no assurances can be
given, the [Underwriter] believes that each class of
Certificates will qualify as Publicly Offered Securities
under regulations issued by the U.S. Department of
Labor (i.e. freely tradeable, widely held and registered
under the Exchange Act) and that, accordingly, the assets
of the Trust should not be treated as assets of any
employee benefit plan subject to ERISA by reason of an
investment in the Certificates. See "ERISA
Considerations" herein and in the accompanying base
prospectus.
Risk Factors.......................................See "Risk Factors" for discussion of some of the factors
you should carefully consider prior to making a decision
to invest in the Certificates.
RISK FACTORS
[Describe risk factors applicable to the specific Underlying
Securities (including any material risks as a result of any repurchase option,
call or put and the inclusion in the Underlying Securities of GTCs), [and]
[any Other Deposited Assets] [any Credit Support] and the particular structure
of the Certificates being offered, including factors affecting the yield on
the Certificates and the terms thereof, as described elsewhere herein.] See
"Risk Factors" and "Maturity and Yield Considerations" in the accompanying
prospectus.
Debt Securities; Defaults. The Underlying Securities are subject to
credit, liquidity and interest rate risks. [It is expected that a portion of
the Underlying Securities will be high yield debt securities issued by
entities rated below investment grade, which have greater credit and liquidity
risk than investment grade sovereign or corporate bonds.] To the extent that a
default occurs with respect to any Underlying Securities and the Trustee sells
or otherwise disposes of such Underlying Securities, it is not likely that the
proceeds of such sale or other disposition will be equal to unpaid principal
and interest accrued thereon.
While a number of articles and research reports have been written on
historical default rates, the timing of such defaults and subsequent
recoveries on [high yield] debt securities, there is no central source for
relevant data, or a standardized method of measuring default rates, the timing
of such defaults or any subsequent recoveries. Furthermore, the historical
performance of the bond markets is not necessarily indicative of their future
performance. PROSPECTIVE PURCHASERS OF THE CERTIFICATES SHOULD CONSIDER AND
DETERMINE FOR THEMSELVES THE LIKELY LEVEL OF DEFAULTS AND THE LEVEL OF
RECOVERIES ON THE UNDERLYING SECURITIES DURING THE TERM OF THE CERTIFICATES.
[Early Redemption or Amortization Will Affect Yield and Recovery of
Investment.] The Underlying Securities [can be redeemed early at the option of
the issuer of the Underlying Securities] [specify dates or conditions] [may
amortize early as a result of [describe amortization features of specific
Underlying Securities.]] If all or a significant portion of the Underlying
Securities are [redeemed] [amortized] early, the Trust will be terminated and
Certificateholders may receive a lower overall yield on the Certificates and a
distribution of principal before the scheduled maturity of the Certificates].
[In addition, if all of the Underlying Securities are [redeemed]
[amortized] early, the Trust [and the [describe Other Deposited Assets and/or
Credit Support] will terminate early[, and the Trust may be required to make a
termination payment in accordance with the terms of the [describe Other
Deposited Assets and/or Credit Support].]
[Insert the following for "stripped certificates" only] [The Class [
] Certificates are not entitled to distributions of principal but receive a
portion of interest collections on the Underlying Securities for so long as
the Underlying Securities are outstanding. If the Underlying Securities are
prepaid or redeemed early or the Trust is otherwise wound up early, returns on
the Class [ ] Certificates will be adversely affected.]
[Alternative Tax Characterization.] [Depositor will receive an
opinion of special tax counsel that the Trust should be treated as a grantor
trust for federal income tax purposes, but the Internal Revenue Service might
disagree with this characterization. See "Certain Federal Income Tax
Considerations" in this prospectus supplement for a discussion of the
consequences of any alternative characterization of the Trust that might be
asserted by the IRS.]
[Liability for Termination Payments.] [[The Swap Agreement] [Each
swap transaction] may be terminated early if:
o [there is a default with respect to] the [related] Underlying
Securities [or the Underlying Securities are redeemed early];
o the Trust or the [Swap Counterparty] fails to make the required
payments under the [Swap Agreement];
o the [Swap Agreement] becomes illegal or invalid;
o the Trust or the [Swap Counterparty] becomes bankrupt;
o withholding taxes are imposed on payments made by the Trust [or
Swap Counterparty under the Swap Agreement;]
o the [Swap Counterparty] is involved in a merger and disaffirms
the [Swap Agreement]; or
o [other.]
At the time of any early termination of the [Swap Agreement], the
agreement may have value to either the Trust or the [Swap Counterparty]; if
so, the other party will be required to pay that value as a termination
payment. The termination payment generally corresponds to the estimated cost
to the Trust or the [Swap Counterparty], as the case may be, of entering into
a replacement [Swap Agreement]. Such cost generally depends on the value of
the remaining payments to be made by the Trust and the remaining payments to
be made by the [Swap Counterparty]. The value of the [Swap Agreement] may be
highly volatile, and it is not possible to estimate the maximum amount of any
termination payment which may be payable by the Trust.]
[Concentration Risk.] Approximately [ ]% (in par amount) of the
Underlying Securities are issued by [number of issuers] [issuers in the same
industry] [describe other areas of pool concentration]. The occurrence of
[downturns in the issuer's business] [an insolvency event with respect to such
issuers] [or regulatory, legal or other developments] could adversely affect
the issuer and its ability to satisfy its obligations under the Underlying
Securities. Accordingly, payments on the Certificates could be adversely
affected by the concentration of the Underlying Securities in any one [issuer
or industry].
[Subordination of the Class [ ] Certificates. Except as described
below, the Class [ ] Certificates are fully subordinated on each Distribution
Date to the Class [ ] Certificates. No payments of interest will be made on
the Class [ ] Certificates until interest on the Class [ ] Certificates has
been paid in full. No payment of principal on the Class [ ] Certificates will
be made until the Class [ ] Certificates have been paid in full. In addition,
to the extent that any losses are incurred on the Underlying Securities, such
losses will be borne in the first instance by holders of the Class [ ]
Certificates and, thereafter, by holders of the Class [ ] Certificates.]
FORMATION OF THE TRUST
The Series 200[ ] -[ ] Trust (the "Trust") will be formed pursuant to
the Standard Terms for Trust Agreements, dated as of [ ], 20[ ] (the "Standard
Terms"), as amended by that certain series [ ] supplement, dated as of [ ],
20[ ] (the "Series Supplement" and together with the Standard Terms, the
"Trust Agreement"), each between the Depositor and the Trustee. At the time of
the execution and delivery of the Trust Agreement, the Depositor will
contribute (a) the Underlying Securities, described under "Description of the
Deposited Assets - Description of the Underlying Securities" [and] (b) any
Other Deposited Assets, described under "Description of the Deposited Assets -
Description of Other Deposited Assets"] [and (c) [any Credit Support,
described under "Description of the Deposited Assets - Description of Credit
Support"] [and (d) [any other assets of the Trust]] (collectively, the "Trust
Estate")]. The Trustee, on behalf of the Certificateholders, will accept the
Trust Estate and, in consideration for the receipt thereof, will deliver the
Certificates to the Depositor.
USE OF PROCEEDS
The net proceeds received by the Depositor from the sale of the
Certificates will be used to purchase the Underlying Securities and to enter
into [describe any Other Deposited Assets and/or Credit Support], which will
be contributed to the Trust and will collectively constitute the Deposited
Assets.
DESCRIPTION OF THE DEPOSITED ASSETS
The assets of the Trust will consist primarily of the Underlying
Securities [and] [describe Other Deposited Assets]] [and] [describe any Credit
Support] (collectively, the "Deposited Assets").
Description of Underlying Securities
The Underlying Securities (other than Underlying Securities which are
issued by a government sponsored entity (a "GSE") or the United States of
America) will be purchased by the Depositor in the secondary market, either
directly or through an affiliate of Banc of America Securities LLC. The
Underlying Securities (other than Underlying Securities which are issued by
GSEs or the United States of America) will not be acquired directly from any
Underlying Securities Issuer as part of an initial distribution by, or
pursuant to, any agreement with such issuer. No Underlying Securities Issuer
is participating in this offering and none will receive any proceeds from the
sale of the Underlying Securities to the Depositor or any proceeds from the
issuance of the Certificates. [Banc of America Securities LLC, an affiliate of
the Depositor, participated in the initial [public] offering of certain of the
Underlying Securities as a [placement agent][underwriter]].
This prospectus supplement sets forth the relevant terms with respect
to the Underlying Securities but does not provide detailed information with
respect to the Underlying Securities. Prospective purchasers of the
Certificates should consider carefully the financial condition of the
Underlying Securities Issuers and their ability to make payments on the
related Underlying Securities.
[The disclosure contained herein with respect to the Underlying
Securities and their issuers is derived from [publicly available documents]
[and] [private placement memoranda]. [Describe available documents.]
[[Certain] [Each] issuer[s] of the Underlying Securities is [are] subject to
the information reporting requirements of the Exchange Act.] Although the
Depositor has no reason to believe that any publicly available information
concerning any Underlying Security or its issuer is not reliable, neither the
Depositor nor [any of] the underwriter[s] has participated in the preparation
of any such documents, or has made any due diligence inquiry with respect to
the information provided therein. At the time of the acquisition of any
Underlying Security, events affecting the Underlying Security or its issuer
may have occurred that may not yet have been publicly disclosed. The
occurrence of such events may affect the accuracy or completeness of the
publicly available documents described above and may affect an Underlying
Securities Issuer's ability to make required payments on its Underlying
Securities.
[The Underlying Securities, which primarily consist of specify debt
security or asset backed security or a pool of such debt securities or asset
backed securities issued by one or more corporations, banking organizations,
insurance companies or special purpose vehicles (including trusts, limited
liability companies, partnerships or other special purpose entities)] [a debt
security or a pool of such debt securities, in each case which represents
obligations issued or guaranteed by a foreign government, political
subdivision or agency or instrumentality thereof issued by [specify issuers]]
[specify obligations of one or more foreign private issuers] [specify debt
security or a pool of such debt securities, in each case which represents
obligations of the United States of America, any agency thereof for the
payment of which the full faith credit of the United States of America is
pledged, or a United States government-sponsored organization created pursuant
to a federal statute], and having the characteristics described under "-
Composition" and under this subsection"- Description of Underlying
Securities." [The Depositor may not acquire any privately issued securities
unless the statutory holding period with respect to such security has
expired.]
Composition
As of the Cut-off Date, the following information will apply to the
Underlying Securities to be acquired by the Depositor:
% of
Principal Underly-
Name of Industry Amount ing Secu- Maturity Special Moody's S&P Fitch
Issuer CUSIP Classification Rank Coupon ($ MM) ties(1) Date Options(2) Rating Rating Rating
- -------- -------- -------------- ---- ------- --------- -------- -------- ---------- -------- ------ -------
______________
(1) ["*" denotes an Underlying Security which constitutes a Concentrated Underlying Security as
of the Cut-off Date (i.e. the principal balance of such Underlying Security constitutes 10% or
more of the aggregate principal balance of all Underlying Securities).] or
(2) [Describe any special put, call, redemption or conversion option applicable to each Underlying Security.]
[Composition of the Underlying Securities Pool
as of the Cut-off Date]
[Number of Underlying Securities: [ ]]
[Aggregate Principal Balance: $[ ]]
[Average Principal Balance: $[ ]]
[Largest Balance: $[ ]]
[Weighted Average Interest Rate: [ ]% per annum]
[Weighted Average Original Term to Maturity: [ ] years]
[Weighted Average Remaining Term to Maturity: [ ] years]
[Longest Remaining Term to Maturity: [ ] years]
[Based on publicly available information no],[the Depositor is not
aware that any] obligor of any Underlying Security was in default in the
payment of any installment of principal, interest [or premium (if any)] with
respect thereto. Any rating noted above with respect to any Underlying
Security is not a recommendation to purchase, hold or sell such Underlying
Security, and a rating may not remain for any given period of time or may be
lowered or withdrawn entirely by a rating agency in the future. See "Ratings"
herein and "Risk Factors - Ratings of the Certificates" in the accompanying
base prospectus regarding considerations applicable to the ratings of the
Certificates.]
Disclosure
The Deposited Assets [and certain other assets]] contributed to the
Trust represent the sole assets of the Trust that are available to make
distributions on the Certificates. This prospectus supplement relates only to
the Certificates being offered hereby and does not relate to an offering of
the Underlying Securities. Accordingly, the information contained herein is
intended primarily to describe the Underlying Securities and does not purport
to set forth the detailed terms of each Underlying Security or to provide the
type of information which would ordinarily be set forth in a prospectus or
private offering memoranda pursuant to which the Underlying Securities may
have been initially offered.
[Private placement offering memoranda relating to certain Underlying
Securities which were not publicly issued will not be made available to
Certificateholders. For an understanding of the material terms of such
Underlying Securities, Certificateholders may have to rely solely on the
following descriptions of the material terms of such Underlying Securities.]
[Copies of private placement offering memoranda related to [each of the ]
[certain of the] privately offered Underlying Securities will be furnished to
prospective purchasers of the Certificates upon request].
[Material Terms of Privately Issued Securities, Etc.]
[The following is a description of the material terms of the
Underlying Securities which are privately offered which has been taken solely
from the private placement offering memoranda related to such Underlying
Securities.] [SUMMARY OF MATERIAL TERMS OF PRIVATELY OFFERED UNDERLYING
SECURITIES.]
Underlying Securities Events of Default
[The following is a summary of the Underlying Security Events of
Default which are common to all of the Underlying Securities]:
o [failure to make scheduled payments of interest, principal, and
premium (if any) to holders of such Underlying Security when the
same shall become due;]
o [material breaches of certain representations, warranties or
covenants or failure to observe or perform in any material
respect any covenant or agreement which breach or failure
continues for a specified period of time after notice thereof is
given to the issuer of the Underlying Securities by the
Underlying Securities trustee or the holders of not less than a
specified percentage of such Underlying Securities;]
o [failure by the Underlying Securities Issuer to make any
required payment of principal (and premium, if any) or interest
with respect to certain of the other outstanding debt
obligations of the Underlying Securities Issuer or the
acceleration by or on behalf of the holders thereof of such
securities;]
o [certain events of bankruptcy or insolvency relating to the
Underlying Securities Issuer; [and]
o [describe any additional common events of default with respect
to the pool of Underlying Securities].]
Concentrated Underlying Securities
[The Underlying Securities have been issued pursuant to [an]
[indenture[s]] [fiscal agency agreement[s]] [certificate[s] of designation]
[pooling and servicing agreement[s]] [trust agreement[s]] between the
[various] [issuer[s] of the Underlying Securities and Underlying Securities
[trustee[s]] [fiscal agent[s]] [and describe others] (collectively, the
"Issuer Documents")]. With respect to all Underlying Securities which
constitute 10% or more of the Underlying Securities (the "Concentrated
Underlying Securities"), the following summary describes the material legal,
financial and other covenants of such Underlying Securities.]
[SUMMARY OF MATERIAL TERMS OF CONCENTRATED UNDERLYING SECURITIES.]
[Name such obligor] is subject to the informational requirements of
the Exchange Act and in accordance therewith files reports and other
information (including financial information) with the SEC [and makes
available to the public upon request certain annual reports containing
financial and other information]. You can request copies of these documents,
upon payment of a duplicating fee, by writing to the SEC. Please call the SEC
at (800) SEC-0330 for further information on the operation of the SEC's public
reference rooms. In addition, such reports and other information [can be
inspected at the offices of the [New York Stock Exchange at 20 Broad Street,
New York, New York 10005] [American Stock Exchange, 86 Trinity Place, New
York, New York 10006]] [may be obtained from [name such obligor], according to
its most recent annual report, upon written or oral request to [name such
obligor].]
[Description of Other Deposited Assets]
[The Swap Agreement will document an interest rate swap transaction
between the Trust and the Swap Counterparty under which the Trust will pay to
the Swap Counterparty the [fixed rate] [floating rate] coupon payments
received in respect of the Underlying Securities and receive from the Swap
Counterparty [floating rate] [fixed rate] payments. The swap transaction will
have the effect, subject to performance by the Swap Counterparty of its
obligations under the Swap Agreement, of converting the coupon received on the
Underlying Securities into the effective coupon the Trust will distribute with
respect to the Certificates.]
[The Swap Agreement will document a cross-currency swap transaction
between the Trust and the Swap Counterparty under which the Trust will pay to
the Swap Counterparty the [foreign currency] [dollar] payments received on the
Underlying Securities, and will receive from the Swap Counterparty [dollar]
[foreign currency] payments. The transaction will have the effect, subject to
performance by the Swap Counterparty of its obligations under the Swap
Agreement, of converting the currency of collections received on the
Underlying Securities into the currency in which the Trust will make
distributions with respect to the Certificates.]
[The Swap Agreement will document a total rate of return swap
transaction between the Trust and the Swap Counterparty under which the Trust
will pay to the Swap Counterparty the coupon, principal and premium payments
received on the Underlying Securities during the relevant period, and will
receive from the Swap Counterparty coupon, principal and premium payments
based on the increase in value of the index during the relevant period or make
payments to the Swap Counterparty based on the decrease in value of the index
during the relevant period. The Trust will not be required to make payments
under the total rate of return swap transaction if such payments would cause a
loss of principal to the Certificates. The transaction will have the effect,
subject to performance by the Swap Counterparty of its obligations under the
Swap Agreement, of converting the return on the Underlying Securities to the
return based on the performance of the index that the Trust will distribute on
the Certificates.]
[The Swap Agreement will document an option transaction between the
Trust and the Swap Counterparty under which the Trust will [purchase a put
option from] [grant a call option to] the Swap Counterparty with respect to
the Certificates or the Underlying Securities, and the Trust will make a
payment to the Swap Counterparty of ____, and the Swap Counterparty will make
a payment to the Trust of ____. [The call option will effectively reserve to
the Swap Counterparty the right to realize all or a portion of the increase in
the market value of specified Underlying Securities at or prior to the
maturity of the Certificates or to effect a conversion of the Certificates
into the right to receive another security.] [The put option will entitle the
Trust to put to the Swap Counterparty the Certificates at par, thereby
protecting the Trust from a decline in the market value of the related
Certificates.] [The Trust Agreement will provide that the Trust will
automatically exercise the put option, unless otherwise instructed by the
Certificateholders, if the market value of the Certificates on the exercise
date for the put option is less than the par value of such Certificates.]]
[The Swap Agreement documents a credit swap transaction, under which
the Swap Counterparty will receive payments from the Trust of ____% per annum
on payment dates which occur on each Distribution Date for the Certificates.
The Swap Agreement also provides that the Trust has the right to deliver to
the Swap Counterparty specified deliverable obligations of a specific entity
(the "Reference Entity") in exchange for the delivery of the Underlying
Securities or the proceeds of the Underlying Securities by the Swap
Counterparty to the Trust upon the occurrence of one or more defined credit
events with respect to the Reference Entity. Effectively, the credit swap
transaction will mitigate credit risks associated with holding the deliverable
obligation directly to which the Trust is otherwise exposed. [Describe Credit
Events]].
[The Swap Agreement documents a credit swap transaction, under which
the Trust will receive payments from the Swap Counterparty of ____% per annum
on payment dates which occur on each Distribution Date for the Certificates.
The Swap Agreement also provides that the Swap Counterparty has the right to
deliver to the Trust specified deliverable obligations of a Reference Entity
in exchange for the [payment of an agreed upon amount] [delivery of the
Underlying Securities or the proceeds of the Underlying Securities] by the
Trust to the Swap Counterparty upon the occurrence of one or more defined
credit events with respect to the Reference Entity. Effectively, the credit
swap transaction will expose the Trust to the credit risks associated with
holding the deliverable obligation directly.
[The notional amount of the [interest rate] [currency] [total rate of
return] [credit] swap transaction will be equivalent to the principal amount
of Certificates held by the Trust. Payment dates and accrual periods under the
Swap Agreement will match the Distribution Dates and interest accrual periods
on the Certificates. The [floating rate] [index value] applicable to payments
during each period under the Swap Agreement will be established by the
Calculation Agent on each payment date based on the value of [the [floating
rate] as of the ___ day prior to the first day of the interest accrual period]
[the index as of the ___ day prior to the last day of the interest accrual
period.]] The value of [floating rate] [index] will be determined by reference
to the [screen] or in the event such [screen] [rate] [value] is unavailable by
reference to quotations from market makers obtained by the Calculation Agent.]
[Description of the Call Option]
[On any Business Day on or after [________][On any Business Day after
the Call Option Holder gives notice indicating its intention to redeem the
Certificates,] the Call Option Holder may purchase, [in whole or in part,] the
outstanding Certificates from the Trust at a price equal to [the Certificate
Principal Balance of the Certificates plus accrued and unpaid interest to the
date of redemption] [plus a premium equal to [ ].] [If a Call Option is
exercised, [all or a portion of the] Class [ ] Certificates [and Class [ ]
Certificates] will be redeemed for an amount equal to $[ ] per Class [ ]
Certificate [and Class [ ] Certificate] plus accrued and unpaid interest to
the date of redemption.]
[Description of Credit Support]
[On or about the Closing Date, the Depositor and [credit support
provider] will enter into a [describe credit support agreement] (the "Credit
Support Agreement"). The Credit Support Agreement will be for the sole benefit
of the [Class [ ] Certificates [and the Class [ ] Certificates]]. The Credit
Support Agreement will constitute part of the assets owned by the Trust [to
the extent provided below] and will support or ensure the [servicing and]
[timely] [ultimate] distribution of amounts due or the Underlying Securities,
in the manner described below.]
[The Letter of Credit]
[The Letter of Credit will be irrevocable and will [support the
[timely][ultimate] remittance of amounts due with respect to the Underlying
Securities [and the Other Deposited Assets]. [The maximum amount that the
Trustee may draw under the Letter of Credit will initially be equal to $[ ].
The initial amount of the Letter of Credit will be $[ ]. Thereafter, the
amount of the Letter of Credit with respect to any Distribution Date will
equal [the lesser of (i) [ ]% of the aggregate Certificate Principal Balance
outstanding on the preceding Distribution Date (after giving effect to any
payment of principal made on such preceding Distribution Date) but in any
event not less than $[ ], and (ii)] the amount of the Letter of Credit on the
preceding Distribution Date, plus [(a) reimbursement of certain advances under
the Letter of Credit and (b) recoveries on defaulted Underlying Securities and
[ Other Deposited Assets] [describe other methods]. The Letter of Credit
expires on [ ], 20__. The Trustee will be obligated, in the event of a drawing
on the Letter of Credit, to pursue appropriate remedies against the Underlying
Securities, [ Other Deposited Assets], any other assets of the Trust, and any
realization thereon shall be paid to the letter of credit bank to the extent
of any amounts owing, in the manner and priority specified herein.]]
[Add language regarding the letter of credit bank with respect to its
debt ratings, activities it engages in, regulatory authorities having
jurisdiction over it and the nature of such regulation, a narrative
description of its assets, liabilities (including deposits) and equity, and
include an address for further information concerning the letter of credit
bank. In addition, to the extent that the letter of credit will cover payment
of 20% or more of the aggregate principal amount of the Certificates covered
thereby, provide information of financial and other matters with respect to
the letter of credit bank, if necessary.]
[The Surety Bond]
[The Surety Bond will guaranty [timely] [ultimate] distributions of
the principal of and premium (if any) and interest with respect to the Class [
] Certificates. The Surety Bond expires on [ ], 20__. The Trustee will be
obligated, in the event of a drawing on the Surety Bond, to pursue appropriate
remedies against the Underlying Securities, [ Other Deposited Assets], any
other assets of the Trust and any amounts realized thereon shall be paid to
the Surety Bond provider to the extent of any amounts owing, in the manner and
priority specified herein.]
[Describe the issuer of the Surety Bond including its debt rating,
activities it engages in, regulatory authorities having jurisdiction over it
and the nature of such regulation, a narrative description of its assets,
liabilities (including deposits) and equity, and include an address for
further information concerning the surety. In addition, to the extent that the
Surety Bond will cover payment of 20% or more of the aggregate principal
amount of the Certificates covered thereby, provide information of financial
and other matters with respect to the issuer of the Surety Bond, if
necessary.]]
[Reserve Account]
[Certain collections with respect to the Deposited Assets not
distributed with respect to the Certificates, the Deposited Assets, the
Certificate Account [the Reserve Account] [and] [the Call Rights Agreement]
shall be deposited in the Reserve Account.] Amounts on deposit in the Reserve
Account may be used by the Trustee to make payments of interest on the
Certificates to the extent that funds to make such payments are not otherwise
available. Immediately after any Distribution Date, amounts in the Reserve
Account in excess of [indicate formula] [may be distributed to the
Depositor].]
YIELD ON THE CERTIFICATES
[Describe how the yield on the Certificates may be impacted by
factors relating to the Deposited Assets and the manner and priority in which
collections thereon are allocated to the Certificateholders of each class of
the Certificates.] See "Maturity and Yield Considerations" in the accompanying
base prospectus.
DESCRIPTION OF THE CERTIFICATES
General
The Certificates will be issued pursuant to the Trust Agreement. See
"Description of the Trust Agreement." Each Certificate will represent an
undivided beneficial interest in the assets of the Trust which will primarily
consist of the Deposited Assets. The Trust's assets will be held by the
Trustee for the benefit of the Certificateholders.
The Certificates will consist of [ ] classes of certificates, the
class [ ] [ ] [variable rate] pass- through certificates (the "Class [ ]
Certificates") and the class [ ] [[ ]%] [fixed rate] pass-through certificates
(the "Class [ ] Certificates" and together with the Class [ ] Certificates,
the "Certificates") each of which are being offered hereby. The Certificates
will be denominated and distributions with respect thereto will be payable in
the Specified Currency. The Certificates represent in the aggregate the entire
beneficial ownership interest in the Trust. The Class [ ] Certificates will
have in the aggregate an initial [Certificate Principal Balance] [Notional
Amount] of [$]________ (approximate) and the Class [ ] Certificates will have
in the aggregate an initial [Certificate Principal Balance] [Notional Amount]
of [$]________ (approximate).]
The Certificates [(other than the Class [ ] Certificates (the
"Definitive Classes"))] will be in registered form and will be issued,
maintained and transferred on the book-entry records of DTC and its
participants in minimum denominations of $[1,000] and [integral multiples
thereof] [multiples of $[25] in excess thereof].
The Certificates will each initially be represented by one or more
global certificates registered in the name of the nominee of DTC (together
with any successor clearing agency selected by the Depositor, the "Clearing
Agency"), except as provided below. DTC's nominee will be CEDE & CO. No holder
of an interest in any registered Certificate will be entitled to receive a
definitive certificate representing such person's interest, except as set
forth below under "- Definitive Certificates." Unless and until definitive
certificates are issued under the limited circumstances described herein, all
references to actions by Certificateholders with respect to any such
Certificates shall refer to actions taken by DTC upon instructions from its
participants. See "- Definitive Certificates" below and "Description of the
Certificates - Global Securities" in the accompanying base prospectus.
Under the rules, regulations and procedures creating and affecting
DTC and its operations, DTC will take action permitted to be taken by a
Certificateholder under the Trust Agreement only at the direction of one or
more participants to whose DTC account such Certificates are credited.
Additionally, DTC will take action with respect to specified Voting Rights
only at the direction and on behalf of participants whose holdings of such
Certificates evidence such specified Voting Rights. DTC may take conflicting
actions with respect to Voting Rights, to the extent that participants whose
holdings of Certificates evidence such Voting Rights, authorize such divergent
action.
Definitive Certificates
Definitive certificates will be issued to Certificateholders or their
nominees, respectively, rather than to DTC or its nominee, only if (i) the
Depositor advises the Trustee in writing that DTC is no longer willing or able
to properly discharge its responsibilities as Clearing Agency with respect to
each class of Certificates [(other than the Definitive Classes)] and the
Depositor is unable to locate a qualified successor or (ii) the Depositor, at
its option, elects to terminate the book-entry system through DTC.
Upon the occurrence of any event described in the immediately
preceding paragraph, the Trustee is required to notify all Certificateholders
of the availability through DTC of definitive certificates. Upon surrender by
DTC of the definitive certificates representing the Certificates [(other than
the Definitive Classes of certificates)] and receipt of instructions for
re-registration, the Trustee will reissue such Certificates as definitive
certificates issued in the respective principal amounts owned by the
individual owners of the Certificates. Thereafter the Trustee will recognize
the holders of the definitive certificates as Certificateholders under the
Trust Agreement.
[Listing on the New York Stock Exchange]
[The Certificates have been authorized for listing, upon official
notice of issuance, with [the New York Stock Exchange, Inc. (the "NYSE")].
There can be no assurance that the Certificates, once listed, will continue to
be eligible for trading on [the NYSE].
Interest
The holders of the Class [ ] Certificates shall be entitled to
distributions of interest calculated on the Certificate Principal Balance of
the Class [ ] Certificates at [a fixed rate equal to [ ]% per annum] [a
variable rate equal to [describe variable rate calculation]] and the holders
of the Class [ ] Certificates shall be entitled to distributions of interest
calculated on the Certificate Principal Balance of the Class [ ] Certificates
at [a fixed rate of [ %] per annum] [a variable rate equal to [describe
variable rate calculation]]. [The initial Variable Pass-Through Rates for the
Class [ ] Certificates [,] [and] the Class [ ] Certificates are approximately
[ ]% and [ ]% per annum, respectively.]
For each Distribution Date, interest shall accrue on each Certificate
during the period (i) for the first Distribution Date, beginning on and
including the Closing Date and ending on but excluding [
], 200__, and (ii) for each succeeding Distribution Date
[beginning on the first day of the month and ending on the last day of such
month] [beginning on and including the prior Distribution Date, to but
excluding the current Distribution Date] [describe quarterly.] [describe
semi-annually] (the "Interest Accrual Period").
[On each Distribution Date, the interest payable to each holder of
the Class [ ] Certificates shall be equal to the product of (x) a fraction
equal to the actual number of days elapsed in the related Interest Accrual
Period divided by 360, (y) (i) the applicable Class [ ] Certificate Principal
Balance as of the preceding Distribution Date (after giving effect to all
payments of principal made on such preceding Distribution Date) (or in the
case of the initial Distribution Date, the Class [ ] Certificate Principal
Balance as of the Closing Date) and (ii) the Class [ ] Pass-Through Rate for
the related Interest Accrual Period. Such amounts will be distributed to
Certificateholders entitled thereto who are beneficial holders of record as of
the day immediately preceding such Distribution Date (in each case, the
"Record Date"), to the extent that Available Funds (as defined herein) on
deposit in the Certificate Account are sufficient to pay interest due on the
Class [ ] Certificates. [The right of the Class [ ] Certificateholders to
receive distributions of interest will be subordinated to the rights of the
Class [ ] Certificateholders to receive distributions of interest to the
extent described herein.]]
[On each Distribution Date, the interest payable to each holder of
the Class [ ] Certificates shall be equal to one-half] the product of (a) the
Class A-[ ] Certificate Rate and (b) the applicable Certificate Principal
Balance for the Class A-[ ] Certificates as of the preceding Distribution Date
(after giving effect to all payments of principal made on such preceding
Distribution Date) (or in the case of the initial Distribution Date, the Class
[ ] Certificate Principal Balance as of the Closing Date). Such amounts will
be distributed to Certificateholders entitled thereto who are beneficial
holders of record as of the day immediately preceding such Distribution Date
(in each case, the "Record Date"), to the extent that Available Funds (as
defined herein) on deposit in the Certificate Account are sufficient to pay
interest due on the Class [ ] Certificates. [The right of the Class [ ]
Certificateholders to receive distributions of interest will be subordinated
to the right of the Class [ ] Certificateholders to receive distributions of
interest to the extent described herein.]]
Principal
The Certificate Principal Balance of each Certificate represents the
maximum amount that the holder thereof will be entitled to receive as
distributions of principal from future collections on the Deposited Assets.
The outstanding Certificate Principal Balance of each Certificate will be
reduced to the extent of (x) distributions of principal thereon, (y) net
losses realized on any Deposited Asset (such amounts "Realized Losses"), and
(z) any Extraordinary Trust Expenses (as defined herein) incurred by the
Trustee with the consent of the Certificateholders allocated thereto.
Distributions of principal will be made on a pro rata basis to the
Certificateholders of each Class. On each Distribution Date, all payments in
respect of principal on the Deposited Assets received by the Trustee during
the preceding Collection Period, plus any amounts received in connection with
the liquidation or default of any Deposited Assets, will be distributed by the
Trustee to the Certificateholders of record as of the preceding Record Date.
[The right of the Class [ ] Certificateholders to receive distributions of
principal will be subordinated to the right of the Class [ ]
Certificateholders to receive distributions of interest and principal to the
extent described herein.]
[Index Linked Certificates]
[The Class [ ] Certificates are "Index-Linked Certificates" as
described in the accompanying base prospectus. Distributions of [interest]
[and principal] with respect to the Class [ ] Certificates will depend on the
value of the [specify index]. The [specify index] reflects the appreciation or
depreciation in the price of a designated [group of securities, commodities,
mutual funds, currencies, intangibles, goods or articles or other objective
price, economic or other indexed asset] over a given period of time. Depending
on the performance of [the [specify index] over the related Interest Accrual
Period][the performance of the [specify index] over the time the Class [ ]
Certificates are outstanding] [the value of the [specify index] on the final
scheduled distribution date for the Class [ ] Certificates],
Certificateholders may receive a lesser return of principal on the Class [ ]
Certificates than they would have received had they held the Underlying
Securities.]
[The value of the [specify index] is determined by changes in the
prices of the [securities, commodities, mutual funds, currencies, intangibles,
goods or articles or other objective price, economic or other indexed asset]
which make up the index. Such changes generally depend on factors -- such as
economic and political events and the supply of and demand for [indexed
assets] -- that the Depositor [, the Swap Counterparty] and the Trustee and
their affiliates do not control and cannot foresee.]
[[The risk of [decreased interest payments] [and loss of principal]
as a result of the linkage of payments on Index-Linked Certificates to the
[specify index] is substantial. Prospective purchasers should consult their
own financial and legal advisors as to the risks entailed by an investment in
Index-Linked Certificates.]]
[Subordination of Class [ ] Certificates]
[Distributions of interest on the Class [ ] Certificates will be
subordinated in priority of payment to distributions of interest (but not
principal or premium) due on the Class [ ] Certificates, and distributions of
principal on the Class [ ] Certificates will be subordinated in priority of
payment to distributions of interest and principal due on the Class [ ]
Certificates. In addition, distributions of premium, if any, on the Class [ ]
Certificates, will be subordinated in priority of payment to distributions of
interest, principal and premium due on the Class [ ] Certificates.]
Distributions
On each Distribution Date, the Trustee will apply the Available Funds
on deposit in the Certificate Account to make the following distributions in
the following order of priority:
(a) the Trustee will apply Interest Proceeds as follows:
(i) to the Trustee, as reimbursement for all
Extraordinary Trust Expenses incurred by the
Trustee in accordance with the Trust Agreement [up
to [ ]];
(ii) [to the [providers of the Other Deposited
Assets] [providers of Credit Support], any
amounts required to be paid or reimbursed
to, or deposited with, any such person in
accordance with the terms of the [Other
Deposited Assets Agreement and/or Credit
Support Agreement]];
(iii) to the Class [ ] Certificateholders, the
Accrued Certificate Interest for the Class
[ ] Certificates;
(iv) to the Class [ ] Certificateholders, the
Accrued Certificate Interest for the Class
[ ] Certificates;
(v) [to the Reserve Account, an amount equal
to [the Required Reserve Account Amount]];
(vi) all remaining amounts, if any, to the
Depositor;
(b) the Trustee will apply Principal Proceeds as follows:
(i) [to the Trustee as reimbursement for all
Extraordinary Trust Expenses not reimbursed in
clause (a)(i) above;]
(ii) to the Class [ ] Certificateholders, up to the
Class [ ] Certificate Principal Balance; and
(iii) to the Class [ ] Certificateholders, up to the
Class [ ] Certificate Principal Balance;
(c) the Trustee will apply Premium Proceeds (if any) as follows:
(i) to the Class [ ] Certificateholders, [in
the proportion that the Certificate
Principal Balance of the Class [ ]
Certificates bears to the Certificate
Principal Balance of the Class [ ]
Certificates]; and
(ii) to the Class [ ] Certificateholders, [in
the proportion that the Certificate
Principal Balance of the Class [ ]
Certificates bears to the Certificate
Principal Balance of the Class [ ]
Certificates].
Collections received on the Deposited Assets during any Collection
Period may not be sufficient, after payment of [all] Extraordinary Trust
Expenses [and payment of [all] [certain] amounts required to be paid to the
Other Deposited Assets Providers [and][or] Credit Support Providers] for such
period, to make all required distributions to the Certificateholders. To the
extent Available Funds are insufficient to make any such distributions due to
any such series or class, any shortfall will be carried over and will be
distributable on the next Distribution Date on which sufficient funds exist to
pay the shortfall.
For purposes hereof, the following terms have the following meanings:
"Available Funds" means for any Distribution Date the sum of
(a) all amounts actually received on or with respect to the
Underlying Securities (including Liquidation Proceeds and investment
income on amounts on deposit in the Certificate Account [and the
Reserve Account]) during the related Collection Period, [(b) amounts
received by the Trust as of such Distribution Date under the terms of
any Credit Support Instruments described herein,] [(c)] [all amounts
received by the Trust under the terms of any Other Deposited Assets,]
[(d)] [all amounts transferred to the Certificate Account from the
Reserve Account to cover shortfalls in the amounts available to pay
Required Interest on the Certificates, (e) [any additional amounts
that the Depositor may remit to the Trustee from time to time
according to the terms of the Trust Agreement for application as
Available Funds.]
"Accrued Certificate Interest" shall mean the interest to be
distributed to the Class A-[ ] Certificates and the Class A-[ ]
Certificates on each Distribution Date which shall consist of (i)
previously accrued Required Interest Amount that remained unpaid on
the previous Distribution Date (on a cumulative basis) with respect
to each class of Certificates and (ii) Required Interest Amount
accrued during the related Interest Accrual Period with respect to
each class of Certificates.
"Certificate Principal Balance" means for any Class of
Certificates [(other than the Class [ ] Certificates)] as of any date
of determination an amount equal to the initial Certificate Principal
Balance thereof, reduced by the aggregate of (a) all amounts
allocable to principal previously distributed with respect to such
Class of Certificates, (b) any reductions attributable to
Certificates surrendered in exchange for Underlying Securities and
(c) any reductions in the Certificate Principal Balance based on
allocations to such Certificates of (i) Realized Losses allocable to
principal on the Deposited Assets and (ii) Extraordinary Trust
Expenses as allocated to such Class pursuant to the Series
Supplement.
"Eligible Investments" means, with respect to the
Certificates [,those investments acceptable to the Rating Agency as
being consistent with the rating of such Certificates, as specified
in the Trust Agreement. Generally, Eligible Investments must be
limited to obligations or securities that mature not later than the
Business Day prior to the next succeeding Distribution Date.]
"Extraordinary Trust Expenses" means any and all costs,
expenses or liabilities of the Trustee incurred on behalf of the
Trust, which [100%] of the Certificateholders have expressly
consented to and which arise out of the establishment, existence or
administration of the Trust, other than [(i)] customary fees and
expenses of the Trustee incurred in the ordinary course of
administration of the Trust [and (ii) costs and expenses payable by a
particular Certificateholder, the Trustee or the Depositor pursuant
to the Trust Agreement.]
"Interest Proceeds" shall mean the portion of Available
Funds which includes (i) all payments of interest (including any
accrued interest) received with respect to any Deposited Assets, (ii)
all payments of interest received upon a sale or other disposition of
any defaulted Underlying Security, (iii) all payments of interest
received as part of any recovery on any defaulted Underlying
Security, (iv) the interest portion of any amount received in
connection with a redemption of an Underlying Security, (v) all
amendment and waiver fees, late payment fees, commitment fees and
other commissions received with respect to any Deposited Asset and,
(vi) any other amount the Depositor determines to characterize as
"Interest Proceeds".
["Notional Amount" means with respect to the Class [ ]
Certificates, as of any date of determination an amount equal to
[specify amount].] [Holders of the Class [ ] Certificates are not
entitled to receive any distributions allocable to principal.]
"Premium Proceeds" shall mean the portion of Available Funds
which includes (i) all payments of premium received from the Call
Holder under the Call Rights Agreement, (ii) all premiums (including
make whole amounts) received in connection with any redemption or
other prepayment of any Underlying Security, and (iii) any other
amount the Depositor determines to characterize as "Premium
Proceeds".
"Principal Proceeds" shall mean the portion of Available
Funds which includes (i) all payments of principal (including
principal prepayments) received with respect to any Deposited Assets,
(ii) all sinking fund payments, (iii) payments of principal received
upon the maturity of any Underlying Security, (iv) the principal
portion of any amount received in connection with a redemption of an
Underlying Security, (v) all payments received upon the sale or other
disposition of any defaulted Underlying Security allocable to
principal, (vi) the principal portion of any recovery received on any
defaulted Underlying Security and (vii) any other amount the Depositor
determines to characterize as "Principal Proceeds".
"Required Interest Amount" means [(I) ][for the Class [ ]
Certificates, on any Distribution Date, amount equal to the product
of (x) a fraction equal to the actual number of days elapsed in the
related Interest Accrual Period divided by 360, (y) (i) the
applicable Class [ ] Certificate Principal Balance as of the
preceding Distribution Date (after giving effect to all payments of
principal made on such preceding Distribution Date) (or in the case
of the initial Distribution Date, the Class [ ] Certificate Principal
Balance as of the Closing Date) and (ii) the Class [ ] Pass-Through
Rate for the related Interest Accrual Period] [and [(II)] for the
Class [ ] Certificates, an amount equal to one-half] the product of
(a) the Class A-[ ] Certificate Rate and (b) the applicable
Certificate Principal Balance for the Class A-[ ] Certificates as of
the preceding Distribution Date (after giving effect to all payments
of principal made on such preceding Distribution Date) (or in the
case of the initial Distribution Date, the Class [ ] Certificate
Principal Balance as of the Closing Date).
[Notwithstanding the priorities described above, holders of
the Class [ ] Certificates and the Class [ ] Certificates will be entitled to
receive on any Distribution Date 100% of all principal collections received in
the related Collection Period with respect to the Deposited Assets, to be
distributed [on a pro rata basis] which amounts will reduce the Certificate
Principal Balance of the Class [ ] Certificates and the Class [ ]
Certificates, if any of the following conditions shall be satisfied: [describe
conditions, if any, by which a certain class is given 100% of the principal
cash flow other than pursuant to subordination that is in effect from the
Closing Date].]
[Advances
Advances, if any, are intended to maintain a regular flow of
interest, principal and premium (if any) payments to holders of the class or
classes of Certificates entitled thereto, rather than to guarantee or insure
against losses. On or before each Distribution Date, subject to the following
limitations, the Trustee will be obligated to advance, or cause to be
advanced, its own funds [or funds available in the Certificate Account [or the
Reserve Account] that are not included in the Available Funds for the
Distribution Date], in an amount equal to the sum of the [aggregate of
payments of interest, principal, and premium (if any) on the Deposited Assets
[(net of any Retained Interest)], that were delinquent on the related
Determination Date (each such payment, an "Advance")].
[Advances are required to be made only to the extent they are deemed
by the Trustee to be recoverable from (i) late collections on the related
Underlying Securities, (ii) [payments due on Other Deposited Assets, [and]
[or] any Credit Support], or (iii) proceeds from the disposition of any
Underlying Security [or Other Deposited Assets [and] [or] any Credit Support]
("Liquidation Proceeds"). The Trustee will not be required to make any
Advances with respect to reductions in the amount of payments on any Deposited
Asset due to bankruptcy proceedings with respect to any Underlying Securities
Issuer [or any Other Deposited Assets Provider [or] any Credit Support
Provider ]. In addition, any Advances previously made in respect of any
Underlying Security [or Other Deposited Asset [or] any Credit Support ] that
are deemed by the Trustee to be nonrecoverable from late collections on the
related Underlying Securities, [payments due on Other Deposited Assets [and]
[or] any Credit Support] or Liquidation Proceeds may be reimbursed to the
Trustee out of any funds in the Certificate Account received on the Deposited
Assets prior to the distributions on the Certificates.]
Allocation of Losses; Subordination
[The subordination described herein provided by the Class [ ]
Certificates is designed to protect holders of the Class [ ] Certificates from
certain losses and other shortfalls with respect to the Deposited Assets. As a
result, losses and other shortfalls with respect to the Deposited Assets will
be borne by the Class [ ] Certificates, to the extent described below, only if
such losses and other shortfalls are not so covered by reductions in the
Certificate Principal Balance of the Class [ ] Certificates, or the coverage
in respect thereof has been exhausted.]
[Realized Losses will be allocated on any Distribution Date as
follows: [describe allocation among the various classes].]
[Restrictions on Transfer of the Class [ ] Certificates]
[Because the Class [ ] Certificates are subordinate to the Class [ ]
Certificates to the extent set forth herein, the Class [ ] Certificates may
not be purchased by or transferred to a Plan except upon the delivery of an
opinion of counsel as described herein. See "ERISA Considerations."]
DESCRIPTION OF THE TRUST AGREEMENT
General
The following summary of material provisions of the Trust Agreement
does not purport to be complete and is qualified in its entirety by reference
to the detailed provisions of the Trust Agreement, a copy of which is
available upon request from the Trustee.
The Certificates will be issued pursuant to the Trust Agreement, a
form of which is filed as an exhibit to the registration statement. A Current
Report on Form 8-K relating to the Certificates which contains a copy of the
Standard Terms and the Series 20[ ]-[ ] Series Supplement, as executed will be
filed by the Depositor with the SEC following the issuance and sale of the
Certificates. The assets of the Trust created under the Trust Agreement will
consist of:
o the Deposited Assets [(exclusive of any Retained Interest, which
is not part of the Trust)];
o all payments on or collections in respect of the Deposited
Assets due after the Cut-off Date, together with any proceeds
thereof[;]
o [the Certificate Account [and the Reserve Account] [;]
o [the rights of the Depositor under the purchase agreements
between the Depositor and each seller of the Underlying
Securities, to the extent assigned to the Trust][;]
o [the rights of the Depositor under all other agreements related
to the [Other Deposited Assets] [and] [the Credit Support];
[and]
o [the rights of the Depositor under the Call Option Agreement].
Reference is made to the accompanying base prospectus for important
information in addition to that set forth herein regarding the Trust, the
terms and conditions of the Trust Agreement and the Certificates. The
following summaries of certain provisions of the Trust Agreement do not
purport to be complete and are subject to the detailed provisions contained in
the form of Trust Agreement, to which reference is hereby made for a full
description of such provisions, including the definition of certain terms used
herein.
Assignment of Deposited Assets
On the [Closing Date], the Depositor will contribute to the Trust:
(i) the Underlying Securities, [(ii)] [the Other Deposited Assets,] [and (iii)
the Credit Support], together with all interest, principal, and premium (if
any) received on or with respect to such Deposited Assets after the Cut-off
Date. The Deposited Assets will not include amounts received as principal,
interest, and premium (if any) for periods prior to the [Cut-off Date] [and
amounts received in respect of any Retained Interest]. The Trustee will
concurrently deliver to the Depositor, the Certificates in consideration for
the Depositor's contribution of the Deposited Assets to the Trust. Each
Underlying Security will be identified in a schedule appearing as an exhibit
to the Trust Agreement. Such schedule will include certain statistical
information with respect to each Underlying Security as of the [Cut-off Date],
and in the event any Underlying Security is a Concentrated Underlying
Security, such schedule will include, to the extent applicable, information
regarding the payment terms thereof [, the Retained Interest, if any, with
respect thereto,] the maturity or term thereof, the rating, if any, thereof
and certain other information with respect thereto.
In addition, with respect to each Underlying Security, the Depositor
will promptly deliver, or cause to be delivered, to the Trustee, all documents
necessary to transfer ownership of each such Underlying Security to the
Trustee. [In addition, the Depositor shall deliver to the Trustee all
documents related to the [Other Deposited Assets and/or Credit Support] in
accordance with the terms of the Trust Agreement.] The Trustee will review
such documents within [ ] days of its receipt thereof, and will promptly
notify the Depositor of any missing or defective documents. The Trustee will
hold such documents in trust for the benefit of the Certificateholders.
The Trustee
[ ], a [ ] [ ], (or any successor trustee), will act as Trustee for
the Certificateholders and the Trust pursuant to the Trust Agreement. The
Trustee's offices are located at [ ] and its telephone number is [ ].
[As compensation for its services under the Trust Agreement, the
Trustee shall be entitled to receive a periodic fee, which shall be paid by
the Depositor and not from the Deposited Assets. [On each Distribution Date
the Depositor will pay to the Trustee an amount equal to [one half] [one
quarter] [one twelfth] of the annual Trustee's Fee. Failure by the Depositor
to pay such amount on any Distribution Date shall not entitle the Trustee to
any payment or reimbursement from the Depositor, nor shall such failure
release the Trustee from its duties under the Trust Agreement.] Extraordinary
Trust Expenses shall not be paid out of the Deposited Assets unless [100%] of
the Certificateholders of each of the Class [ ] and Class [ ] Certificates
then outstanding vote to require the Trustee to incur such Extraordinary Trust
Expenses.]
[The Trust Agreement will provide that the Trustee and any director,
officer, employee or agent of the Trustee will be indemnified by the Trust and
will be held harmless against any loss, liability or expense incurred in
connection with any legal action relating to the Trust Agreement or the
Certificates or the performance of the Trustee's duties under the Trust
Agreement, other than any loss, liability or expense
o that constitutes a specific liability of the Trustee under the
Trust Agreement; or
o that is incurred by reason of willful misconduct, bad faith or
negligence in the performance of the Trustee's duties under the
Trust Agreement or as a result of a breach, or by reason of
reckless disregard, of the Trustee's obligations and duties
under the Trust Agreement.]
The Trustee may resign or may be removed by the Depositor at any
time, in which event the Depositor will be obligated to appoint a successor
trustee. Any successor trustee must be a [bank or trust company] organized, in
good standing, conducting business, and authorized to exercise corporate trust
powers, under the laws of the United States or any state thereof, have
combined capital and surplus of at least $[50,000,000], and be subject to
supervision or examination by U.S. federal or state banking authorities. Any
resignation or removal of the Trustee and appointment of a successor trustee
will not become effective until acceptance of the appointment by such
successor trustee.
Collections
General. The Trustee will make reasonable efforts to collect all
scheduled payments due on the Deposited Assets and will pursue such collection
procedures, if any, as it would follow with respect to comparable financial
assets that it held for its own account, provided that such procedures are
consistent with the Trust Agreement, [and [describe any related instrument
governing any Other Deposited Assets and/or Credit Support]] and provided
that, it shall not be required to expend or risk its own funds.
Realization upon Defaulted Deposited Assets. In the event of the
occurrence of (i) an Event of Default with respect to any Underlying Security
or (ii) an acceleration of the date of maturity of any Underlying Security in
connection with a default thereon, the Depositor shall, within __ days of the
occurrence of such event [instruct the Trustee to make a distribution
"in-kind" of the related Underlying Security to the Certificateholders on a
pro rata basis in proportion to their outstanding Certificate Principal
Balances][instruct the Trustee to direct the Market Agent to sell such
Underlying Security and distribute the proceeds of such sale to the
Certificateholders pro rata in accordance with their respective Certificate
Principal Balances. If the Depositor instructs the Trustee to make such an
"in-kind" distribution to the Certificateholders, the procedures described
herein under "Collections - "In-kind" Distributions by the Depositor" will
apply.
"In-kind" Distributions by the Depositor. If the Depositor instructs
the Trustee to make an "in- kind" distribution to the Certificateholders,
individual Certificateholders may elect to either (x) receive such "in-kind"
distribution of the related Underlying Security or (y) have the Depositor (or
its Affiliate) sell, their allocable share of such Underlying Security in lieu
of receiving such "in-kind" distribution. If a Certificateholder determines to
accept an "in-kind" distribution, the Trustee shall distribute to such
Certificateholder its pro rata share of the related Underlying Security. If as
a result of any minimum denomination requirements applicable to the Underlying
Securities, the Trustee cannot make a full distribution to such
Certificateholders of their pro rata share of such Underlying Securities, the
Depositor will instruct the Trustee to direct the Market Agent to sell, in
accordance with the Bidding Procedures, the portion of such Underlying
Securities which cannot be sold in compliance with the applicable minimum
denomination requirements. The amount of the Underlying Securities to be sold
by the Market Agent will equal the difference between such Certificateholder's
pro rata share of such Underlying Securities held by the Trust and the maximum
amount of such Underlying Securities that can be distributed to such
Certificateholder in compliance with the applicable minimum denomination
requirements with respect to such Underlying Securities.
Sale by the Depositor. In the event the Underlying Securities,
subject to distribution, are to be sold rather than distributed in kind, as
described herein; the Depositor will instruct the Trustee to direct the Market
Agent to sell the defaulted Underlying Securities in accordance with the
Bidding Procedures described herein under "Collections - Bidding Procedures"
and upon disposition of such Underlying Securities, the Trustee will
distribute the proceeds of such sale to the Certificateholders.
Bidding Procedures. Prior to selling Underlying Securities, the
Market Agent shall solicit bids from not less than 3 dealers in such
securities (which bidders may include Banc of America Securities LLC) for the
sale of such Underlying Securities with settlement thereof on or before the
third Business Day after such sale. Each bid shall be solicited from a
financial institution with not less than $100 million in assets under
management or $100 million in invested assets. Neither the Market Agent nor
the Trustee shall be responsible for the failure to obtain a bid provided the
Market Agent has made reasonable efforts to obtain bids. In the event one or
more bids are received by the Market Agent, the Market Agent shall accept the
highest bid received, subject to best execution. If a bid for the purchase of
an Underlying Security has been accepted by the Market Agent but the sale has
failed to settle on the proposed settlement date, the Market Agent shall
solicit new bids. Upon any sale of any applicable Underlying Security, the
proceeds of such sale (less expenses and commissions) shall be distributed to
the Certificateholders pro rata, in proportion to their respective Certificate
Principal Balances no later than [two] Business Days after receipt of
immediately available funds. In the event the Market Agent receives no bids to
purchase such Underlying Security by the close of business on the fifth
Business Day after the distribution of bid solicitations, [or is unable to
settle with any Purchaser within [15] days from the date the Market Agent was
first directed to sell such Underlying Security,] the Trustee shall distribute
such Underlying Security "in kind" to the Certificateholders on a pro rata
basis in proportion to their respective Certificate Principal Balances;
provided, however, that if the bidding process is undertaken to comply with
any minimum denomination requirement, the Market Agent shall repeat the
foregoing bid solicitation until such Underlying Securities have been sold.
Liquidated Underlying Securities. If such Underlying Security is
liquidated and the proceeds of such liquidation are less than the sum of (i)
the outstanding principal balance of the defaulted Underlying Security, (ii)
interest accrued thereon at the applicable interest rate and (iii) the
aggregate amount of expenses incurred by the Trustee in connection with such
liquidation to the extent reimbursable from the assets of the Trust under the
Trust Agreement, the Trust will realize a loss in the amount of such
difference. The Trustee will be entitled to withdraw or cause to be withdrawn
from the net proceeds recovered on any defaulted Underlying Security, prior to
the distribution of such proceeds to Certificateholders, amounts representing
its compensation with respect to such Underlying Security, including
unreimbursed administrative expenses incurred to liquidate such Underlying
Security and any unreimbursed advances of delinquent payments made with
respect to such Underlying Security.
[Defaulted Other Deposited Assets/Credit Support Agreement].[Upon
discovery or notice that a default has occurred with respect to the [describe
Other Deposited Assets Agreement and/or Credit Support Agreement], the
Trustee, on behalf of the Certificateholders, will present claims under the
[describe Other Deposited Assets Agreement and/or Credit Support Agreement],
and will take such reasonable steps as are necessary to receive payment or to
permit recovery thereunder. All collections by, or on behalf of, the Trustee
under the [describe Other Deposited Assets Agreement and/or Credit Support
Agreement] are to be deposited in the Certificate Account.
Underlying Securities Reporting Failure. In the event an issuer of an
Underlying Security (the outstanding principal balance of which exceeds ten
percent (10%) of the aggregate principal balance of the Underlying Securities)
ceases to file periodic reports (to the extent such periodic reports are
required to be filed by such Underlying Securities Issuer under the Exchange
Act), the Depositor shall, within a reasonable period of time after such
failure to file such periodic report, instruct the Trustee to make a
distribution "in-kind" of the related Underlying Security to the
Certificateholders on a pro rata basis in proportion to their outstanding
Certificate Principal Balances. An Underlying Securities Issuer shall not be
deemed to have ceased filing required periodic reports for this purpose merely
because reporting by such issuer is delayed or temporarily suspended.
Accordingly, the requirement above to make an "in- kind" distribution of an
Underlying Security shall not apply unless an Underlying Securities Issuer
either (x) states in writing that it intends permanently to cease filing
reports required under the Exchange Act or (y) fails to file any required
reports for one full calendar year. If the Depositor instructs the Trustee to
make such an "in-kind" distribution to the Certificateholders, the procedures
described herein under "Collections - "In-Kind" Distributions by the
Depositor" will apply.
Termination Events
A termination event ("Termination Event") with respect to any Class
of Certificates under the Trust Agreement, will consist of:
o a default in the payment of the Required Interest Amount on any
Class of Certificates after the same becomes due and payable
[(subject to any applicable grace period)];
o a failure to pay to the Certificateholders on each Distribution
Date amounts received on the Deposited Assets allocable to
principal or a failure to pay to the Certificateholders the
Certificate Principal Balance of their Certificates [on the
Final Scheduled Distribution Date];
o failure to observe or perform in any material respect any
covenants or agreements contained in the Trust Agreement which
failure has a material adverse effect on the Certificateholders
and continues unremedied for [60 days] after written notice is
given to the Trustee or Certificateholders representing greater
than [50%] of the outstanding Certificate Principal Balance of
the Certificates;
o the Trust or the Deposited Assets allocable to principal
becomes subject to registration as an "investment company"
under the Investment Company Act of 1940;
o [a default in the payment of any amount to be paid under the
terms of any [describe any Other Deposited Asset] [and/or]
[describe Credit Support];
o the occurrence of certain bankruptcy events with respect to the
Trust; and
o [the occurrence and continuance of such other events specified
in the Series Supplement.]
If a Termination Event involving a bankruptcy event were to occur and
be continuing, the Certificate Principal Balance and any accrued interest on
the Certificates will be immediately due and payable without demand,
presentment or notice by any Certificateholder. If any other Termination Event
described above shall have occurred and be continuing (i) the Trustee, by
notice to the Depositor or (ii) the Holders of not less than [50%] of the
Certificate Principal Balance of the Certificates, by notice to the Depositor
and to the Trustee, may declare the Certificate Principal Balance of the
Certificates to be immediately due and payable and upon any such declaration,
such amounts together with all accrued and unpaid interest due thereon (if
any) shall become immediately due and payable. The Trust Agreement will
provide that, upon the declaration of a Termination Event, the Trustee will
give to the Certificateholders notice, transmitted by mail, of any uncured or
unwaived Termination Events known to it. [However, except in the case of a
Termination Event relating to the payment of interest, principal or premium
(if any), on any of the Underlying Securities, the Trustee will be protected
in withholding such notice if in good faith it determines that the withholding
of such notice is in the interest of the Certificateholders of such class.]
If the Certificates are accelerated, the Trustee may, at the
direction of the Certificateholders, sell the Deposited Assets in accordance
with the terms described in the Trust Agreement and use the proceeds to pay
certain obligations of the Trust and to pay interest, principal and premiums
(if any), remaining unpaid on the Certificates.
No holder of any Certificate will have the right to institute any
proceeding with respect to the Trust Agreement, unless (i) the holder
previously has given to the Trustee written notice of a continuing breach,
(ii) the Certificateholders of such series evidencing not less than the [ ]%
of the Certificate Principal Balance of the Certificates have requested in
writing that the Trustee institute such proceeding in its own name as Trustee,
(iii) the holder or holders have offered the Trustee reasonable indemnity,
(iv) the Trustee has for [15] days failed to institute such proceeding and (v)
no direction inconsistent with such written request has been given to the
Trustee during such [15-day] period by the Certificateholders of such series
evidencing not less than the Required Percentage.
Voting Rights
[At all times,] [Subject to the succeeding paragraph,] the voting
rights will be allocated among all Certificateholders in proportion to the
then outstanding Certificate Principal Balances [or Notional Amounts] of each
class of Certificates. [Specify whether and under what circumstances voting
will be class-by-class.]
[Specify conditions, if any, under which allocation of Voting Rights
might change from the foregoing.] ["Required Percentage-Amendment" of Voting
Rights necessary to consent to amendment or modification of the Trust shall be
[ %].] ["Required Percentage-Waiver" shall mean [ %] [of the Voting Rights].]
Amendments
The Trust Agreement may be amended by the Depositor and the Trustee,
without notice to, or consent of, the Certificateholders, for specified
purposes, including:
o to cure any ambiguity in the Trust Agreement or to correct or
supplement any provision in the Trust Agreement which may be
inconsistent with any other provision therein;
o to cure any inconsistencies between the Trust Agreement and the
related prospectus supplement;
o to add covenants, restrictions or obligations of the Depositor
for the benefit of the Certificateholders;
o [to comply with any requirements imposed by the Internal
Revenue Code of 1986, as amended (the "Code")]; [or]
o [to evidence and provide for the acceptance of appointment
under the Trust Agreement of a successor trustee].
Without limiting the generality of the foregoing, the Trust Agreement
may also be amended from time to time by the Depositor and the Trustee, with
the consent of the holders of 50% or more of the Certificate Principal Balance
of the then outstanding Certificates for the purpose of adding any provision
to or changing in any manner or eliminating any provision of the Trust
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that the consent of all of the holders of all of the
outstanding Certificates shall be required in the event any such amendment
would:
o alter the pass-through nature of any payments received with
respect to the Deposited Assets or the amount or timing of
their distribution to Certificateholders,
o reduce the certificate principal balance of any Class of
Certificates, except upon payment on the Final Scheduled
Distribution Date or upon the occurrence of a redemption of any
Underlying Securities, or
o [reduce the percentage required for consent to any amendment
with the consent of the Certificateholders].
Notwithstanding anything to the contrary contained herein, the Trust
Agreement may not be amended unless any such amendment would not, as evidenced
by an opinion of counsel:
o require the Trust, the Depositor or the Deposited Assets to be
registered under the Investment Company Act of 1940;
o cause the Trust to be taxed as an association or publicly
traded partnership taxable as a corporation or otherwise alter
the classification of the Trust for U.S. federal income tax
purposes;
o result in a sale or exchange of any Certificate for tax
purposes; or
o result in a downgrade or withdrawal by [S&P, Moody's or Fitch]
of [its] [their] then current rating of the Certificates.
Voting of Underlying Securities
The Trustee, as holder of the Underlying Securities, has the right to
vote and give consents and waivers in respect of such Underlying Securities as
permitted by DTC and except as otherwise limited by the Trust Agreement but
will only do so if and as directed in writing by the holders of the
outstanding Certificates. In the event that the Trustee receives a request
from DTC for its consent to any amendment, modification or waiver related to
the Underlying Securities, or receives any other solicitation requiring a vote
or other action with respect to the Underlying Securities, the Trustee shall
mail a notice of such proposed amendment, modification, waiver or solicitation
to each Certificateholder of record as of such date. The Trustee shall request
instructions from the Certificateholders as to what action it should take on
behalf of such Certificateholder with respect to the request. The Trustee
shall consent or vote, or refrain from consenting or voting, in the same
proportion (based on the relative Certificate Principal Balances [or Notional
Amounts] of the Certificates, as applicable]) as the Certificates of the Trust
were actually voted or not voted by the Certificateholders thereof as of a
date determined by the Trustee prior to the date on which such consent or vote
is required; provided, however, that, notwithstanding anything to the
contrary, the Trustee shall at no time vote or consent to any matter (i)
unless such vote or consent would not (based on an opinion of counsel) alter
the status of the Trust as a grantor trust for federal income tax purposes,
(ii) which would alter the timing or amount of any payment on the Underlying
Securities, including, without limitation, any demand to accelerate the
Underlying Securities, except in the event of an event of default with respect
to the Underlying Securities or an event which with the passage of time would
become an event of default with respect to the Underlying Securities and with
the unanimous consent of all holders of outstanding Certificates or (iii)
which would result in the exchange or substitution of any of the outstanding
Underlying Securities pursuant to a plan for the refunding or refinancing of
such Underlying Securities except in the event of a default of the Underlying
Securities and only with the consent of Certificateholders representing 100%
of the aggregate voting rights of each outstanding class of Certificates. The
Trustee will not be liable for any failure to act resulting from any
Certificateholder's late return of, or failure to return, directions requested
by the Trustee from the Certificateholders.
In the event that an offer is made by any Underlying Securities
Issuer to issue new obligations in exchange for any of the Underlying
Securities or any other offer is made for the Underlying Securities, the
Trustee will notify the Certificateholders of such offer as promptly as
practicable. The Trustee must reject any such offer unless an event of default
under the Underlying Securities has occurred, the Trustee is directed by the
affirmative vote of [all] of the Certificateholders to accept such offer and
the Trustee has received the tax opinion described above. Accordingly, a
Certificateholder generally would be required to effect a withdrawal of
Requested Underlying Securities from the Trust in order to accept such offer.
See "Description of the Certificates - Optional Exchange" in the accompanying
base prospectus.
[If an event of default under any Underlying Security occurs and is
continuing and if directed by all the holders of outstanding Class [ ]
Certificates and[, unless the Class [ ] Certificates are no longer
outstanding, by all the holders of outstanding Class [ ] Certificates,] the
Trustee will vote the Underlying Securities in favor of directing, or take
such other action as may be appropriate to direct, the Underlying Securities
trustee to declare the unpaid principal amount of the Underlying Securities
and any accrued and unpaid interest thereon to be due and payable. In
connection with a vote concerning whether to declare the acceleration of the
Underlying Securities, the Certificateholders' interests of each class may
differ and the interests of either class may differ from holders of other
outstanding debt securities of the Underlying Securities issuer[s].]
Termination
The Trust and the interests of Certificateholders will terminate upon
the later of [(i) the payment in full at maturity or sale by the Trust after a
payment default on or an acceleration or other early payment of the Underlying
Securities, and the [distribution in full of all amounts due to the Class A-[
] and Class A-[ ] Certificateholders, and (ii) the Final Scheduled
Distribution Date]. The final distribution to the Certificateholders will be
made only upon surrender and cancellation of the Certificates at an office or
agency appointed by the Trustee which will be specified in the notice of
termination. [Describe additional termination provisions.] The other
circumstances under which the interests of Certificateholders in the Trust
will terminate are described in "Description of the Trust Agreement -
Termination" in the accompanying base prospectus. [The Depositor will have the
right to purchase all remaining Underlying Securities in the Trust and thereby
effect early retirement of the Certificates on any Distribution Date, [(a)]
once the aggregate principal amount of the Underlying Securities is less than
[10%] of the aggregate principal amount of the Underlying Securities as of the
Cut-off Date [and (b) at the option of the Depositor at [specify when and on
what terms any such option may be exercised]]; [provided, however, that the
right to exercise any such option is contingent on such exercise being
consistent with the Depositor's and the Trust's continued satisfaction of the
applicable requirements for an exemption under Rule 3a-7 under the Investment
Company Act of 1940 and all applicable rules, regulations and interpretations
thereunder.] In the event the Depositor exercises any such option, the
purchase price payable by the Depositor shall be an amount not less than the
[aggregate principal amount] [liquidation preference] of such Underlying
Securities as of the date of purchase. [Specify alternative allocation method
if different from above.] See "Description of the Trust Agreement -
Termination" in the accompanying base prospectus.
CERTAIN LEGAL ASPECTS OF THE DEPOSITED ASSETS
[Describe any applicable legal aspects of the Deposited Assets or
issues relating to the enforceability by the Certificateholders of the
security interest, if any, securing such Deposited Assets.]
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material federal income tax
consequences of the purchase, ownership and disposition of the Certificates by
an initial holder of Certificates as of the date hereof. Such consequences
will depend on the terms of the Certificate, whether the Trust is treated as a
grantor trust, as a partnership or a FASIT for federal income tax purposes,
and the assets collateralizing or otherwise supporting such Certificate. The
consequences of owning Certificates which are deemed for federal income tax
purposes to be interests in a grantor trust, in a partnership or in a FASIT
are discussed separately below under the captions [["Tax Status of Trust as a
Grantor Trust] [For Grantor Trust Transactions] - Income of
Certificateholders," "Tax Characterization of The Trust as a Partnership [For
Partnership Transactions]" and "Tax Characterization of The Trust as a FASIT
[For FASIT Transactions - Partnership Taxation,"] respectively. The applicable
trust agreement, including the Trust Agreement for your series, will include
provisions appropriate to the particulars of the transaction and to the
relevant Federal income tax status of the Trust and related certificates.
(Certain minor and incidental consequences are discussed as well.) This
summary is based on the advice of Skadden, Arps, Slate, Meagher & Flom LLP,
special federal income tax counsel to the Depositor ("Special Tax Counsel"),
which has delivered an opinion to the Depositor that the discussion below, to
the extent it constitutes matters of law or legal conclusions with respect
thereto, is true and correct in all material respects. The Depositor will also
be provided with an opinion of Special Tax Counsel only as specified below. An
opinion of Special Tax Counsel, however, is not binding on the Internal
Revenue Service (the "Service") or the courts. Prospective investors should
note that no rulings have been or will be sought from the Service with respect
to any of the Federal income tax consequences discussed below, and no
assurance can be given that the Service will not take contrary positions.
This summary is based upon laws, regulations, rulings, decisions and
interpretations currently in effect, all of which are subject to change,
possibly on a retroactive basis. The discussion does not deal with all federal
tax consequences applicable to all categories of investors, some of which may
be subject to special rules. In addition, this summary is generally limited to
investors who will hold the certificates as "capital assets" (generally,
property held for investment) within the meaning of Section 1221 of the
Internal Revenue Code of 1986, as amended (the "Code"), and who do not hold
their Certificates as part of a "straddle," a "hedge" or a "conversion
transaction," persons that have a "functional currency" other than the U.S.
dollar and investors in pass-through entities. This summary is intended as an
explanatory discussion of the consequences of holding the Certificates
generally and does not purport to furnish information in the level of detail
or with the investor's specific tax circumstances that would be provided by an
investor's own tax advisor. Investors should consult their own tax advisors to
determine the Federal, state, local and other tax consequences of the
purchase, ownership and disposition of the Certificates.
[Tax Status of Trust as a Grantor Trust] [For Grantor Trust Transactions]
In the opinion of Special Tax Counsel, the Trust will be classified
as a grantor trust and not as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes. Accordingly, each
owner of a certificate (a "Certificateholder") will be subject to Federal
income taxation as if it owned directly the portion of the Deposited Assets
allocable to such Certificates, and as if it paid directly its share of
expenses paid by the Trust. The following discussion assumes that the
Underlying Securities were not issued with original issue discount ("OID")
and, accordingly, the Certificateholders will not realize OID except with
respect to a "stripped interest" (as defined below).
The Trust has identified the Underlying Securities and any Call Options as
part of an integrated transaction within the meaning of Treasury Regulations
ss. 1.1275-6. Among other consequences of such identification is the treatment
generally of each Certificate as a synthetic debt instrument issued on the
date it is acquired by the holder thereof. Similar treatment will also
generally apply to Certificates representing "stripped coupons" and/or
"stripped bonds," which generally will be the case when Certificates are
issued to multiple classes and the different classes represent the ownership
of differing percentage ownership interests of the right to interest and
principal on the Underlying Securities. It is also possible that each
Certificate will be treated as an actual debt instrument issued on the Closing
Date. In that case, the Certificates would be taxed like conventional debt
instruments and the discussion below under "- Income of Certificateholders"
would not apply. If a series of Certificates has more than one class and some
but not all classes are treated as actual debt instruments issued on the
Closing Date, income on the classes not so treated may be treated as unrelated
business taxable income (and thus subject to tax) in the hands of pension
plans, individual retirement accounts and other tax-exempt investors.
Income of Certificateholders
[In General. A Certificateholder will allocate the amount it pays for
its Certificate among the Underlying Securities and the [Deposited Assets] in
the Trust other than the Underlying Securities (the "Other Deposited Assets")
allocable to such Certificate, in proportion to their relative fair market
values on the date of purchase of the Certificate. A Certificateholder would
calculate separately its income, gain, loss or deduction realized with respect
to each such asset.]
The federal income tax treatment of a holder of a particular class of
Certificates will depend upon whether the interest in the Underlying
Securities represented by such class will be considered, in whole or in part,
to be a "stripped bond" or "stripped coupon" (together, a "stripped interest")
within the meaning of Section 1286 of the Code. A class of Certificates will
not be considered to represent a stripped interest in the Underlying
Securities to the extent the Certificate is entitled to receive a
proportionate amount of all principal and interest on the Underlying
Securities. A class of Certificates will be considered in its entirety to
represent a stripped interest in the Underlying Securities if it is entitled
to receive interest on the Underlying Securities which is disproportionately
less than the principal which it is entitled to receive on the Underlying
Securities, or if it is entitled to receive all or part of the interest on the
Underlying Securities but no principal on the Underlying Securities. In
addition, if a class of Certificates is entitled to receive interest and
principal on the Underlying Securities, but the interest it is entitled to
receive on the Underlying Securities is disproportionately more than the
principal it is entitled to receive on the Underlying Securities, it could be
argued that the Certificates represent (a) an interest in the Underlying
Securities that is not a stripped interest to the extent it represents a
proportional amount of all the principal and interest on the Underlying
Securities and (b) a stripped interest in the Underlying Securities to the
extent of any additional interest to which it is entitled on the Underlying
Securities. If a Certificate represents in part a stripped interest and in
part not a stripped interest, such interests will be treated as two separate
items for tax purposes and a purchaser of Certificates will be required to
allocate its purchase price among the two items (as well as any Other
Deposited Assets) in proportion to their relative fair market values on the
date of purchase.
Tax Treatment of Certificates to the Extent They Are Not Stripped
Interests. To the extent a class of Certificates does not represent a stripped
interest in the Underlying Securities, each Certificateholder will be required
to report on its federal income tax return, in a manner consistent with its
method of accounting, its share of the gross income of the Trust, including
interest and discount earned on the Underlying Securities, income derived from
the [other Deposited Assets] held by the Trust, and any gain or loss upon
collection or disposition of the Underlying Securities or [other Deposited
Assets]. The portion of each monthly payment to a Certificateholder that is
allocable to principal on the Underlying Securities (other than amounts
representing discount, as described below) will represent a recovery of
capital, which will reduce the tax basis of such certificate owner's undivided
interest in the Underlying Securities.
To the extent that the portion of the purchase price of a certificate
allocated to a Certificateholder's undivided interest in a Underlying Security
is greater than or less than the portion of the principal balance of the
Underlying Security allocable to the Certificate, such interest in the
Underlying Security will have been acquired at a premium or discount, as the
case may be. In determining whether a Certificateholder has purchased its
interest in the Underlying Securities at a premium or discount, a portion of
the purchase price for a Certificate will be allocated to (i) the Other
Deposited Assets and Credit Enhancement (including [in each case,]any accrued
interest thereon) held by the Trust and (ii)] the accrued interest on the
Underlying Securities at the time of purchase as though such accrued interest
were a separate asset, thus, in each case, reducing the portion of the
purchase price allocable to the Certificateholder's undivided interest in the
Underlying Securities (the "Allocated Purchase Price"). To the extent that the
Allocated Purchase Price is less than the principal balance of an Underlying
Security, the Certificateholder's interest in such Underlying Security will be
treated as purchased at a "market discount." The market discount on a
Underlying Security will, however, be considered to be zero if it is less than
a statutorily defined de minimis amount. Conversely, to the extent that the
Allocated Purchase Price exceeds the principal balance of an Underlying
Security, the Certificateholder's interest therein will be treated as
purchased with "bond premium." See the discussion below under "- Bond
Premium."
For example, if the Allocated Purchase Price paid by a
Certificateholder who purchases a Certificate in the initial public offering
were equal or almost equal to the portion of the principal balance of the
Underlying Security that is allocable to the Certificate, there would be no
significant amount of discount or premium with respect to its interest in such
Underlying Security. Moreover, if the total purchase price of a Certificate is
equal to the principal amount of the Underlying Securities allocable to the
certificate, because a portion of such purchase price will be allocated to the
[other Deposited Assets] of the Trust, in the aggregate a Certificateholder's
interest in the Underlying Securities will have been purchased at a discount.
In general, under the market discount provisions of the Code,
principal payments received by the Trust, and all or a portion of the gain
recognized upon a sale or other disposition of an Underlying Security or upon
the sale or other disposition of a Certificate, will be taxable as ordinary
income to the extent of accrued market discount, and a portion of the interest
deduction attributable to any indebtedness treated as incurred or continued to
purchase or carry an Underlying Security (or a Certificate) must be deferred.
The ordinary income treatment on principal payments and dispositions and
deferral of interest deductions described in the preceding sentence will not
apply if a Certificateholder elects to include market discount in income
currently as it accrues for each taxable year during which it holds the
Certificate. Any such election will also apply to all debt instruments held by
the certificate owner during the year in which the election is made and all
debt instruments acquired thereafter. Market discount will accrue in the
manner to be provided in Treasury regulations, but the Conference Report
accompanying the Tax Reform Act of 1986 states that, until such regulations
are issued, taxpayers may elect to accrue market discount either (i) under a
constant yield (economic accrual) method or (ii) in the proportion that the
stated interest paid on the obligation for the current period bears to total
remaining interest on the obligation.
Tax Treatment of Certificates to the Extent They Are Stripped
Interests. To the extent a class of Certificates represents a stripped
interest in the Underlying Securities, each such Certificate will be subject
to the OID rules. The amount of OID on a stripped interest is equal to the
excess of all amounts payable on the stripped interest (other than qualified
stated interest) over the portion of the purchase price for the certificate
allocable to the stripped interest.
Under the Treasury regulations issued under Section 1286 of the Code
(the "Regulations"), the interest payable with respect to the stripped
interest will, in the appropriate circumstances, be treated as "qualified
stated interest" if it represents a fixed periodic payment on principal on the
Underlying Securities to which the stripped interest (i.e., the
Certificateholder) is also entitled. If none of the amounts payable to a
Certificateholder with respect to a stripped interest constitute qualified
stated interest, then the stripped interest will have OID in an amount equal
to the excess of all payments to be received on the stripped interest over the
purchase price for the Certificate allocable to the stripped interest.
Moreover, in determining the amount paid for the stripped interest, a portion
of the purchase price for a Certificate must be allocated to the
Certificateholder's share of [other Deposited Assets] and to accrued interest.
The tax treatment of a Certificateholder will depend upon whether the
amount of OID on the stripped interest represented by the Certificate is less
than a statutorily defined de minimis amount. In general, under the
Regulations, the amount of OID with respect to the stripped interest will be
de minimis if it is less than 1/4 of one percent multiplied by the product of
the "stated redemption price at maturity" and the number of full years
remaining after the purchase date until the maturity of such stripped
interest. However, if the stripped interest provides for amortization of
principal, the amount of OID will be de minimis if it is less than 1/4 of one
percent multiplied by the product of the stated redemption price at maturity
and the weighted average maturity (i.e., the sum of the amounts obtained by
multiplying the amount of each payment under the stripped interest (other than
a payment of qualified stated interest) by a fraction, the numerator of which
is the number of complete years from the purchase date until the payment is
made and the denominator of which is the stated redemption price at maturity)
of the stripped interest. In general, "stated redemption price at maturity"
means the sum of all amounts payable on the stripped interest other than
qualified stated interest.
If the amount of OID on the stripped interest represented by the
Certificate is de minimis under the rules discussed above, the stripped
interest would not be treated as having OID. Each Certificateholder would be
required to report on its federal income tax return its share of the gross
income of the Trust, including interest on the Underlying Securities and any
gain upon sale or other disposition by the Trust of the Underlying Securities.
Such gross income would exceed the pass-through rate on the Certificate by an
amount equal to the Certificateholder's share of the expenses of the Trust for
the period during which it owns a Certificate. Each Certificateholder would be
required to include the de minimis OID in income as each principal payment on
the stripped interest is received, in proportion to the amount that each
principal payment bears to the stated principal amount of the stripped
interest; such income would be capital gain, short-term or long-term depending
upon the Certificateholder's holding period in the Certificate (which as
discussed below may be eliminated as a result of the rules relating to
"straddles"). The Certificateholder would be entitled to deduct its share of
expenses of the Trust to the extent described below. Any amounts received by a
Certificateholder from any credit support or any subordination feature will be
treated for federal income tax purposes as having the same characteristics as
the payments they replace.
Except as described below, a Certificateholder would report its share
of the income of the Trust under its usual method of accounting. Accordingly,
except as described below, interest on an Underlying Security would be
includible in a Certificateholder's gross income when it accrues on the
Underlying Securities, or, in the case of Certificateholders who are cash
basis taxpayers, when received by the administrative agent, if any, or
otherwise the Trustee on behalf of Certificateholders. Because the interest
collected on the Underlying Securities generally is paid to Certificateholders
in the following month, the amount of interest includible in a
Certificateholder's gross income during any calendar month will not equal the
interest distributed in that month.
If the OID with respect to the stripped interest in the Underlying
Securities represented by a Certificate is not treated as being de minimis, a
Certificateholder will be required to include in income, in addition to any
qualified stated interest on the stripped interest as described above, any OID
on the stripped interest. OID must be included in income as it accrues on a
daily basis, regardless of when cash payments are received, using a method
reflecting a constant yield as described below. Such treatment could result in
the accrual of income by such Certificateholder prior to the receipt of cash
by such Certificateholder. Under the rules described below, the amounts
includible in income by a Certificateholder on a stripped interest that has
OID are lesser in the early years and greater in the later years than the
amounts that would be includible on a straight-line basis.
In general, if a stripped interest has OID the Certificateholder will
be required, whether such Certificateholder uses the cash or the accrual
method of tax accounting, to include in ordinary gross income the sum of the
"daily portions" of OID on the stripped interest for all days during the
taxable year that the Certificateholder owns the Certificate. The daily
portions of OID on a stripped interest are determined by allocating to each
day in any "accrual period" a ratable portion of the OID allocable to that
accrual period. The amount of OID on a stripped interest allocable to each
accrual period is determined by (i) multiplying the "adjusted issue price" (as
defined below) of the stripped interest by a fraction, the numerator of which
is the annual yield to maturity of the stripped interest and the denominator
of which is the number of accrual periods in a year and (ii) subtracting from
that product the amount of qualified stated interest (if any) payable on the
stripped interest during (or allocable to) such accrual period.
An "accrual period" would generally be each period ending on an
interest payment date on the Underlying Securities, although Treasury
regulations allow a Certificateholder to elect other accrual periods of no
more than a year in length, as long as each scheduled payment on the
Underlying Securities occurs at the end of an accrual period.
The "adjusted issue price" of a stripped interest at the beginning of
any accrual period is the purchase price for a Certificate allocable to the
stripped interest (including accrued interest, if any) (i) increased by the
amount of OID allocable to all prior accrual periods and (ii) reduced by the
amount of all payments other than qualified stated interest payments (if any)
in all prior accrual periods. In addition, if an interval between payments of
qualified stated interest contains more than one accrual period, the adjusted
issue price at the beginning of each accrual period in the interval is
increased by the amount of qualified stated interest that has accrued prior to
the first day of the accrual period but that is not payable until the end of
the interval.
The Trustee intends to account for OID, if any, reportable by
Certificateholders by reference to the price paid for a certificate by an
initial purchaser, although the amount of OID will differ for subsequent
purchasers. Such subsequent purchasers should consult their tax advisors
regarding the proper calculation of OID.
Bond Premium. In the event that a Certificate represents either an
unstripped interest in an Underlying Security, or a stripped interest which
includes qualified stated interest, and the stripped or unstripped interest is
treated as having been purchased at a premium (i.e., the purchase price of a
Certificate allocable to the Underlying Security exceeds the total amount
payable on the Underlying Security to the Certificateholder other than
qualified stated interest), such premium will be amortizable by the
Certificateholder as an offset to interest income (with a corresponding
reduction in the Certificateholder's basis) under a constant yield method over
the term of the Underlying Security if an election under Section 171 of the
Code is made or was previously in effect. Any such election will also apply to
all debt instruments held by the Certificateholder during the year in which
the election is made and all debt instruments acquired thereafter.
Election to Treat All Interest as Original Issue Discount. Any
Certificateholder may elect to include in gross income all interest (including
stated interest, OID, de minimis OID, market discount and de minimis market
discount, as adjusted by any bond premium or acquisition premium) that accrues
on an unstripped or stripped interest using the constant yield method
described above, treating the instrument as having been issued on the
Certificateholder's acquisition date at an issue price equal to such owner's
adjusted basis with no interest payments being qualified stated interest. Such
an election with respect to a unstripped or stripped interest having
amortizable bond premium or market discount would constitute, respectively, an
election to apply the market discount rules or bond premium rules with respect
to all other debt instruments with market discount or amortizable bond
premium, as the case may be, of such Certificateholder.
Modification or Exchange of Underlying Securities. Depending upon the
circumstances, it is possible that a modification of the terms of the
Underlying Securities, or a substitution of other assets for the Underlying
Securities following a default on the Underlying Securities, would be a
taxable event to Certificateholders on which they would recognize gain or
loss.
Foreign Tax Credits. Any foreign income taxes withheld from payments
to the Trust will be includible in the income of Certificateholders and will
likewise be deductible to Certificateholders, or, alternatively,
Certificateholders may be eligible for a U.S. foreign tax credit subject to
various limitations.
Other Deposited Assets of the Trust
[Describe tax consequences of the Other Deposited Assets.]
Deductibility of Trust's Fees and Expenses
In computing its federal income tax liability, a Certificateholder
will be entitled to deduct, consistent with its method of accounting, its
share of reasonable administrative fees, trustee fees and other fees paid or
incurred by the Trust as provided in Section 162 or 212 of the Code and any
allowable amortization deductions with respect to certain other assets of the
Trust. If a Certificateholder is an individual, estate or trust, the deduction
for his share of fees will be a miscellaneous itemized deduction that may be
disallowed in whole or in part.
Purchase and Sale of a Certificate
A Certificateholder's tax basis in a Certificate generally will equal
the cost of such Certificate, increased by any amounts of undistributed
taxable income (e.g., OID or market discount) and reduced by any amortized
premium (each as described above) and any payments other than payments of
qualified stated interest on an Underlying Security made on such Certificate.
If a Certificate is sold, gain or loss will be recognized equal to
the difference between the proceeds of sale allocable to each of the assets of
the Trust and the Certificateholder's adjusted basis in each of the foregoing.
However, a Certificateholder's position in the [Underlying Securities] and the
Call Option and/or the Swap Agreement likely will constitute a straddle for
federal income tax purposes. Thus, any gain or loss realized upon sale,
redemption, or other disposition of the Certificates will be short term
capital gain or loss, even if you have held the Certificate for more than one
year. In addition, a portion of any interest expense incurred to acquire (or
carry) the Certificates may be deferred and added to your basis in the
Certificates. Any gain or loss will be a capital gain or loss if the
certificate was held as a capital asset, except that gain will be treated in
whole or in part as ordinary interest income to the extent of the
Certificateholder's interest in accrued market discount not previously taken
into income on Underlying Securities.
Backup Withholding
Payments made on the Certificates and proceeds from the sale of the
Certificates will not be subject to a "backup" withholding tax unless, in
general, the Certificateholder fails to comply with certain reporting
procedures and is not an exempt recipient under applicable provisions of the
Code.
Foreign Certificateholders
To the extent that amounts paid to Certificateholders that are not
United States persons ("Foreign Certificateholders") are treated as interest
with respect to Underlying Securities originated after July 18, 1984, such
amounts generally will not be subject to the annual 30% withholding tax,
provided that such Foreign Certificateholder (i) fulfills certain
certification requirements, (ii) does not own at least 10% of the total
combined voting power of all classes of stock of the Underlying Securities
Issuer (or 10% of the capital or profits of an issuer which is a partnership
for federal income tax purposes) and (iii) is not a "related controlled
foreign corporation." Under such requirements, the holder must certify, under
penalties of perjury, that it is not a "United States person" and provide its
name and address.
[Describe the federal income tax consequences to Foreign
Certificateholders of an interest in any Other Deposited Assets of the Trust.]
A "United States person" means, as determined for U.S. federal income
tax purposes, a citizen or resident of the U.S., a corporation, partnership or
other entity created or organized in or under the laws of the U.S. or any
political subdivision thereof, or an estate the income of which is includible
in gross income for U.S. Federal income tax purposes, regardless of its
source, or a trust with respect to which a court within the United States is
able to exercise primary supervision over its administration and one or more
United States fiduciaries have the authority to control all of its substantial
decisions.
Tax Characterization of The Trust as a Partnership[For Partnership Transactions]
With respect to a trust intended to qualify as a partnership for
federal income tax purposes, the Depositor and the administrative agent, if
any, have agreed, and the Certificateholders will agree by their purchase of
Certificates, to treat the Trust as a partnership for purposes of Federal,
state and local income, franchise and any other tax measured in whole or in
part by income. However, the proper characterization of the arrangement
involving the Trust, the Certificateholders, the Depositor and the
administrative agent, if any, is not entirely clear because there is no
directly comparable authority.
If the Trust were deemed to be a "publicly traded partnership" it
could be subject to corporate income tax. Any such corporate income tax could
materially reduce or eliminate cash that would otherwise be distributable with
respect to the Certificates (and Certificateholders could be liable for any
such tax that is unpaid by the Trust). A publicly traded partnership is taxed
in the same manner as a corporation unless at least 90% of its gross income
consists of specified types of "qualifying income." Such qualifying income
includes, among other things, interest income not derived in the conduct of a
financial or insurance business, dividend income, and gain from the
disposition of assets producing such income. In the opinion of Special Tax
Counsel, because of the nature of the income of the Trust, the Trust will not
be a publicly traded partnership taxable as a corporation.
Partnership Taxation
As a partnership, the Trust will not be subject to federal income
tax, but each Certificateholder will be required to separately take into
account such holder's allocable share of income, gains, losses, deductions and
credits of the Trust. The Trust's income will consist primarily of [ ] and any
gain upon collection or disposition [ ]. The Trust's deductions will consist
primarily of [ ].
The tax items of a partnership are allocable to the partners in
accordance with the Code, Treasury regulations and the partnership agreement
(here, the Trust Agreement and related documents). The Trust Agreement will
provide that each class of Certificateholders will be allocated taxable income
of the Trust for each monthly period equal to the sum of (i) the amount
payable (or accruing) at the pass-through rate on such class of Certificates
for such month (to the extent such amount would not economically represent a
return of capital); (ii) an amount equivalent to interest that accrues during
such month on amounts previously due on such class of Certificates but not yet
distributed; (iii) any Trust income for such month attributable to discount on
the Underlying Securities that corresponds to any excess of the principal
amount of such class of Certificates over their initial issue price; and (iv)
[any other income economically accruing for such class of Certificates during
such month. [All remaining taxable income of the Trust will be allocated to
the [ ]]. It is believed that this allocation will be valid under applicable
Treasury regulations, although no assurance can be given that the Service
would not require a greater amount of income to be allocated to
Certificateholders. Moreover, even under the foregoing method of allocation,
holders may be allocated income equal to the entire pass-through rate plus the
other items described above even though the Trust might not have sufficient
cash to make current cash distributions of such amount. Thus, cash basis
holders in effect could be required to report income from the Certificates on
the accrual basis. In addition, tax allocations and tax reporting will be done
on a uniform basis for all Certificateholders, even though their Certificates
may have been purchased at different times and at different prices.
An individual taxpayer's miscellaneous itemized deductions (which do
not include interest expense) are subject to limitations and as a result may
be disallowed in whole or in part. Those limitations, which also apply to
estates and trusts, would apply to a Certificateholder's share of expenses of
the Trust (including fees to the administrative agent, if any) and might
result in such holder being taxed on an amount of income that exceeds the
amount of cash actually distributed to such holder over the life of the Trust.
If the Trust holds a large number of Underlying Securities, it
intends to make all tax calculations relating to income and allocations to
Certificateholders on an aggregate basis. Were the Service to require that
such calculations be made separately for each Underlying Security, the Trust
might be required to incur additional expense but the Depositor believes that
there would not be a material adverse effect on Certificateholders.
A Certificateholder would increase or decrease its tax basis in its
Certificate for its allocable share of the Trust's income or loss,
respectively. Any cash distributions by the Trust to a Certificateholder will
constitute (i) first, a return of capital to the extent of such
Certificateholder's tax basis in the certificate (with a corresponding
dollar-for-dollar reduction in such tax basis), and (ii) thereafter, to the
extent in excess thereof, gain on the sale or exchange of such
Certificateholder's Certificate. See "- Disposition of Certificates" below.
Discount and Premium
The Depositor believes that the Underlying Securities were not issued
with original issue discount ("OID") and, therefore, the Trust should not have
OID income. However, the purchase price paid by the Trust for the Underlying
Securities may be greater or less than the remaining principal balance of the
Underlying Securities at the time of purchase. If so, the Underlying
Securities will have been acquired at a premium or discount, as the case may
be. (As indicated above, if the Trust acquires a large number of Underlying
Securities it will make this calculation on an aggregate basis, but might be
required to recompute it on an instrument-by-instrument basis.)
The Trust will make an election that will result in any market
discount on the Underlying Securities being included in income currently as
such discount accrues over the life of the Underlying Securities. As indicated
above in the discussion under "Partnership Taxation," a portion of such market
discount income may be allocated to Certificateholders.
Modification or Exchange of Underlying Securities
Depending upon the circumstances, it is possible that a modification
of the terms of the Underlying Securities, or a substitution of other assets
for the Underlying Securities following a default on the Underlying
Securities, would be a taxable event to Certificateholders on which they would
recognize gain or loss.
Foreign Tax Credits
Any foreign income taxes withheld from payments to the Trust will be
includible in the income of Certificateholders and will likewise be deductible
to Certificateholders, or, alternatively, Certificateholders may be eligible
for a U.S. foreign tax credit subject to various limitations.
Tax Consequences of Other Assets Held by Trust
The manner in which income with respect to the other assets of the
Trust should be accrued will depend on the nature of those assets.
[Discuss specific tax consequences of other assets.]
Section 708 Termination
Under Section 708 of the Code, the Trust will be deemed to terminate
for federal income tax purposes if 50% or more of the capital and profits
interests in the Trust are sold or exchanged within a 12-month period. Were
such a termination to occur, the Trust would be considered to have contributed
its assets to a new partnership and distributed the interests in the new
partnership in liquidation to the Certificateholders. If any such constructive
termination occurs, the Trust does not intend to comply with certain technical
requirements that might be applicable for various reasons including the likely
lack of relevant data. As a result, the Trust may be subject to certain tax
penalties and may incur additional expenses. Moreover, the Schedule K-1
information thereafter distributed to the Certificateholders may be incorrect.
Disposition of Certificates
Generally, capital gain or loss will be recognized on a sale or other
disposition of Certificates in an amount equal to the difference between the
amount realized and the seller's tax basis in the Certificates sold. A
Certificateholder's tax basis in a Certificate will generally equal its cost,
increased by his share of trust income includible in his income (including for
the taxable year of sale) and decreased by his share of deductible trust
losses and any distributions received with respect to such Certificate. In
addition, both his tax basis in, and the amount realized on a sale of, a
Certificate would include the holder's share of liabilities of the Trust. A
holder acquiring Certificates at different prices may be required to maintain
a single aggregate adjusted tax basis in such Certificate and, upon sale or
other disposition of some of the Certificates, allocate a pro rata portion of
such aggregate tax basis to the Certificates sold (rather than maintaining a
separate tax basis in each Certificate for purposes of computing gain or loss
on a sale of that Certificate).
A Certificateholder's position in the [Underlying Securities] and the
Call Option and/or the Swap Agreement likely will constitute a straddle for
federal income tax purposes. Thus, any gain or loss realized upon sale,
redemption, or other disposition of the Certificates will be short term
capital gain or loss, even if you have held the Certificate for more than one
year. In addition, a portion of any interest expense incurred to acquire (or
carry) the Certificates may be deferred and added to your basis in the
Certificates.
On the sale of a Certificate, any gain attributable to the holder's
share of any accrued market discount on the Underlying Securities that has not
otherwise been included in the holder's income would generally be treated as
ordinary income to the holder and would give rise to special tax reporting
requirements. The Trust does not expect to have any other assets that would
give rise to such special reporting requirements. Thus, to avoid those special
reporting requirements, the Trust will elect to include market discount in
income as it accrues.
If a Certificateholder is required to recognize an aggregate amount
of income (not including income attributable to disallowed itemized deductions
described above) over the life of the Certificates that exceeds the aggregate
cash distributions with respect thereto, such excess will generally give rise
to a capital loss upon the retirement of the Certificate.
Allocations Between Transferors and Transferees
In general, the Trust's taxable income and losses will be determined
monthly and the tax items for a particular calendar month allocable to a
particular class of Certificates will be apportioned among holders of such
Certificates in proportion to the principal amount of such Certificates owned
by them as of the first business day following the end of such month. As a
result, a holder purchasing Certificates may be allocated tax items (which
will affect its tax liability and tax basis) attributable to periods before
the actual transaction.
The use of such a monthly convention may not be permitted by existing
regulations. If such a convention is not allowed (or only applies to transfers
of less than all of a partner's interest), taxable income or losses of the
Trust might be reallocated among the Certificateholders. The Trustee is
authorized to revise the Trust's method of allocation between transferors and
transferees to conform to a method permitted by future regulations.
Section 754 Election
In the event that a Certificateholder sells its Certificates at a
profit (loss), the purchasing Certificateholder will have a higher (lower)
basis in the Certificates than the selling Certificateholder had. The tax
basis of the Trust's assets will not be adjusted to reflect that higher (or
lower) basis unless the Trust were to file an election under Section 754 of
the Code. In order to avoid the administrative complexities that would be
involved in keeping accurate accounting records, as well as potentially
onerous information reporting requirements, the Trust will not make such
election. As a result Certificateholders might be allocated a greater or
lesser amount of trust income than would be appropriate based on their own
purchase price for Certificates.
Administrative Matters
The Trustee is required to keep complete and accurate books of the
Trust. Such books will be maintained for financial reporting and tax purposes
on an accrual basis and the fiscal year of the Trust will be the calendar
year. The Trustee will file a partnership information return (Internal Revenue
Service Form 1065) with the Service for each taxable year of the Trust and
will report each Certificateholder's allocable share of items of trust income
and expense to holders and the Service on Schedule K-1. The Trust will provide
the Schedule K-1 information to nominees that fail to provide the Trust with
the information statement described below and such nominees will be required
to forward such information to the beneficial owners of the Certificates.
Generally, holders must file tax returns that are consistent with the
information return filed by the Trust or be subject to penalties, unless the
holder notifies the Service of all such inconsistencies.
Under Code Section 6031, any person that holds Certificates as a
nominee at any time during a calendar year is required to furnish the Trust
with a statement containing certain information on the nominee, the beneficial
owners and the Certificates so held. Such information includes (i) the name,
address and taxpayer identification number of the nominee and (ii) as to each
beneficial owner (x) the name, address and taxpayer identification number of
such person, (y) whether such person is not a United States person, a
tax-exempt entity, or a foreign government, an international organization, or
any wholly-owned agency or instrumentality of either of the foregoing, and (z)
certain information on Certificates that were held, bought or sold on behalf
of such person throughout the year. In addition, brokers and financial
institutions that hold Certificates through a nominee are required to furnish
directly to the Trust information as to themselves and their ownership of
Certificates. A clearing agency registered under Section 17A of the Exchange
Act is not required to furnish any such information statement to the Trust.
The information referred to above for any calendar year must be furnished to
the Trust on or before the following January 31. Nominees, brokers and
financial institutions that fail to provide the Trust with the information
described above may be subject to penalties.
The Depositor, as the tax matters partner, will be responsible for
representing the Certificateholders in any dispute with the Service. The Code
provides for administrative examination of a partnership as if the partnership
were a separate and distinct taxpayer. Generally, the statute of limitations
for partnership items does not expire before three years after the date on
which the partnership information return is filed. Any adverse determination
following an audit of the return of the Trust by the appropriate taxing
authorities could result in an adjustment of the returns of the
Certificateholders and, under certain circumstances, a Certificateholder may
be precluded from separately litigating a proposed adjustment to the items of
the Trust. An adjustment could also result in an audit of a
Certificateholder's returns and adjustments of items not related to the income
(or loss) of the Trust.
Tax Consequences to Foreign Certificateholders
It is not clear whether the Trust would be considered to be engaged
in a trade or business in the United States for purposes of federal
withholding taxes with respect to non-U.S. persons because there is no clear
authority dealing with that issue under facts substantially similar to those
described herein. [It is not expected that the Trust would be engaged in a
trade or business in the United States for such purposes and the Trust does
not expect to withhold as if it were so engaged. Subsequent adoption of
Treasury regulations or the issuance of other administrative pronouncements
may require the Trust to change its withholding procedures. In determining a
holder's nonforeign status, the Trust may rely on Form W-8, Form W-9 or the
holder's certification of nonforeign status signed under penalties of
perjury.]
[If the Trust were determined to be engaged in a trade business in
the United States, each foreign holder would be required to file a U.S.
individual or corporate income tax return (including, in the case of a
corporation, the branch profits tax) on its share of the Trust's income. Each
Foreign Certificateholder must obtain a taxpayer identification number from
the Service and submit that number to the Trust on Form W-8 in order to assure
appropriate crediting of the taxes withheld. A Foreign Certificateholder
generally would be entitled to file with the Service a claim for refund with
respect to taxes withheld by the Trust, taking the position that no taxes were
due because the Trust was not engaged in a U.S. trade or business. The Trust
will cooperate in any such refund claim if it can do so without incurring any
out-of-pocket cost. No assurance can be given as to whether any such refund
claim would be granted.]
The foregoing summary will be modified, as necessary, to reflect
differences caused by the precise nature of the Deposited Assets relating to a
given series of Certificates.
Backup Withholding
Payments made on the Certificates and proceeds from the sale of the
Certificates will not be subject to a "backup" withholding tax unless, in
general, the Certificateholder fails to comply with certain reporting
procedures and is not an exempt recipient under applicable provisions of the
Code.
Tax Characterization of The Trust as a FASIT
[Upon the proposed issuance of certificates representing interests in
a FASIT and the promulgation of final Treasury regulations relating to the
federal income taxation of FASITs and to the federal income tax consequences
of the ownership of FASIT interests, the prospectus supplement relating to
such certificates will describe the requirements for the classification of the
Trust as a FASIT and the consequences to a holder of owning such
Certificates.]
Scope of Opinion
In the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, the Trust
will be a grantor trust or a partnership for federal income tax purposes and
not an association taxable as a corporation (or publicly traded partnership
treated as a corporation).
See "Certain Federal Income Tax Considerations" in the accompanying
base prospectus.
CERTAIN STATE TAX CONSIDERATIONS
[Describe any applicable state tax consequences that may arise,
including as a result of the specific nature of the Deposited Assets relating
to a given series of Certificates or the degree of servicing required with
respect to such Deposited Assets.]
ERISA CONSIDERATIONS
General
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the Code, impose certain restrictions on (a) employee benefit
plans (as defined in Section 3(3) of ERISA), (b) plans described in section
4975(e)(1) of the Code, including individual retirement accounts or Keogh
plans, (c) any entities whose underlying assets include plan assets by reason
of a plan's investment in such entities (each, a "Plan") and (d) persons who
have certain specified relationships to such Plans ("Parties-in-Interest"
under ERISA and "Disqualified Persons" under the Code).
[Although no assurances can be given, the [Underwriter] believes that
each class of Certificates will qualify as Publicly Offered Securities under
regulations issued by the U.S. Department of Labor ("DOL") (i.e., freely
tradeable, widely held and registered under the Exchange Act) and that,
accordingly, the assets of the Trust should not be treated as assets of any
employee benefit plan subject to ERISA by reason of an investment in the
Certificates.]
[The [Underwriter] intends to [limit equity participation in the
Trust by Benefit Plan Investors (as defined under DOL Regulation Section
2510.3-101(f)(2)) to less than 25% of any class of Certificates][prohibit
investors using assets of employee benefit plans subject to Title I of ERISA
or Section 4975 of the Code (including assets of an insurance company general
account) from acquiring [the offered class of Certificates]]. Accordingly,
each purchaser of [the offered class of Certificates] will be required to make
representations with respect to [whether or not it is a Benefit Plan Investor
and whether or not it has discretionary authority or control with respect to
the assets of the Trust or any person who provides investment advice for a fee
(direct or indirect) with respect to such assets][whether or not it is using
assets of employee benefit plans subject to Title I of ERISA or Section 4975
of the Code, as applicable].
UNDERWRITING
Subject to the terms and conditions set forth in the underwriting
agreement, dated as of [ ] relating to the Certificates, the Depositor has
agreed to sell and [Banc of America Securities LLC (an affiliate of the
Depositor)] [each of the underwriters named below, including [Banc of America
Securities LLC] [has] [have severally] agreed to purchase, the [Certificates]
[the principal amount of each Class of Certificates set forth below opposite
its name]].
Principal Amount of
Class [ ] Underwriters Class [ ] Certificates
- ----------------------- -----------------------
Banc of America Securities LLC ....................... $
[ ].......... $
Total........................................
Principal Amount of
Class [ ] Underwriters Class [ ] Certificates
- ----------------------- -----------------------
Banc of America Securities LLC ....................... $
[ ].......... $
Total.................................................
In the Underwriting Agreement, the Underwriters have agreed, subject
to the terms and conditions set forth therein, to purchase all of the
Certificates offered hereby, if any of the Certificates are purchased.
The Underwriters propose initially to offer the Class [ ]
Certificates to the public at the price set forth on the cover page hereof and
to certain dealers at such price less concessions not in excess of [ ]% of the
principal amount of the Class [ ] Certificates. The Underwriters may allow,
and such dealers may reallow, concessions not in excess of [ ]% of the
principal amount of the Class [ ] Certificates to certain brokers and dealers.
After the initial public offering, the public offering price and other selling
terms may be changed by the Underwriters.
The Underwriters of the Class [ ] Certificates propose initially to
offer the Class [ ] Certificates to the public at the price set forth on the
cover page hereof and to certain dealers at such price less concessions not in
excess of [ ]% of the principal amount of the Class [ ] Certificates. The
Underwriters may allow, and such dealers may reallow, concessions not in
excess of [ ]% of the principal amount of the Class [ ] Certificates to
certain brokers and dealers. After the initial public offering, the public
offering price and other selling terms may be changed by the Underwriters.
The Depositor will indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act, and/or contribute
to payments the Underwriters may be required to make in respect thereof.
In addition to the underwriting discount to be paid to the
Underwriters as set forth on the cover page hereto, the Depositor has agreed
to reimburse the Underwriters for their reasonable out-of-pocket costs and
expenses incurred in connection with the offering, including the reasonable
fees and disbursements of Underwriters' counsel.
In connection with the sale of these Certificates, the underwriters
may engage in:
o over-allotments, in which members of the syndicate selling
these Certificates sell more Certificates than the issuer
actually sold to the syndicate, creating a syndicate short
position;
o stabilizing transactions, in which purchases and sales of
these Certificates may be made by the members of the selling
syndicate at prices that do not exceed a specified maximum;
o syndicate covering transactions, in which members of the
selling syndicate purchase these Certificates in the open
market after the distribution has been completed in order to
cover syndicate short positions; and
o penalty bids, by which underwriters reclaim a selling
concession from a syndicate member when any of these
Certificates originally sold by that syndicate member are
purchased in a syndicate covering transaction to cover
syndicate short positions.
These stabilizing transactions, syndicate covering transactions and
penalty bids may cause the price of these Certificates to be higher than it
would be otherwise be. These transactions, if commenced, may be discontinued
at any time.
[Each Underwriter has represented and agreed that:
o it has not offered or sold, and will not offer or sell, any
Certificates to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise
in circumstances which do not constitute an offer to the
public in the United Kingdom for the purposes of the Public
Offers of Securities Regulations 1995;
o it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the certificates in,
from or otherwise involving the United Kingdom; and
o it has only issued or passed on, and will only issue or pass
on, in the United Kingdom any document received by it in
connection with the issue or sale of Certificates to a
person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 (as amended) or is a person to whom
the document may otherwise lawfully be issued or passed on.]
In the ordinary course of their respective businesses, the
Underwriters and their affiliates have engaged, and may in the future engage,
in commercial banking and investment banking and other transactions with
Underlying Securities Issuers and their affiliates.
Banc of America Securities LLC is an affiliate of the Depositor, and
the participation by Banc of America Securities LLC in the offering of the
Certificates complies with [Section 2720 of the Conduct Rules of the National
Association of Securities Dealers, Inc.] regarding underwriting securities of
an affiliate.
RATINGS
[It is a condition to the issuance of the Certificates that the
Certificates be rated not lower than [specify ratings applicable to each
class] by [Standard & Poor's Ratings Group, a Division of The McGraw Hill
Companies, Inc. ("S&P")] [Moody's Investors Service, Inc. ("Moody's")] [and]
[Fitch Inc. ("Fitch Ratings")] (the "Rating [Agency] [Agencies]"). The ratings
address the likelihood of the receipt by the Certificateholders of payments
described in the Trust Agreement, and are based primarily on the credit
quality of the Underlying Securities [and any providers of Other Deposited
Assets and/or Credit Support], as well as on the relative priorities of the
Certificateholders of each class of the Certificates with respect to
collections and losses with respect to the Underlying Securities. The rating
on the Certificates does not, however, constitute a statement regarding the
occurrence or frequency of redemptions or prepayments on, or extensions of the
maturity of, the Underlying Securities, the corresponding effect on yield to
investors, or whether investors in the Class [ ] Certificates [specify class
with Notional Amount] may fail to recover fully their initial investment.]
[A security rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time by the
assigning Rating Agency. Each security rating should be evaluated
independently of any other security rating.]
[The Depositor has not requested a rating on the Certificates by any
rating agency other than the Rating [Agency] [Agencies]. However, there can be
no assurance as to whether any other rating agency will rate the Certificates,
or, if it does, what rating would be assigned by any such other rating agency.
A rating on the Certificates by another rating agency, if assigned at all, may
be lower than the ratings assigned to the Certificates by the Rating [Agency]
[Agencies].]
LEGAL MATTERS
Certain legal matters relating to the issuance of the Certificates
and the federal income tax consequences of such issuance will be passed upon
for the Depositor and for the Underwriter[s] by Skadden, Arps, Slate, Meagher
& Flom LLP, New York, New York.
INDEX OF TERMS FOR PROSPECTUS SUPPLEMENT
Page
----
Accrued Certificate Interest.....................................................................S-22
Advance ...............................................................................S-24
Allocated Purchase Price.........................................................................S-35
Available Funds ...............................................................................S-22
Calculation Agent ................................................................................S-4
Call Option ................................................................................S-4
Call Option Agreement.............................................................................S-4
Call Option Holder................................................................................S-4
Certificate Principal Balance....................................................................S-23
Certificateholder ...............................................................................S-34
Certificates ..........................................................................S-1, S-18
Class [ ] Certificates....................................................................S-1, S-18
Clearing Agency ...............................................................................S-18
Closing Date ................................................................................S-4
Code ....................................................................S-8, S-31, S-34
Collection Period ................................................................................S-5
Concentrated Underlying Securities...............................................................S-14
Credit Support ................................................................................S-4
Credit Support Agreement.........................................................................S-16
Cut-off Date ................................................................................S-2
Definitive Classes...............................................................................S-18
Deposited Assets ...............................................................................S-11
Depositor ...............................................................................-vi-
Distribution Date ................................................................................S-4
DOL ...............................................................................S-46
DTC ................................................................................S-7
Eligible Investments.............................................................................S-23
ERISA ..........................................................................S-8, S-46
Exchange Act ................................................................................S-3
Extraordinary Trust Expenses.....................................................................S-23
Final Scheduled Distribution Date.................................................................S-4
Fitch Ratings ..........................................................................S-7, S-49
Foreign Certificateholders.......................................................................S-40
GSE ...............................................................................S-11
Interest Accrual Period.....................................................................S-5, S-19
Interest Proceeds ...............................................................................S-23
IRA ................................................................................S-8
Issuer Documents ...............................................................................S-14
Liquidation Proceeds.............................................................................S-24
Moody's ..........................................................................S-7, S-49
Notional Amount ...............................................................................S-23
NYSE ...............................................................................S-19
OID .........................................................................S-34, S-42
Other Deposited Assets......................................................................S-3, S-35
Plan ..........................................................................S-8, S-46
Premium Proceeds ...............................................................................S-23
Principal Proceeds...............................................................................S-23
Rating [Agency] [Agencies].......................................................................S-49
Realized Losses ...............................................................................S-20
Record Date ...............................................................................S-20
Reference Entity .........................................................................S-15, S-16
Regulations ...............................................................................S-36
Required Interest Amount.........................................................................S-24
Required Percentage-Amendment....................................................................S-30
Required Percentage-Waiver.......................................................................S-30
S&P ..........................................................................S-7, S-49
Securities Act ...............................................................................-ii-
Series Supplement ..........................................................................S-1, S-11
Service ...............................................................................S-34
Special Tax Counsel..............................................................................S-33
Specified Currency................................................................................S-7
Standard Terms ..........................................................................S-1, S-11
Termination Event ...............................................................................S-29
Trust ..........................................................................S-1, S-11
Trust Agreement ..........................................................................S-1, S-11
Trust Estate ...............................................................................S-11
Trustee ................................................................................S-1
Underlying Securities.............................................................................S-2
Underlying Securities Issuer......................................................................S-3
United States person.............................................................................S-40
Prospectus
Trust Certificates
(Issuable in series)
Bond Products Depositor LLC
Depositor
<table>
<caption>
Each trust -
- ---------------------------------------
<s> <c> <c>
Consider carefully the risk o may periodically issue asset backed certificates in one
factors beginning on page [2] or more series with one or more classes; and
in this prospectus.
o will own -
Unless otherwise specified in
the applicable prospectus o a debt security or a pool of such debt
supplement, neither the securities;
certificates nor any of the o payments due on those securities;
securities deposited in any trust o securities of government-sponsored
are obligations of or are insured enterprises which, unless otherwise stated in
or guaranteed by the U.S. the prospectus supplement, are not
government or any U.S. obligations of and are neither insured nor
government agency. guaranteed by the U.S. government or any
U.S. government agency; and/or
The certificates will represent o other assets described in this prospectus and
interests in the trust only and in the accompanying prospectus supplement.
will not represent interests in or
obligations of the Depositor, the The certificates -
trustee, any administrative agent
of the trustee or any of their o will represent undivided beneficial interests in the trust
affiliates. and will be paid only from the trust's assets;
This prospectus may be used to o will be denominated and sold for U.S. dollars or for
offer and sell any series of one or more foreign or composite currencies and any
certificates only if accompanied payments to certificateholders may be payable in U.S.
by the prospectus supplement dollars or in one or more foreign or composite
for that series. currencies;
- ----------------------------------------
o will be issued as part of a designated series which may
include one or more classes of certificates and one or
more forms of credit enhancement; and
o will not be obligations of and will neither be insured
nor guaranteed by the U.S. government or any U.S.
government agency.
The certificateholders -
o will receive interest and principal payments from the
assets deposited with each trust.
</table>
<page>
Neither the Securities and Exchange Commission (the "SEC") nor any
state securities commission has approved these certificates or determined that
this prospectus is accurate or complete. Any representation to the contrary is
a criminal offense.
BANC OF AMERICA SECURITIES LLC
[____________], 2003
<page>
OVERVIEW OF THE INFORMATION IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the certificates in two separate
documents that progressively provide more detail: (a) this prospectus, which
provides general information, some of which may not apply to a particular
series of certificates, including your series, and (b) the accompanying
prospectus supplement, which will describe the specific terms of your series
of certificates, including:
o the currency or currencies in which the interest, principal, and
premium, if any, will be paid;
o the number of classes of such series and, with respect to each
class of such series, its designation, aggregate principal
amount or, if applicable, notional amount, and authorized
denominations;
o information concerning the type, characteristics and
specifications of the securities deposited with the relevant
trust (the "Underlying Securities") and any other assets
deposited with such trust including any credit support for such
series or class (together with the Underlying Securities, the
"Deposited Assets");
o the relative rights and priorities of payment of each such class
(including the method for allocating collections from the
Deposited Assets to the certificateholders of each class and the
relative ranking, if any, of the claims of the
certificateholders of each class to the Deposited Assets);
o the name of the trustee and the administrative agent, if any,
for the series;
o the Pass-Through Rate (as defined below) or the terms relating
to the applicable method of calculation thereof;
o the time and place of distribution (a "Distribution Date") of
any interest, principal and premium (if any) on the Deposited
Assets;
o the date of issue of the certificates;
o ratings of the certificates;
o the method for selling the certificates;
o the Final Scheduled Distribution Date (as defined in the related
prospectus supplement), if applicable;
o the offering price; and
o any exchange, whether mandatory or optional, the redemption
terms and any other specific terms of certificates of each
series or class.
See "Description of the Certificates--General" for a listing of other
items that may be specified in the applicable prospectus supplement.
IF THE TERMS OF A PARTICULAR SERIES OF CERTIFICATES VARY BETWEEN THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT, YOU SHOULD RELY ON THE INFORMATION
IN THE PROSPECTUS SUPPLEMENT.
You should rely only on the information provided in this prospectus
and the accompanying prospectus supplement including any information
incorporated by reference. We have not authorized anyone to provide you with
different information. We are not offering the certificates in any state or
other jurisdiction where the offer is not permitted. We do not claim the
accuracy of the information in this prospectus or the accompanying prospectus
supplement as of any date other than the dates stated on their respective
covers.
<page>
We include cross-references in this prospectus and in the
accompanying prospectus supplement to captions in these materials where you
can find further related discussions. The following table of contents and the
table of contents included in the accompanying prospectus supplement provide
the pages on which these captions are located.
TABLE OF CONTENTS
OVERVIEW OF THE INFORMATION IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT................i
WHERE YOU CAN FIND MORE INFORMATION...........................................1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................1
REPORTS TO CERTIFICATEHOLDERS.................................................1
IMPORTANT CURRENCY INFORMATION................................................2
RISK FACTORS..................................................................2
THE DEPOSITOR.................................................................7
USE OF PROCEEDS...............................................................8
FORMATION OF THE TRUSTS.......................................................8
MATURITY AND YIELD CONSIDERATIONS.............................................9
DESCRIPTION OF THE CERTIFICATES..............................................11
DESCRIPTION OF DEPOSITED ASSETS..............................................30
DESCRIPTION OF THE TRUST AGREEMENT...........................................49
LIMITATIONS ON ISSUANCE OF BEARER CERTIFICATES...............................60
CURRENCY RISKS...............................................................61
UNDERWRITING.................................................................64
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS....................................65
ERISA CONSIDERATIONS.........................................................66
LEGAL OPINIONS...............................................................69
<page>
WHERE YOU CAN FIND MORE INFORMATION
Each trust is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and we file
on behalf of each trust reports and other information with the SEC. You may
read and copy any reports, statements or other information we file at the
SEC's public reference room in Washington, D.C. You can request copies of
these documents, upon payment of a duplicating fee, by writing to the SEC.
Please call the SEC at (800) SEC-0330 for further information on the operation
of the public reference rooms. Our SEC filings are also available to the
public on the SEC Internet site (http://www.sec.gov). We do not intend to send
any financial reports to certificateholders.
We filed a registration statement relating to the certificates with
the SEC. This prospectus is part of the registration statement, but the
registration statement includes additional information.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information we file
with it, which means that we can disclose important information to you by
referring you to those documents. We are incorporating by reference all
documents that we have filed with the SEC pursuant to the Exchange Act prior
to the date of this prospectus. The information incorporated by reference is
considered to be part of this prospectus. Information that we file later with
the SEC will automatically update the information in this prospectus. In all
cases, you should rely on the later information over different information
included in this prospectus or the accompanying prospectus supplement or any
other prior filing. We incorporate by reference any future SEC reports filed
by or on behalf of the trusts until we terminate our offering of the
certificates.
As a recipient of this prospectus, you may request a copy of any
document we incorporate by reference, except exhibits to the documents (unless
the exhibits are specifically incorporated by reference), at no cost, by
writing or calling us at: Bond Products Depositor LLC, 100 North Tryon Street,
Charlotte, North Carolina 28255, telephone: (888) 583-8900.
REPORTS TO CERTIFICATEHOLDERS
Except as otherwise specified in the applicable prospectus
supplement, unless and until definitive certificates (as defined below) are
issued, on each Distribution Date unaudited reports containing information
concerning each trust will be prepared by the trustee and sent on behalf of
each trust only to Cede & Co., as nominee of DTC and registered holder of the
certificates. See "Description of the Certificates--Global Securities" and
"Description of the Trust Agreement--Reports to Certificateholders; Notices."
These reports will not constitute financial statements prepared in accordance
with generally accepted accounting principles. We will file with the SEC on
behalf of the trusts periodic reports required under the Exchange Act.
IMPORTANT CURRENCY INFORMATION
References herein to "U.S. dollars," "U.S.$," "USD," "dollar" or "$"
are to the lawful currency of the United States.
Purchasers are required to pay for each certificate in the global
currency in which the certificate is denominated. Currently, there are limited
facilities in the United States for conversion of U.S. dollars into foreign
currencies and vice versa, and banks do not currently offer non-U.S. dollar
checking or savings account facilities in the United States. However, if
requested by a prospective purchaser of a certificate denominated in a
currency other than U.S. dollars, [Banc of America Securities LLC ("BAS")]
will arrange for the exchange of U.S. dollars into such currency to enable the
purchaser to pay for the certificate. Requests must be made on or before the
fifth Business Day (as defined below) preceding the date of delivery of the
certificate or by a later date as determined by [BAS]. Each exchange will be
made by [BAS] on the terms and subject to the conditions, limitations and
charges that [BAS] may from time to time establish in accordance with its
regular foreign exchange practice. All costs of exchange will be borne by the
purchaser.
You can find a listing of pages where capitalized and other important
terms used in this prospectus and the accompanying prospectus supplement are
defined under the caption "Index of Terms for Prospectus" beginning on page
[71] in this document and under the caption "Index of Terms for Prospectus
Supplement" beginning on page S- in the accompanying prospectus supplement.
RISK FACTORS
Limited Liquidity. Prior to the issuance of any series (or class
within such series) of certificates there will not be a public market for
those securities. We cannot predict the extent to which a trading market will
develop or how liquid that market might become or for how long it may
continue.
Legal Aspects. A prospectus supplement may set forth legal
considerations that are applicable to a specific series (or class or classes
within such series) of certificates being offered in connection with that
prospectus supplement or the assets deposited in or assigned to the related
trust.
No Recourse. The certificates will not represent a recourse
obligation of, or interest in, the Depositor or any of its affiliates. Unless
otherwise specified in the applicable prospectus supplement, the certificates
of each series will not be insured or guaranteed by any government agency or
instrumentality, the Depositor, any person affiliated with the Depositor or
any trust, or any other person. Any obligation of the Depositor with respect
to the certificates of any series will only be pursuant to limited
representations and warranties or for its failure to deliver to the trustee
certain documents with respect to the Underlying Securities as required in the
trust agreement. The Depositor does not have, and is not expected in the
future to have, any significant assets with which to satisfy any claims
arising from a breach of any representation or warranty. If the Depositor were
required to repurchase an Underlying Security, its only sources of funds to
make a repurchase would be from funds obtained from the enforcement of a
corresponding obligation, if any, on the part of the seller of the Underlying
Security to the Depositor, or from a reserve fund established to provide funds
for repurchases. The Depositor is not obligated to, and will not, establish or
maintain a reserve fund.
Credit Support; Limited Assets. The only material assets expected to
be in each trust are the Deposited Assets corresponding to the related series
of certificates as identified in the related prospectus supplement. The trust
for any series (or class of such series) of certificates will include assets
which will be used to make payments on the certificates, to ensure the
servicing of the Underlying Securities and/or provide credit enhancement.
However, the certificates do not represent obligations of the Depositor, any
trustee, any administrative agent or any of their affiliates and, unless
otherwise specified in the applicable prospectus supplement, are not insured
or guaranteed by any person or entity. Accordingly, certificateholders'
receipt of distributions will depend entirely on such trust's receipt of
payments with respect to the Deposited Assets identified in the related
prospectus supplement. See "Description of Deposited Assets."
Payments on the Underlying Securities may be Subordinate to other
Obligations of the Issuer of the Underlying Securities. Payments on the
Underlying Securities may be subordinate to other obligations of the issuer of
the Underlying Securities and such issuer may not be permitted to make
payments on the Underlying Securities unless it has paid amounts due on its
obligations which are senior to the Underlying Securities. In the event the
Underlying Securities issuer does not have sufficient funds to pay all amounts
due on its securities, such subordination may cause investors in the
certificates to suffer a greater loss than if payments on the Underlying
Securities were not subordinated.
Maturity and Redemption Considerations. The timing of any
distribution with respect to any series (or of any class within such series)
of certificates is affected by a number of factors, including:
o the performance of the related Deposited Assets;
o the extent of any early redemption, repayment or extension of
maturity of the related Underlying Securities (including
acceleration resulting from any default or rescheduling
resulting from the bankruptcy or similar proceeding with respect
to the issuer of the Underlying Securities);
o the existence of any call option entitling the call holder to
purchase from the related trust the related Underlying
Securities;
o the existence of any call option entitling the call holder to
purchase the certificates from you; and
o the manner and priority in which collections from the Underlying
Securities and any other Deposited Assets are allocated to each
class of such series.
These factors may be influenced by a variety of accounting, tax,
economic, social and other factors. The related prospectus supplement will
discuss any calls, puts or other redemption options, any extension of maturity
provisions and other terms applicable to the certificates or to the Underlying
Securities and any other Deposited Assets. See "Maturity and Yield
Considerations."
Tax Considerations. Skadden, Arps, Slate, Meagher & Flom LLP has
delivered an opinion to the issuer that the discussion contained in this
prospectus under the caption "Certain Federal Income Tax Considerations", to
the extent it constitutes matters of law or legal conclusions thereto, is true
and correct in all material respects. In addition, it is a condition to the
issuance of securities that Skadden, Arps, Slate, Meagher & Flom LLP also
deliver an opinion that the trust will not be characterized as an association
taxable as a corporation (or a publicly traded partnership treated as an
association) for federal income tax purposes. Prospective investors should be
aware that no rulings have been sought from the Internal Revenue Service
("IRS"), and that legal opinions are not binding on the IRS or the courts.
Accordingly, there can be no assurance that the IRS or the courts will agree
with Skadden, Arps, Slate, Meagher & Flom LLP's opinions. If, contrary to
Skadden, Arps, Slate, Meagher & Flom LLP's opinion, the trust is characterized
or treated as a corporation for federal income tax consequences, among other
consequences, the trust would be subject to federal income tax (and similar
state income or franchise taxes) on its income and its ability to make
distributions to certificateholders would be impaired. The Federal income tax
consequences of the purchase, ownership and disposition of the certificates
and the tax treatment of the trusts will depend on the specific terms of the
related certificates, trust, and Deposited Assets. See the description under
"Certain Federal Income Tax Considerations" in the related prospectus
supplement. If the related Deposited Assets includes securities issued by one
or more government agencies or instrumentalities, purchasers of the
certificates may also be affected by the tax treatment of such Underlying
Securities by the relevant issuing government.
Ratings of the Certificates. At the time of issue, the certificates
of any given series (or each class of such series that is offered hereby) will
be rated in one of the investment grade categories recognized by one or more
nationally recognized rating agencies. The rating of any series or class of
certificates is based primarily on the related Deposited Assets and the
relative priorities of the certificateholders of such series or class to
receive collections from, and to assert claims against, the related trust. The
rating is not a recommendation to purchase, hold or sell certificates and it
does not indicate market price or suitability for a particular investor. In
addition, the rating does not address the likelihood that the principal amount
of any series or class will be paid prior to any final legal maturity date. We
cannot be certain that the rating will remain for any given period of time or
that the rating will not be lowered or withdrawn entirely by the rating agency
in the future.
Global Securities. The certificates of each series (or, if more than
one class exists, each class of such series) will initially be represented by
one or more global securities deposited with a Depositary (as defined below)
and purchasers will not receive individual certificates. Consequently, unless
and until individual definitive certificates of a particular series or class
are issued, purchasers will not be recognized as certificateholders under the
related trust agreement. Until such time, purchasers will only be able to
exercise the rights of certificateholders indirectly through the Depositary
and its respective participating organizations. The ability of any purchaser
to pledge a certificate to persons or entities that do not participate in the
Depositary's system, or to otherwise act with respect to a certificate, may be
limited. See "Description of the Certificates--Global Securities" and
"Limitations on Issuance of Bearer Certificates" and any further description
contained in the related prospectus supplement.
Foreign Issuers. The Underlying Securities may include obligations of
foreign issuers. Consequently, it may be difficult for the applicable trust as
a holder of the Underlying Securities to obtain or realize upon judgments in
the United States against the obligor. Even if an issuer is amenable to suit
in the United States, the enforceability of any judgment obtained may be
limited by a lack of substantial assets which can be levied upon in the United
States or the inability to obtain recognition and enforcement of the judgment
in the issuer's country. Because the Underlying Securities may represent
direct or indirect obligations of foreign issuers, certificateholders should
consider the political, economic and other risks attendant on holding the
obligations of a foreign issuer which are not typically associated with an
investment in securities of a domestic issuer. Such risks include:
o future political and economic developments;
o moratorium on payment or rescheduling of external debts;
o confiscatory taxation;
o imposition of any withholding tax;
o exchange rate fluctuations;
o political or social instability or diplomatic developments; and
o the imposition of additional governmental laws or restrictions.
[Available Information for Certain Foreign Issuers.] [Disclosure
rules and regulatory standards in certain foreign countries are often less
stringent than those in the United States. Many foreign countries have a low
level of monitoring and regulation of the market and market participants and
limited or uneven enforcement of existing regulations. There may be little
publicly available information about foreign issuers who do not comply with
the reporting requirements of the Exchange Act. In addition, certain issuer's
may not be subject to accounting, auditing and financial reporting standards
comparable to those of companies in the United States.]
Currency Risks. The certificates of any given series (or class within
such series) may be denominated in a currency other than U.S. dollars. An
investment in a certificate having a Specified Currency other than U.S.
dollars entails significant risks that are not associated with a similar
investment in a U.S. dollar-denominated security. Such risks include, without
limitation, the possibility of significant changes in rates of exchange
between the U.S. dollar and such Specified Currency and the possibility of the
imposition or modification of foreign exchange controls with respect to such
Specified Currency. Such risks generally depend on factors over which the
trust has no control, such as economic and political events and the supply of
and demand for the relevant currencies. In recent years, rates of exchange
between the U.S. dollar and certain currencies have been highly volatile, and
such volatility may be expected in the future. Past fluctuations in any
particular exchange rate do not necessarily indicate, however, fluctuations in
the rate that may occur during the term of any certificate. Depreciation of
the Specified Currency for a certificate against the U.S. dollar would
decrease the effective yield of such certificate below its Pass-Through Rate
and, in certain circumstances, could result in a loss to the investor on a
U.S. dollar basis. This prospectus does not describe all the risks of an
investment in such certificates, and the Depositor disclaims any
responsibility to advise prospective purchasers of such risks as they exist
from time to time. Prospective purchasers should consult their own financial
and legal advisors as to the risks entailed by an investment in certificates
denominated in a currency other than U.S. dollars. See "Currency Risks."
Passive Nature of the Trusts. The trustee with respect to any series
of certificates will hold the Deposited Assets for the benefit of the
certificateholders and certain other assets. Unless a trust has issued a call
option (or similar right) with respect to some or all of the related
Underlying Securities, or has the right to put some or all of the related
Underlying Securities to a third party, each trust will generally hold the
related Underlying Securities to maturity and not dispose of them, regardless
of adverse events, financial or otherwise, which may affect any issuer of
Underlying Securities or the value of the Underlying Securities. Under
specified circumstances the holders of the certificates may direct the trustee
to dispose of the Underlying Securities or take certain other actions in
respect of the Deposited Assets.
Trust May Include Derivative Products. A trust may include various
derivative instruments, including interest rate, currency, securities
(including synthetic securities), commodity and credit swaps (including
default swaps), caps, floors, collars and options and structured securities
having embedded derivatives (such as structured notes). Swaps involve the
exchange with another party of their respective commitments to pay or receive
amounts computed by reference to specified fixed or floating interest rates,
currency rates, securities prices, yields or returns (including baskets of
securities or securities indices) or commodity prices and a notional principal
amount (that is, the reference amount with respect to which such obligations
are determined, although no actual exchange of principal occurs except for
currency swaps); for example, an exchange of floating rate payments for fixed
rate payments. Interim payments are generally netted, with the difference
being paid by one party to the other. The purchase of a cap entitles the
purchaser, to the extent that a specified rate, price, yield or return exceeds
a predetermined level, to receive payments computed by reference to a
specified fixed or floating rate, price, yield or return and a notional
principal amount from the party selling such cap. The purchase of a floor
entitles the purchaser, to the extent that a specified rate, price, yield or
return declines below a predetermined level, to receive payments computed by
reference to a specified fixed or floating rate, price, yield or return and a
notional principal amount from the party selling such floor. Options function
in a manner similar to caps and floors, and exist on various underlying
securities, such as bonds, equities, currencies and commodities. Options can
also be structured as securities such as warrants or can be embedded in
securities such as certain commodity or equity-linked bonds with option-like
characteristics. Forward contracts involve the purchase and sale of a
specified security, commodity, currency or other financial instrument at a
specified price and date in the future, and may be settled by physical
delivery or cash payment. Credit derivatives involve swap and option contracts
designed to assume or lay off credit risk on loans, debt securities or other
assets, or in relation to a particular reference entity or country, in return
for either swap payments or payment of premium. Credit derivatives may also be
embedded in other instruments such as notes or warrants. Credit derivatives
give one party to a transaction the right to dispose of or acquire an asset
(or group of assets), or the right to receive or make a payment from the other
party, upon the occurrence of specified credit events.
Fluctuations in securities, currency and commodity rates, prices,
yields and returns may have a significant effect on the yield to maturity of
derivatives or the levels of support that derivatives can provide to a trust.
In addition, derivatives may be limited to covering only certain risks.
Continued payments on derivatives may be affected by the financial condition
of the counterparties thereto (or, in some instances, the guarantor
thereunder). There can be no assurance that counterparties will be able to
perform their obligations. Failure by a counterparty (or the related
guarantor, if any) to make required payments may result in the delay or
failure to make payments on the related securities and risks. In addition, the
notional amounts on which payments are made may vary under certain
circumstances and may not bear any correlation to principal amounts of the
related securities. The terms and risks of the relevant derivatives will be
described in the related prospectus supplement. Further, the relevant
prospectus supplement will identify the material terms, the material risks and
the counterparty for any derivative instrument in a trust which is the result
of an agreement with such counterparty to the extent that such agreement is
material.
Review of Publicly Available Information or Non-Public Information
Available from the Trustee. To the extent possible, it is strongly recommended
that each prospective purchaser of certificates obtain and evaluate any
publicly available information or non-public information that may be obtained
from the trustee named in the applicable prospectus supplement concerning each
of the Underlying Securities and each issuer of Underlying Securities (each,
an "Underlying Securities Issuer") as it would obtain and evaluate if it were
investing directly in the Underlying Securities or in other securities issued
by the Underlying Securities Issuer. With respect to Underlying Securities
which have not been registered under the Securities Act, if the trustee named
in the applicable private placement offering memoranda does not make available
non-public information with respect to Underlying Securities which have not
been registered under the Securities Act, the applicable prospectus supplement
will describe the material terms of the Underlying Securities. In the case of
publicly issued Underlying Securities, the publicly available information
concerning the applicable Underlying Securities and an Underlying Securities
Issuer is important in considering whether to invest in or sell certificates.
The information in any prospectus supplement concerning any publicly offered
Underlying Securities and their issuers will be obtained from publicly
available documents, and none of the Depositor, the trustee or any of their
affiliates has undertaken, or will undertake, any investigation of the
accuracy or completeness of such documents or the financial condition or
creditworthiness of any Underlying Securities Issuer. The issuance of
certificates of any series should not be construed as an endorsement by the
Depositor or the trustee or any of their affiliates of the financial condition
or business prospects of any Underlying Securities Issuer.
In addition, the prospectus supplement for each series of
certificates will set forth information regarding additional risk factors,
applicable to such series (and each class within such series).
THE DEPOSITOR
The Depositor was established as a limited liability company in the
State of Delaware on April 22, 2003 and is a wholly-owned, limited-purpose
subsidiary of NationsBanc Montgomery Holdings Corporation, which is a
wholly-owned subsidiary of Bank of America Corporation. The principal office
of the Depositor is located at Bank of America Corporate Center, 100 North
Tryon Street, Charlotte, North Carolina 28255. Its telephone number is (888)
583-8900.
The limited liability company agreement of the Depositor provides
that it may conduct any lawful activities necessary or incidental to
acquiring, owning, holding, pledging and transferring assets (including the
Deposited Assets) and serving as depositor of one or more trusts that may
issue and sell certificates. The limited liability company agreement also
provides that any securities, except for subordinated securities, issued by
the Depositor (or a trust formed by the Depositor) must be rated in one of the
four highest categories available by any one or more rating agencies. Pursuant
to the terms of the trust agreement, the Depositor (or a trust formed by the
Depositor) may not issue any securities which would result in the lowering of
the then current ratings of the outstanding certificates of any series.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement,
the net proceeds to be received from the sale of each series or class of
certificates (whether or not offered hereby) will be used by the Depositor to
purchase the related Underlying Securities and acquire any related Other
Deposited Assets and Credit Support (each as defined herein) including, if
specified in the related prospectus supplement, making required deposits into
any reserve account or the applicable certificate account (each, as defined
below) for the benefit of the certificateholders of such series or class. Any
remaining net proceeds, if any, will be used by the Depositor for general
corporate purposes.
FORMATION OF THE TRUSTS
A separate trust will be created for each series of certificates
issued. Each trust will be formed as a common law trust under the laws of the
State of Delaware. The Depositor will assign the Deposited Assets for each
series of certificates to the trustee named in the applicable prospectus
supplement, in its capacity as trustee, for the benefit of the
certificateholders of such series. See "Description of the Trust
Agreement--Assignment of Deposited Assets." The trustee named in the
applicable prospectus supplement will administer the Deposited Assets pursuant
to the trust agreement and will receive a fee for these services. The trustee
or any administrative agent named in the applicable prospectus supplement will
perform the tasks as are specified therein and in the trust agreement and will
receive a fee for these services as specified in the prospectus supplement.
See "Description of the Trust Agreement--Collection and Other Administrative
Procedures" and "--Retained Interest; Administrative Agent Compensation and
Payment of Expenses." The trustee or an administrative agent, if applicable,
will either cause the assignment of the Deposited Assets to be recorded or
will obtain an opinion of counsel that no recordation is required to obtain a
first priority perfected security interest in the Deposited Assets.
Unless otherwise stated in the related prospectus supplement, the
Depositor's assignment of the Deposited Assets to the trustee will be without
recourse. To the extent provided in the applicable prospectus supplement, the
obligations of the trustee or administrative agent, if applicable, will
consist primarily of:
o contractual and administrative obligations, if any, under the
trust agreement; and
o an obligation, if any, to make cash advances in the event of
delinquencies in payments on or with respect to any Deposited
Assets in amounts described under "Description of the Trust
Agreement--Advances in Respect of Delinquencies."
The obligations of the trustee or the administrative agent, if any,
named in the applicable prospectus supplement to make advances will be limited
to amounts which the trustee or the administrative agent believes ultimately
would be recoverable under any credit support, insurance coverage, the
proceeds of liquidation of the Underlying Securities or from other sources
available for such purposes. See "Description of the Trust Agreement--Advances
in Respect of Delinquencies."
Unless otherwise provided in the related prospectus supplement, each
trust will consist of:
o the Underlying Securities, or interests therein, exclusive of
any interest in such assets retained by the Depositor or any
previous owner thereof (the "Retained Interest") , as are
specified in the trust agreement;
o any puts, calls, interest rate swaps, currency swaps, floors,
collars, caps or credit derivatives or similar arrangements as
described therein and under "Description of Deposited
Assets--Other Deposited Assets";
o the credit support, if any, provided with respect to any class
within such series that are specified as being part of the
related trust in the applicable prospectus supplement, as
described therein and under "Description of Deposited
Assets--Credit Support;"
o such assets as from time to time identified as deposited in the
related certificate account;
o property, if any, acquired on behalf of certificateholders by
foreclosure or repossession and any revenues received thereon;
o the certificate account and any reserve account;
o the rights of the Depositor relating to any breaches of
representations or warranties by the seller of any Underlying
Security; and
o the rights of the trustee in any cash advances, reserve fund or
surety bond, if any, as described under "Description of the
Trust Agreement--Advances in Respect of Delinquencies."
MATURITY AND YIELD CONSIDERATIONS
Each prospectus supplement will contain any applicable information
with respect to the type and maturities of the related Underlying Securities
and the terms, if any, upon which such Underlying Securities may be subject to
early redemption (either by the applicable obligor or pursuant to a
third-party call option), repayment (at the option of the holders thereof) or
extension of maturity. The provisions of the Underlying Securities with
respect to redemption, repayment or extension of maturity will, unless
otherwise specified in the applicable prospectus supplement, affect the
weighted average life of the related series of certificates.
The effective yield to holders of the certificates of any series (and
class within such series) may be affected by aspects of the Deposited Assets
or the manner and priorities of allocations of collections with respect to the
Deposited Assets between the classes of a given series. With respect to any
series of certificates, the Underlying Securities of which consist of one or
more redeemable securities, extendable securities or securities subject to a
third-party call option or any series of certificates subject to a third-party
call option, the yield to maturity of such series (or class within such
series) may be affected by any optional or mandatory redemption or repayment
or extension of the related Underlying Securities, or the exercise of
third-party call option, prior to the stated maturity of the related series of
certificates. A variety of tax, accounting, economic, and other factors will
influence whether an issuer exercises any right of redemption in respect of
its securities or whether a third-party exercises its rights under any call
option. In certain cases, the rate of redemption may be influenced by
prepayments on the obligations a government sponsored entity issuer holds for
its own account. All else remaining equal, if prevailing interest rates fall
below the interest rates on the related Underlying Securities, the likelihood
of redemption would be expected to increase. Similarly, the likelihood that a
third party will exercise its call option with respect to the certificates
will increase if prevailing interest rates fall below the weighted average
interest rate in the Underlying Securities. There can be no certainty as to
whether any Underlying Security redeemable at the option of its issuer or
subject to a third-party call option will be redeemed or called prior to its
stated maturity.
Unless otherwise specified in the related prospectus supplement, each
of the Underlying Securities will be subject to acceleration upon the
occurrence of specified Underlying Security Events of Default (as defined
below). The maturity and yield on the certificates will be affected by any
early repayment of the Underlying Securities as a result of the acceleration
of the Outstanding Debt Securities (as defined below) by the holders thereof.
See "Description of the Deposited Assets and Credit Support--Underlying
Securities--Private Sector Securities-Indenture." If an issuer of Underlying
Securities becomes subject to a bankruptcy proceeding, the timing and amount
of payments with respect to both interest and principal may be materially and
adversely affected. A variety of factors influence the performance of private
debt issuers and correspondingly may affect the ability of an issuer of
Underlying Securities to satisfy its obligations under the Underlying
Securities, including the issuer's operating and financial condition, leverage
and various social, geographic, legal and economic factors. In addition, if
the Underlying Securities are issued by a foreign government and the foreign
government issuer or guarantor repudiates or places any limitation or
moratorium on the payment of external indebtedness or imposes any confiscatory
or withholding tax, the timing and amount of payments on the certificates may
be materially and adversely affected. A variety of factors could influence a
foreign government's willingness or ability to satisfy its obligations under
the related Underlying Securities. We cannot predict the probability of a
moratorium or other action affecting any Underlying Security.
The extent to which the yield to maturity of any certificates may
vary from the anticipated yield due to the rate and timing of payments on the
Deposited Assets will depend upon the degree to which they are purchased at a
discount or premium and the degree to which the timing of payments thereon is
sensitive to the rate and timing of payments on the Deposited Assets.
The yield to maturity of any series (or class) of certificates will
also be affected by variations in the interest rates applicable to, and the
corresponding payments in respect of, such certificates, to the extent that
the Pass-Through Rate (as defined below) for such series (or class) is based
on variable or adjustable interest rates. With respect to any series of
certificates representing an interest in a pool of government, foreign
government or corporate debt securities, disproportionate principal payments
(whether resulting from differences in amortization schedules, payments due on
scheduled maturity or upon early redemption) on the related Underlying
Securities having interest rates higher or lower than the then applicable
Pass-Through Rates applicable to such certificates may affect the yield on the
certificates.
A variety of economic, social, political, tax, accounting and other
factors may affect the degree to which any of the Underlying Securities are
redeemed or called (whether by the applicable obligor or pursuant to a
third-party call option) or the maturity of such Underlying Securities is
extended, as specified in the related prospectus supplement. There can be no
assurance as to the rate or likelihood of redemption, third-party call or
extension of maturity of any Underlying Security. The applicable prospectus
supplement will, to the extent available, provide further information with
respect to any such experience applicable to the related Underlying
Securities. In addition, the applicable prospectus supplement for each series
of certificates will set forth additional information regarding yield and
maturity considerations applicable to such series (and each class within such
series) and the related Deposited Assets.
DESCRIPTION OF THE CERTIFICATES
Each series (or, if more than one class exists, the classes within
such series) of certificates will be issued pursuant to a trust agreement and
a separate series supplement thereto among the Depositor, [the administrative
agent, if any,] and the trustee named in the related prospectus supplement, a
form of which trust agreement is attached as an exhibit to the registration
statement. The provisions of the trust agreement (as so supplemented) may vary
depending upon the nature of the certificates to be issued thereunder and the
nature of the Deposited Assets. The following summaries describe certain
provisions of the trust agreement which may be applicable to each series of
certificates. The applicable prospectus supplement for a series of
certificates will describe any provision of the trust agreement that
materially differs from the description thereof contained in this prospectus.
The following summaries do not purport to be complete and are subject to the
detailed provisions of the form of trust agreement for a full description of
such provisions, including the definition of certain terms used, and for other
information regarding the certificates. As used herein with respect to any
series, the term "certificate" refers to all the certificates of that series,
whether or not offered hereby and by the related prospectus supplement, unless
the context otherwise requires.
A copy of the applicable series supplement to the trust agreement
relating to each series of certificates issued from time to time will be filed
by the Depositor as an exhibit to a Current Report on Form 8-K to be filed
with the SEC following the issuance of such series.
General
There is no limit on the amount of certificates that may be issued
under any trust agreement, and the trust agreement will provide that
certificates of the applicable series may be issued in multiple classes. The
series (or classes within such series) of certificates to be issued under the
trust agreement will represent the entire beneficial ownership interest in the
trust for the series created pursuant to the trust agreement and each class
will be allocated certain relative priorities to receive specified collections
from, such trust, as identified and described in the applicable prospectus
supplement. See "Description of Deposited Assets--Collections."
Reference is made to the related prospectus supplement for a
description of the following terms of the series (and, if applicable, classes
within such series) of certificates in respect of which this prospectus and
such prospectus supplement are being delivered:
o the title of such certificates;
o the series of such certificates and, if applicable, the number
and designation of classes of such series;
o information concerning the type, characteristics and
specifications of the Deposited Assets being deposited into the
related trust by the Depositor (and, with respect to any
Underlying Security which at the time of such deposit represents
a significant portion of the Deposited Assets, information
concerning the terms of each such Underlying Security, the
identity of the issuer thereof and where publicly available
information regarding such issuer may be obtained);
o the limit, if any, upon the aggregate principal amount or
notional amount, as applicable, of each class thereof;
o the dates on which or periods during which such series or
classes within such series may be issued (each, an "Original
Issue Date"), the offering price thereof and the applicable
Distribution Dates on which the principal, interest and premium,
if any, on such series or classes within such series will be
distributable and the related Record Dates (as defined in the
related prospectus supplement), if any;
o if applicable, the relative rights and priorities of each class
(including the method for allocating collections from and
defaults or losses on the Underlying Securities to the
certificateholders of each class);
o whether the certificates of such series or each class within
such series are Fixed Rate Certificates or Floating Rate
Certificates (each as defined below) and the applicable interest
rate (the "Pass-Through Rate") for each such class including, if
fixed, the applicable rate (the "Fixed Pass-Through Rate"), or,
if variable, the terms relating to the particular method of
calculation thereof applicable to such series or each class
within such series (the "Variable Pass-Through Rate");
o the option, if any, of any certificateholder of such series or
class to withdraw a portion of the assets of the related trust
in exchange for surrendering such certificateholder's
certificate or the option, if any, of the Depositor or
administrative agent, if any, or another third party to purchase
or repurchase any Underlying Securities (in each case to the
extent not inconsistent with the Depositor's continued
satisfaction of the applicable requirements for exemption under
Rule 3a-7 under the Investment Company Act of 1940 and all
applicable rules, regulations and interpretations thereunder)
and the periods within which or the dates on which, and the
terms and conditions upon which any such option may be
exercised, in whole or in part;
o the terms of any call option relating to such series or class,
including the date or dates such call option may be exercised
and the price payable to holders of the certificates of such
series or class upon exercise of such call option;
o the rating of each series or each class within such series
offered hereby (provided, however, that one or more classes
within such series not offered hereunder may be unrated or may
be rated below investment grade);
o if other than denominations of [$1,000] and any integral
multiple thereof, the denominations in which such series or
class within such series will be issuable;
o whether the certificates of any class within a given series are
to be entitled to (1) principal distributions, with
disproportionate, nominal or no interest distributions, or (2)
interest distributions, with disproportionate, nominal or no
principal distributions ("Strip Certificates"), and the
applicable terms thereof;
o whether the certificates of such series or of any class within
such series are to be issued as registered certificates or
bearer certificates or both and, if bearer certificates are to
be issued, whether coupons will be attached thereto; whether
bearer certificates of such series or class may be exchanged for
registered certificates of such series or class and the
circumstances under which and the place or places at which any
such exchanges, if permitted, may be made;
o whether the certificates of such series or of any class within
such series are to be issued in the form of one or more global
securities and, if so, the identity of the Depositary (as
defined below), if other than The Depository Trust Company, for
such global security or securities;
o if a temporary certificate is to be issued with respect to such
series or any class within such series, whether any interest
thereon distributable on a Distribution Date prior to the
issuance of a permanent certificate of such series or class will
be credited to the account of the persons entitled thereto on
such Distribution Date;
o if a temporary global security is to be issued with respect to
such series or class, the terms upon which beneficial interests
in such temporary global security may be exchanged in whole or
in part for beneficial interests in a permanent global security
or for individual definitive certificates of such series or
class and the terms upon which beneficial interests in a
permanent global security, if any, may be exchanged for
individual definitive certificates of such series or class;
o if other than U.S. dollars, the currency applicable to the
certificates of such series or class for purposes of
denominations and distributions on such series or each class
within such series (the "Specified Currency") and the
circumstances and conditions, if any, when such currency may be
changed, at the election of the Depositor or a
certificateholder, and the currency or currencies in which any
principal of or any premium or any interest on such series or
class are to be distributed pursuant to such election;
o all applicable Required Percentages and Voting Rights (each, as
defined below) relating to the manner and percentage of votes of
certificateholders of such series and each class within such
series required with respect to certain actions by the
Depositor, the administrative agent, if any, or trustee under
the trust agreement or with respect to the applicable trust; and
o any other terms of such series or class within such series of
certificates not inconsistent with the provisions of the trust
agreement relating to such series.
Unless otherwise indicated in the applicable prospectus supplement,
certificates of each series (including any class of certificates not offered
hereby) will be issued only as registered certificates in denominations of
[$1,000] and any integral multiple thereof and will be payable only in U.S.
dollars. The authorized denominations of registered certificates of a given
series or class within such series having a Specified Currency other than U.S.
dollars will be set forth in the applicable prospectus supplement.
The United States federal income tax consequences and the
consequences of the Employee Retirement Income Security Act of 1974, as
amended, relating to any series or any class within such series of
certificates are described in this prospectus and in the applicable prospectus
supplement. Furthermore, an election may be made to treat a trust as a
"financial asset investment trust" ("FASIT"). To date, final Treasury
regulations have not been issued describing the federal income tax
consequences of holders of interests in FASIT's of owning such interest. The
prospectus supplement relating to any class or series of certificates
representing interests in a FASIT will describe the federal income tax
consequences of the purchase and ownership of such certificates. In addition,
any risk factors, the specific terms and other information with respect to the
issuance of any series or class within such series of bearer certificates or
certificates on which the principal of and any premium and interest are
distributable in a Specified Currency other than U.S. dollars will be
described in the applicable prospectus supplement relating to such series or
class. Unless otherwise specified in the applicable prospectus supplement, the
U.S. dollar equivalent of the public offering price or purchase price of a
certificate having a Specified Currency other than U.S. dollars will be
determined on the basis of the noon buying rate in New York City for cable
transfer in foreign currencies as certified for customs purposes by the
Federal Reserve Bank of New York (the "Market Exchange Rate") for such
Specified Currency on the applicable issue date. As specified in the
applicable prospectus supplement such determination will be made by the
Depositor, the trustee, the administrative agent, if any, or an agent thereof
as exchange rate agent for each series of certificates (the "Exchange Rate
Agent").
Unless otherwise provided in the applicable prospectus supplement,
registered certificates may be transferred or exchanged for like certificates
of the same series and class at the corporate trust office or agency of the
applicable trustee in the City and State of New York, subject to the
limitations provided in the trust agreement, without the payment of any
service charge, other than any tax or governmental charge payable in
connection therewith. Bearer certificates will be transferable by delivery.
Provisions with respect to the exchange of bearer certificates will be
described in the applicable prospectus supplement. Unless otherwise specified
in the applicable prospectus supplement, registered certificates may not be
exchanged for bearer certificates. The Depositor may at any time purchase
certificates at any price in the open market or otherwise. Certificates so
purchased by the Depositor may, at the discretion of the Depositor, be held or
resold or surrendered to the trustee for cancellation of such certificates.
Distributions
Distributions allocable to interest, principal, and premium (if any)
on the certificates of each series (and class within such series) will be made
in the Specified Currency for such certificates by or on behalf of the trustee
on each Distribution Date as specified in the related prospectus supplement
and the amount of each distribution will be determined as of the close of
business on the date specified in the related prospectus supplement (the
"Determination Date"). If the Specified Currency for a given series or class
within such series is other than U.S. dollars, the administrative agent, if
any, or otherwise the trustee will (unless otherwise specified in the
applicable prospectus supplement) arrange to convert all payments in respect
of each certificate of such series or class to U.S. dollars in the manner
described in the following paragraph. The certificateholder of a registered
certificate of a given series or class within such series denominated in a
Specified Currency other than U.S. dollars may (if the applicable prospectus
supplement and the terms of such certificate so indicate) elect to receive all
distributions in respect of such certificate in the Specified Currency by
delivery of a written notice to the trustee and administrative agent, if any,
for such series not later than fifteen calendar days prior to the applicable
Distribution Date, except under the circumstances described under "Currency
Risks--Payment Currency" below. Any such election will remain in effect until
revoked by written notice to such trustee and administrative agent, if any,
received by each of them not later than fifteen calendar days prior to the
applicable Distribution Date.
Unless otherwise specified in the applicable prospectus supplement,
in the case of a registered certificate of a given series or class within such
series having a Specified Currency other than U.S. dollars, the amount of any
U.S. dollar distribution in respect of such registered certificate will be
determined by the Exchange Rate Agent based on the highest firm bid quotation
expressed in U.S. dollars received by the Exchange Rate Agent at approximately
11:00 a.m., New York City time, on the second Business Day preceding the
applicable Distribution Date (or, if no such rate is quoted on such date, the
last date on which such rate was quoted), from three (or, if three are not
available, then two) recognized foreign exchange dealers in The City of New
York (one of which may be the Offering Agent and another of which may be the
Exchange Rate Agent) selected by the Exchange Rate Agent, for the purchase by
the quoting dealer, for settlement on such Distribution Date, of the aggregate
amount payable in such Specified Currency on such payment date in respect of
all registered certificates. [In the event the Exchange Rate Agent receives
only one bid quotation by the time and date described in the preceding
sentence, the Exchange Rate Agent shall use such quote which may be from
either the Offering Agent or the Exchange Rate Agent.] All currency exchange
costs will be borne by the certificateholders of such registered certificates
by deductions from such distributions. If no such bid quotations are
available, such distributions will be made in such Specified Currency, unless
such Specified Currency is unavailable due to the imposition of exchange
controls or to other circumstances beyond the Depositor's control, in which
case such distributions will be made as described under "Currency
Risks--Payment Currency" below. The applicable prospectus supplement will
specify such information with respect to bearer certificates.
Unless otherwise provided in the applicable prospectus supplement and
except as provided in the succeeding paragraph, distributions with respect to
certificates will be made (in the case of registered certificates) at the
corporate trust office or agency of the trustee specified in the applicable
prospectus supplement in The City of New York or (in the case of bearer
certificates) at the principal London office of the applicable trustee;
provided, however, that any such amounts distributable on the Final
Distribution Date of a certificate will be distributed only upon surrender of
the related certificate at the applicable location set forth above. Except as
otherwise provided in the applicable prospectus supplement, distribution on a
bearer certificate will be made by mail to an address in the United States or
by wire transfer to an account maintained by the certificateholder thereof in
the United States.
Unless otherwise specified in the applicable prospectus supplement,
distributions on registered certificates in U.S. dollars will be made, except
as provided below, by check mailed to the registered certificateholders of
such certificates (which, in the case of global securities, will be a nominee
of the Depositary); provided, however, that, in the case of a series or class
of registered certificates issued between a Record Date and the related
Distribution Date, interest for the period beginning on the issue date for
such series or class and ending on the last day of the related interest
accrual period ending immediately prior to or coincident with the next
Distribution Date will, unless otherwise specified in the applicable
prospectus supplement, be distributed on the next succeeding Distribution Date
to the registered certificateholders of the registered certificates of such
series or class on the related Record Date. A certificateholder of $10,000,000
(or the equivalent thereof in a Specified Currency other than U.S. dollars) or
more in aggregate principal amount of registered certificates of a given
series shall be entitled to receive such U.S. dollar distributions by wire
transfer of immediately available funds, but only if appropriate wire transfer
instructions have been received in writing by the trustee for such series not
later than fifteen calendar days prior to the applicable Distribution Date.
Simultaneously with the election by any certificateholder to receive payments
in a Specified Currency other than U.S. dollars (as provided above), such
certificateholder shall provide appropriate wire transfer instructions to the
trustee for such series, and all such payments will be made by wire transfer
of immediately available funds to an account maintained by the payee with a
bank located outside the United States.
Except as otherwise specified in the applicable prospectus
supplement, "Business Day" with respect to any certificate means any day,
other than a Saturday or Sunday, that is
o not a day on which banking institutions are authorized or
required by law or regulation to be closed in
(a) The City of New York or
(b) if the Specified Currency for such certificate is other than
U.S. dollars, the financial center of the country issuing
such Specified Currency (which, in the case of ECU, shall be
Brussels, Belgium) and
o if the Pass-Through Rate for such certificate is based on LIBOR,
a London Banking Day. "London Banking Day" with respect to any
certificate means any day on which dealings in deposits in the
Specified Currency of such certificate are transacted in the
London interbank market. The Record Date with respect to any
Distribution Date for a series or class of registered
certificates shall be specified as such in the applicable
prospectus supplement.
Interest on the Certificates
General. Each class of certificates (other than certain classes of
Strip Certificates) of a given series may have a different Pass-Through Rate,
which may be a Fixed or Variable Pass-Through Rate, as described below. In the
case of Strip Certificates with no or, in certain cases, a nominal Certificate
Principal Balance, such distributions of interest will be in an amount (as to
any Distribution Date, "Stripped Interest") described in the related
prospectus supplement. For purposes hereof, "Notional Amount" means the
notional principal amount specified in the applicable prospectus supplement on
which interest on Strip Certificates will be calculated on each Distribution
Date. Reference to the Notional Amount of a class of Strip Certificates herein
or in a prospectus supplement does not indicate that such certificates
represent the right to receive any distribution in respect of principal in
such amount, but rather the term "Notional Amount" is used solely as a basis
for calculating the amount of required distributions and determining certain
relative voting rights, all as specified in the related prospectus supplement.
Fixed Rate Certificates. Each series (or, if more than one class
exists, each class within such series) of certificates with a Fixed
Pass-Through Rate ("Fixed Rate Certificates") will bear interest, on the
outstanding Certificate Principal Balance (as defined below) (or Notional
Amount, if applicable), from its Original Issue Date, at the Fixed
Pass-Through Rate stated on the face thereof and in the applicable prospectus
supplement until the earlier of (i) the final scheduled distribution date with
respect to such certificates and (ii) the date on which the Certificate
Principal Balance of such certificates has been reduced to zero (or in the
case of Strip Certificates with no or a nominal principal amount, until the
Notional Amount thereof is reduced to zero), except that, if so specified in
the applicable prospectus supplement, the Pass-Through Rate for such series or
any such class or classes may be subject to adjustment from time to time in
response to designated changes in the rating assigned to such certificates by
one or more rating agencies (or other reasons, if any, as set forth in the
applicable prospectus supplement), in accordance with a schedule or otherwise,
all as described in such prospectus supplement. Unless otherwise set forth in
the applicable prospectus supplement, interest on each series or class of
Fixed Rate Certificates will be distributable in arrears on each Distribution
Date as specified in such prospectus supplement. Each such distribution of
interest shall include interest accrued through the day specified in the
applicable prospectus supplement. Unless otherwise specified in the applicable
prospectus supplement, interest on Fixed Rate Certificates will be computed on
the basis of a 360-day year comprised of twelve 30-day months.
Floating Rate Certificates. Each series (or, if more than one class
exists, each class within such series) of certificates with a Variable
Pass-Through Rate ("Floating Rate Certificates") will bear interest, on the
outstanding Certificate Principal Balance (or Notional Amount, if applicable),
from its Original Issue Date to but excluding the first Interest Reset Date
for such series or class at the initial Pass-Through Rate set forth on the
face thereof and in the applicable prospectus supplement ("Initial
Pass-Through Rate"). Thereafter, the Pass-Through Rate on such series or class
for each Interest Accrual Period (as defined below) will be determined by
reference to an interest rate index (the "Base Rate"), plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any. The "Spread"
is the number of basis points (one basis point equals one one-hundredth of a
percentage point) that may be specified in the applicable prospectus
supplement as being applicable to such series or class, and the "Spread
Multiplier" is the percentage that may be specified in the applicable
prospectus supplement as being applicable to such series or class, except that
if so specified in the applicable prospectus supplement, the Spread or Spread
Multiplier on such series or any such class or classes of Floating Rate
Certificates may be subject to adjustment from time to time in response to
designated changes in the rating assigned to such certificates by one or more
rating agencies (or other reasons, if any, as set forth in the applicable
prospectus supplement), in accordance with a schedule or otherwise, all as
described in such prospectus supplement. The applicable prospectus supplement,
unless otherwise specified therein, will designate one of the following Base
Rates as applicable to a Floating Rate Certificate:
o LIBOR (a "LIBOR Certificate");
o the Commercial Paper Rate (a "Commercial Paper Rate
Certificate");
o the Treasury Rate (a "Treasury Rate Certificate");
o the Federal Funds Rate (a "Federal Funds Rate Certificate");
o the CD Rate (a "CD Rate Certificate"); or
o such other Base Rate which may be based on, among other things,
one or more market indices or the interest and/or other payments
(whether scheduled or otherwise) paid, accrued or available with
respect to a designated asset, pool of assets or type of asset
as is set forth in such prospectus supplement and in such
certificate.
The "Index Maturity" for any series or class of Floating Rate Certificates is
the period of maturity of the instrument or obligation from which the Base
Rate is calculated. "H.15(519)" means the publication entitled "Statistical
Release H.15(519), Selected Interest Rates," or any successor publications,
published by the Board of Governors of the Federal Reserve System. "Composite
Quotations" means the daily statistical release entitled "Composite 3:30 p.m.
Quotations for U.S. Government Securities" published by the Federal Reserve
Bank of New York.
As specified in the applicable prospectus supplement, Floating Rate
Certificates of a given series or class may also have either or both of the
following (in each case expressed as a rate per annum on a simple interest
basis): (i) a maximum limitation, or ceiling, on the rate at which interest
may accrue during any Interest Accrual Period specified in the applicable
prospectus supplement ("Maximum Pass-Through Rate") and (ii) a minimum
limitation, or floor, on the rate at which interest may accrue during any such
Interest Accrual Period ("Minimum Pass-Through Rate"). In addition to any
Maximum Pass-Through Rate that may be applicable to any series or class of
Floating Rate Certificates, the Pass-Through Rate applicable to any series or
class of Floating Rate Certificates will in no event be higher than the
maximum rate permitted by applicable law, if any, as the same may be modified
by United States law of general application.
The Depositor will appoint, and enter into agreements with, agents
(each, a "Calculation Agent") to calculate Pass-Through Rates on each series
or class of Floating Rate Certificates. The applicable prospectus supplement
will set forth the identity of the Calculation Agent for each series or class
of Floating Rate Certificates. All determinations of interest by the
Calculation Agent shall, in the absence of manifest error, be conclusive for
all purposes and binding on the holders of Floating Rate Certificates of a
given series or class.
The Pass-Through Rate on each class of Floating Rate Certificates
will be reset daily, weekly, monthly, quarterly, semiannually or annually
(such period being the "Interest Accrual Period" for such class, and the first
day of each Interest Accrual Period will be the "Interest Reset Date"), as
specified in the applicable prospectus supplement. Interest Reset Dates with
respect to each series, and any class within such series of Floating Rate
Certificates, will be specified in the applicable prospectus supplement;
[provided, however, that unless otherwise specified in such prospectus
supplement, the Pass-Through Rate in effect for the ten days immediately prior
to the Final Scheduled Distribution Date (as defined in the prospectus
supplement) will be that in effect on the tenth day preceding such Final
Scheduled Distribution Date.]
Unless otherwise specified in the applicable prospectus supplement,
interest payable in respect of Floating Rate Certificates shall be the accrued
interest from and including the Original Issue Date of such series or class or
the last Interest Reset Date to which interest has accrued and been
distributed, as the case may be, to but excluding the immediately following
Distribution Date.
With respect to a Floating Rate Certificate, accrued interest shall
be calculated by multiplying the Certificate Principal Balance of such
certificate [(or, in the case of a Strip Certificate with no or a nominal
Certificate Principal Balance, the Notional Amount specified in the applicable
prospectus supplement)] by an accrued interest factor. Such accrued interest
factor will be computed by adding the interest factors calculated for each day
in the period for which accrued interest is being calculated. Unless otherwise
specified in the applicable prospectus supplement, the interest factor
(expressed as a decimal calculated to seven decimal places without rounding)
for each such day is computed by dividing the Pass-Through Rate in effect on
such day by 360, in the case of LIBOR Certificates, Commercial Paper Rate
Certificates, Federal Funds Rate Certificates and CD Rate Certificates or by
the actual number of days in the year, in the case of Treasury Rate
Certificates. For purposes of making the foregoing calculation, the variable
Pass-Through Rate in effect on any Interest Reset Date will be the applicable
rate as reset on such date.
Unless otherwise specified in the applicable prospectus supplement,
all percentages resulting from any calculation of the Pass-Through Rate on a
Floating Rate Certificate will be rounded, if necessary, to the nearest
1/100,000 of 1% (.0000001), with five one-millionths of a percentage point
rounded upward, and all currency amounts used in or resulting from such
calculation on Floating Rate Certificates will be rounded to the nearest
one-hundredth of a unit (with .005 of a unit being rounded upward).
Interest on any series (or class within such series) of Floating Rate
Certificates will be distributable on the Distribution Dates and for the
Interest Accrual Periods as and to the extent set forth in the applicable
prospectus supplement.
Upon the request of the holder of any Floating Rate Certificate of a
given series or class, the Calculation Agent for such series or class will
provide the Pass-Through Rate then in effect and, if determined, the
Pass-Through Rate that will become effective on the next Interest Reset Date
with respect to such Floating Rate Certificate.
(1) CD Rate Certificates. Each CD Rate Certificate will bear interest
for each Interest Accrual Period at the Pass-Through Rate calculated with
reference to the CD Rate, the Spread and/or the Spread Multiplier, if any,
specified in such certificate and in the applicable prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement,
the "CD Rate" for each Interest Accrual Period shall be the rate as of the
second Business Day prior to the Interest Reset Date for such Interest Accrual
Period (a "CD Rate Determination Date") and will be the rate for negotiable
certificates of deposit having the Index Maturity designated in the applicable
prospectus supplement as published in H.15(519) under the heading "CDs
(Secondary Market)." In the event that such rate is not published prior to
3:00 p.m., New York City time, on the CD Rate Calculation Date (as defined
below) pertaining to such CD Rate Determination Date, then the "CD Rate" for
such Interest Accrual Period will be the rate on such CD Rate Determination
Date for negotiable certificates of deposit of the Index Maturity designated
in the applicable prospectus supplement as published in Composite Quotations
under the heading "Certificates of Deposit." If by 3:00 p.m., New York City
time, on such CD Rate Calculation Date such rate is not yet published in
either H.15(519) or Composite Quotations, then the "CD Rate" for such Interest
Accrual Period will be calculated by the Calculation Agent for such CD Rate
Certificate and will be the arithmetic mean of the secondary market offered
rates as of 10:00 a.m., New York City time, on such CD Rate Determination
Date, of three leading nonbank dealers in negotiable U.S. dollar certificates
of deposit in The City of New York selected by the Calculation Agent for such
CD Rate Certificate for negotiable certificates of deposit of major United
States money center banks of the highest credit standing (in the market for
negotiable certificates of deposit) with a remaining maturity closest to the
Index Maturity designated in the related prospectus supplement in a
denomination of $5,000,000; provided, however, that if the dealers selected as
aforesaid by such Calculation Agent are not quoting offered rates as mentioned
in this sentence, the "CD Rate" for such Interest Accrual Period will be the
same as the CD Rate for the immediately preceding Interest Accrual Period (or,
if there was no such Interest Accrual Period, the Initial Pass-Through Rate).
The "CD Rate Calculation Date" pertaining to any CD Rate
Determination Date shall be the first to occur of (a) the tenth calendar day
after such CD Rate Determination Date or, if such day is not a Business Day,
the next succeeding Business Day and (b) the second Business Day preceding the
date any distribution of interest is required to be made following the
applicable Interest Reset Date.
(2) Commercial Paper Rate Certificates. Each Commercial Paper Rate
Certificate will bear interest for each Interest Accrual Period at the
Pass-Through Rate calculated with reference to the Commercial Paper Rate and
the Spread or Spread Multiplier, if any, specified in such certificate and in
the applicable prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement,
the "Commercial Paper Rate" for each Interest Accrual Period will be
determined by the Calculation Agent for such Commercial Paper Rate Certificate
as of the second Business Day prior to the Interest Reset Date for such
Interest Accrual Period (a "Commercial Paper Rate Determination Date") and
shall be the Money Market Yield (as defined below) on such Commercial Paper
Rate Determination Date of the rate for commercial paper having the Index
Maturity specified in the applicable prospectus supplement, as such rate shall
be published in H.15(519) under the heading "Commercial Paper." In the event
that such rate is not published prior to 3:00 p.m., New York City time, on the
Commercial Paper Rate Calculation Date (as defined below) pertaining to such
Commercial Paper Rate Determination Date, then the "Commercial Paper Rate" for
such Interest Accrual Period shall be the Money Market Yield on such
Commercial Paper Rate Determination Date of the rate for commercial paper of
the specified Index Maturity as published in Composite Quotations under the
heading "Commercial Paper." If by 3:00 p.m., New York City time, on such
Commercial Paper Rate Calculation Date such rate is not yet published in
either H.15(519) or Composite Quotations, then the "Commercial Paper Rate" for
such Interest Accrual Period shall be the Money Market Yield of the arithmetic
mean of the offered rates, as of 11:00 a.m., New York City time, on such
Commercial Paper Rate Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent for
such Commercial Paper Rate Certificate for commercial paper of the specified
Index Maturity placed for an industrial issuer whose bonds are rated "AA" or
the equivalent by a nationally recognized rating agency; provided, however,
that if the dealers selected as aforesaid by such Calculation Agent are not
quoting offered rates as mentioned in this sentence, the "Commercial Paper
Rate" for such Interest Accrual Period will be the same as the Commercial
Paper Rate for the immediately preceding Interest Accrual Period (or, if there
was no such Interest Accrual Period, the Initial Pass-Through Rate).
"Money Market Yield" shall be a yield calculated in accordance with
the following formula:
Money Market Yield = D X 360 X 100
-------------
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the specified Index Maturity.
The "Commercial Paper Rate Calculation Date" pertaining to any
Commercial Paper Rate Determination Date shall be the first to occur of (a)
the tenth calendar day after such Commercial Paper Rate Determination Date or,
if such day is not a Business Day, the next succeeding Business Day or (b) the
second Business Day preceding the date any distribution of interest is
required to be made following the applicable Interest Reset Date.
(3) Federal Funds Rate Certificates. Each Federal Funds Rate
Certificate will bear interest for each Interest Accrual Period at the
Pass-Through Rate calculated with reference to the Federal Funds Rate and the
Spread or Spread Multiplier, if any, specified in such certificate and in the
applicable prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement,
the "Federal Funds Rate" for each Interest Accrual Period shall be the
effective rate on the Interest Reset Date for such Interest Accrual Period (a
"Federal Funds Rate Determination Date") for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." In the event that
such rate is not published prior to 3:00 p.m., New York City time, on the
Federal Funds Rate Calculation Date (as defined below) pertaining to such
Federal Funds Rate Determination Date, the "Federal Funds Rate" for such
Interest Accrual Period shall be the rate on such Federal Funds Rate
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 p.m., New York City time, on such
Federal Funds Rate Calculation Date such rate is not yet published in either
H.15(519) or Composite Quotations, then the "Federal Funds Rate" for such
Interest Accrual Period shall be the rate on such Federal Funds Rate
Determination Date made publicly available by the Federal Reserve Bank of New
York which is equivalent to the rate which appears in H.15(519) under the
heading "Federal Funds (Effective)"; provided, however, that if such rate is
not made publicly available by the Federal Reserve Bank of New York by 3:00
p.m., New York City time, on such Federal Funds Rate Calculation Date, the
"Federal Funds Rate" for such Interest Accrual Period will be the same as the
Federal Funds Rate in effect for the immediately preceding Interest Accrual
Period (or, if there was no such Interest Accrual Period, the Initial
Pass-Through Rate). Unless otherwise specified in the applicable prospectus
supplement, in the case of a Federal Funds Rate Certificate that resets daily,
the Pass-Through Rate on such Certificate for the period from and including a
Monday to but excluding the succeeding Monday will be reset by the Calculation
Agent for such certificate on such second Monday (or, if not a Business Day,
on the next succeeding Business Day) to a rate equal to the average of the
Federal Funds Rate in effect with respect to each such day in such week.
The "Federal Funds Rate Calculation Date" pertaining to any Federal
Funds Rate Determination Date shall be the next succeeding Business Day.
(4) LIBOR Certificates. Each LIBOR Certificate will bear interest for
each Interest Accrual Period at the Pass-Through Rate calculated with
reference to LIBOR and the Spread or Spread Multiplier, if any, specified in
such certificate and in the applicable prospectus supplement.
With respect to LIBOR indexed to the offered rate for U.S. dollar
deposits, unless otherwise specified in the applicable prospectus supplement,
"LIBOR" for each Interest Accrual Period will be determined by the Calculation
Agent for any LIBOR Certificate as follows:
(i) On the second London Banking Day prior to the Interest Reset
Date for such Interest Accrual Period (a "LIBOR Determination Date"),
the Calculation Agent for such LIBOR Certificate will determine the
arithmetic mean of the offered rates for deposits in U.S. dollars
for the period of the Index Maturity specified in the applicable
prospectus supplement, commencing on such Interest Reset Date, which
appear on the Reuters Screen LIBO Page at approximately 11:00 a.m.,
London time, on such LIBOR Determination Date. "Reuters Screen LIBO
Page" means the display designated as page "LIBOR" on the Reuters
Monitor Money Rates Service (or such other page may replace the LIBO
page on that service for the purpose of displaying London interbank
offered rates of major banks). If at least two such offered rates
appear on the Reuters Screen LIBO Page, "LIBOR" for such Interest
Accrual Period will be the arithmetic mean of such offered rates as
determined by the Calculation Agent for such LIBOR Certificate.
(ii) If fewer than two offered rates appear on the Reuters
Screen LIBO Page on such LIBOR Determination Date, the Calculation
Agent for such LIBOR Certificate will request the principal London
offices of each of four major banks in the London interbank market
selected by such Calculation Agent to provide such Calculation Agent
with its offered quotations for deposits in U.S. dollars for the
period of the specified Index Maturity, commencing on such Interest
Reset Date, to prime banks in the London interbank market at
approximately 11:00 a.m., London time, on such LIBOR Determination
Date and in a principal amount equal to an amount of not less than
$1,000,000 that is representative of a single transaction in such
market at such time. If at least two such quotations are provided,
"LIBOR" for such Interest Accrual Period will be the arithmetic mean
of such quotations. If fewer than two such quotations are provided,
"LIBOR" for such Interest Accrual Period will be the arithmetic mean
of rates quoted by three major banks in The City of New York selected
by the Calculation Agent for such LIBOR Certificate at approximately
11:00 a.m., New York City time, on such LIBOR Determination Date for
loans in U.S. dollars to leading European banks, for the period of
the specified Index Maturity, commencing on such Interest Reset Date,
and in a principal amount equal to an amount of not less than
$1,000,000 that is representative of a single transaction in such
market at such time; provided, however, that if fewer than three
banks selected as aforesaid by such Calculation Agent are quoting
rates as specified in this sentence, "LIBOR" for such Interest
Accrual Period will be the same as LIBOR for the immediately
preceding Interest Accrual Period (or, if there was no such Interest
Accrual Period, the Initial Pass-Through Rate).
If LIBOR with respect to any LIBOR Certificate is indexed to the
offered rates for deposits in a currency other than U.S. dollars, the
applicable prospectus supplement will set forth the method for determining
such rate.
(5) Treasury Rate Certificates. Each Treasury Rate Certificate will
bear interest for each Interest Accrual Period at the Pass-Through Rate
calculated with reference to the Treasury Rate and the Spread or Spread
Multiplier, if any, specified in such certificate and in the applicable
prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement,
the "Treasury Rate" for each Interest Accrual Period will be the rate for the
auction held on the Treasury Rate Determination Date (as defined below) for
such Interest Accrual Period of direct obligations of the United States
("Treasury bills") having the Index Maturity specified in the applicable
prospectus supplement, as such rate shall be published in H.15(519) under the
heading "U.S. Government Certificates-Treasury bills-auction average
(investment)" or, in the event that such rate is not published prior to 3:00
p.m., New York City time, on the Treasury Rate Calculation Date (as defined
below) pertaining to such Treasury Rate Determination Date, the auction
average rate (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) on such Treasury Rate
Determination Date as otherwise announced by the United States Department of
the Treasury. In the event that the results of the auction of Treasury bills
having the specified Index Maturity are not published or reported as provided
above by 3:00 p.m., New York City time, on such Treasury Rate Calculation
Date, or if no such auction is held on such Treasury Rate Determination Date,
then the "Treasury Rate" for such Interest Accrual Period shall be calculated
by the Calculation Agent for such Treasury Rate Certificate and shall be a
yield to maturity (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Treasury Rate Determination Date, of three
leading primary United States government securities dealers selected by such
Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the specified Index Maturity; provided, however, that if the
dealers selected as aforesaid by such Calculation Agent are not quoting bid
rates as mentioned in this sentence, then the "Treasury Rate" for such
Interest Accrual Period will be the same as the Treasury Rate for the
immediately preceding Interest Accrual Period (or, if there was no such
Interest Accrual Period, the Initial Pass-Through Rate).
The "Treasury Rate Determination Date" for such Interest Accrual
Period will be the day of the week in which the Interest Reset Date for such
Interest Accrual Period falls on which Treasury bills would normally be
auctioned. Treasury bills are normally sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is normally held
on the following Tuesday, except that such auction may be held on the
preceding Friday. If, as the result of a legal holiday, an auction is so held
on the preceding Friday, such Friday will be the Treasury Rate Determination
Date pertaining to the Interest Accrual Period commencing in the next
succeeding week. Unless otherwise specified in the applicable prospectus
supplement, if an auction date shall fall on any day that would otherwise be
an Interest Reset Date for a Treasury Rate Certificate, then such Interest
Reset Date shall instead be the Business Day immediately following such
auction date.
The "Treasury Rate Calculation Date" pertaining to any Treasury Rate
Determination Date shall be the first to occur of (a) the tenth calendar day
after such Treasury Rate Determination Date or, if such a day is not a
Business Day, the next succeeding Business Day or (b) the second Business Day
preceding the date any distribution of interest is required to be made
following the applicable Interest Reset Date.
Auction Rate Notes. Each series (or if more than one class exists,
each class within such series) of notes with respect to which the interest
rates are established through periodic auctions conducted in a manner similar
to the procedures set forth herein (the "Auction Rate Notes"). The auction
rate notes will have a stated maturity set forth in the applicable prospectus
supplement and will bear interest at the rate per annum specified in the
prospectus supplement through the first auction date. The interest period for
auction rate notes will initially consist of the number of days set forth in
the applicable prospectus supplement. The interest rate for the auction rate
notes will be reset on interest rate adjustment dates specified in the
applicable prospectus supplement at the interest rate determined pursuant to
the auction procedures described below, but the rate will not exceed the
maximum auction rate per annum set forth in the applicable prospectus
supplement. Interest on the auction rate notes will accrue daily and will be
computed for the actual number of days elapsed on the basis of a year
consisting of 360 days or 365 days as specified in the prospectus supplement.
Interest on the auction rate notes will be payable on the first business day
following the expiration of each interest period for the notes, and principal
on the auction rate notes will also be payable as specified in the applicable
prospectus supplement.
Determination of interest rate. The interest rate on each class of
auction rate notes will be determined periodically on interest rate
determination dates specified in the applicable prospectus supplement by means
of a "Dutch Auction." In this Dutch Auction, investors and potential investors
will submit orders through an eligible broker-dealer as to the principal
amount of auction rate notes they wish to buy, hold or sell at various
interest rates. The broker-dealers submit their clients' orders to the auction
agent. The auction agent processes all orders submitted by eligible
broker-dealers and determines the interest rate for the upcoming interest
period. The broker-dealers are notified by the auction agent of the interest
rate for the upcoming interest period and are provided with settlement
instructions relating to purchases and sales of auction rate notes. Auction
rate notes will be purchased and sold between investors and potential
investors at a price equal to their then-outstanding principal balance plus
any accrued interest.
In the auction, the following types of orders may be submitted:
o "bid/hold orders" - specify the minimum interest rate that a
current investor is willing to accept in order to continue to
hold auction rate notes for the upcoming interest period;
o "sell orders" - an order by a current investor to sell a
specified principal amount of auction rate notes, regardless of
the upcoming interest rate; and
o "potential bid orders" - specify the minimum interest rate that
a potential investor, or a current investor wishing to purchase
additional auction rate notes, is willing to accept in order to
buy a specified principal amount of auction rate notes.
If an existing investor does not submit orders with respect to all
its auction rate notes, the investor will be deemed to have submitted a hold
order at the new interest rate for that portion of the auction rate notes for
which no order was received.
Changes in auction period. The Depositor may, from time to time,
change the length of the auction period for a class of auction rate notes in
order to conform with then current market practice with respect to length of
the auction period and the interest rate borne by the auction rate notes.
Changes in the auction date. The applicable broker-dealer, with the
consent of the Depositor, may specify a different auction date for a class of
auction rate notes in order to conform with then current market practice with
respect to similar securities or to accommodate economic and financial factors
that may affect or be relevant to the day of the week constituting an auction
date for the auction rate notes.
Principal of the Certificates
Unless the related prospectus supplement provides otherwise, each
Certificate (other than certain classes of Strip Certificates) will have a
"Certificate Principal Balance" which, at any time, will equal the maximum
amount that the holder thereof will be entitled to receive in respect of
principal from the future cash flow on the Deposited Assets and any other
assets included in the related trust. Unless otherwise specified in the
related prospectus supplement, amounts collected on the Deposited Assets
generally will be applied to accrued interest on, then to principal of, and
then to premium (if any) on, each such certificate of the class or classes
entitled thereto (in the manner and priority specified in such prospectus
supplement) until the aggregate Certificate Principal Balance of such class or
classes has been reduced to zero. The outstanding Certificate Principal
Balance of a certificate will be reduced to the extent of (x) distributions of
principal thereon, (y) if applicable pursuant to the terms of the related
series, by the amount of any net losses realized on any Deposited Assets
("Realized Losses") allocated thereto and (z) if applicable pursuant to the
terms of the related series, any Extraordinary Trust Expenses consented to by
the Certificateholders. Unless the related prospectus supplement provides
otherwise, the initial aggregate Certificate Principal Balance of all classes
of certificates of a series will equal the outstanding aggregate principal
balance of the related Underlying Securities as of the applicable Cut-off
Date. The initial aggregate Certificate Principal Balance of a series and each
class thereof will be specified in the related prospectus supplement.
Distributions of principal to any class of certificates will be made on a pro
rata basis among all the certificates of such class. Strip Certificates with
no Certificate Principal Balance will not receive distributions of principal.
Foreign Currency Certificates
If the specified currency of any certificate is not U.S. dollars (a
"Foreign Currency Certificate"), certain provisions with respect thereto will
be set forth in the related prospectus supplement which will specify the
denominations, the currency or currencies in which the principal and interest
with respect to such certificate are to be paid and any other terms and
conditions relating to the non-U.S. dollar denominations or otherwise
applicable to the certificates.
[Indexed Certificates]
[From time to time, a trust may offer a series of certificates
("Indexed Certificates"), the principal amount payable at the stated maturity
date of which (the "Indexed Principal Amount") and/or interest with respect to
which is determined by reference to:
o the rate of exchange between the specified currency for such
certificate and the other currency or composite currency (the
"Indexed Currency") specified therein;
o the difference in the price of a specified commodity (the
"Indexed Commodity") on specified dates; or
o such other objective price or economic measure as described in
the related prospectus supplement.
The manner of determining the Indexed Principal Amount of an Indexed
Certificate and historical and other information concerning the Indexed
Currency, Indexed Commodity or other price or economic measure used in such
determination, will be set forth in the related prospectus supplement,
together with any information concerning tax consequences to the holders of
such Indexed Certificates.
Except as otherwise specified in the related prospectus supplement,
interest on an Indexed Certificate will be payable based on the amount
designated in the related prospectus supplement as the "Face Amount" of such
Indexed Certificate. The related prospectus supplement will describe whether
the principal amount of the related Indexed Certificate that would be payable
upon redemption or repayment prior to the stated maturity date will be the
Face Amount of such Indexed Certificate, the Indexed Principal Amount of such
Indexed Certificate at the time of redemption or repayment, or another amount
described in such prospectus supplement.]
Dual Currency Certificates
Certificates may be issued as dual currency certificates ("Dual
Currency Certificates"), in which case payments of principal and/or interest
in respect of Dual Currency Certificates will be made in such currencies, and
rates of exchange will be calculated upon such bases, as indicated in the
certificates and described in the related prospectus supplement. Other
material terms and conditions relating to Dual Currency Certificates will be
set forth in the certificates and the related prospectus supplement.
Put Options
If specified in the applicable prospectus supplement, a holder may
put certificates of a given series to the Depositor or a third party. The
terms upon which a holder may put its certificates (including the price) will
be specified in the related prospectus supplement; provided, however, any put
option shall be exercisable only to the extent that such put would not be
inconsistent with the Depositor's or the Trust's continued satisfaction of the
applicable requirements for exemption under Rule 3a-7 under the Investment
Company Act of 1940 and all applicable rules, regulations and interpretations
thereunder.
Optional Exchange
If specified in the applicable prospectus supplement, a holder may
exchange certificates of such series for a pro rata portion of the Underlying
Securities (an "Exchangeable Series"). The terms upon which a holder may
exchange certificates of any Exchangeable Series for a pro rata portion of the
Underlying Securities of the related trust will be specified in the related
prospectus supplement and the related trust agreement; provided that any right
of exchange shall be exercisable only to the extent that such exchange would
not be inconsistent with the Depositor and such trust's continued satisfaction
of the applicable requirements for an exemption under Rule 3a-7 under the
Investment Company Act of 1940 and all applicable rules, regulations and
interpretations thereunder. Such terms may relate to the following:
o a requirement that the exchanging holder tender to the trustee
certificates of each class within such Exchangeable Series;
o a minimum Certificate Principal Balance or Notional Amount, as
applicable, with respect to each certificate being tendered for
exchange;
o a requirement that the Certificate Principal Balance or Notional
Amount, as applicable, of each certificate tendered for exchange
be an integral multiple of an amount specified in the prospectus
supplement;
o specified dates during which a holder may effect such an
exchange (each, an "Optional Exchange Date");
o limitations on the right of an exchanging holder to receive any
benefit upon such exchange from any other deposited assets or
any credit support deposited in the applicable trust;
o adjustments to the value of the proceeds of any exchange based
upon the required prepayment of future expense allocations and
the establishment of a reserve for any anticipated extraordinary
trust expenses as set forth in the applicable prospectus
supplement, if applicable;
o a requirement that the exchanging holder provide to the trustee
an opinion of counsel stating that the exchange would not cause
the trust to be treated as an association or publicly traded
partnership, taxable as a corporation for federal income tax
purposes; and
o requirement that the exchanging holder pay any due and unpaid
fees and expenses owed to the trustee and/or to the
administrative agent, if any.
Unless otherwise specified in the related prospectus supplement, in
order for a certificate of a given Exchangeable Series (or class within such
Exchangeable Series) to be exchanged by the applicable certificateholder, the
trustee for such series must receive, at least 5 (or such shorter period
acceptable to the trustee) but not more than 30 days prior to an Optional
Exchange Date (i) such certificate with the form entitled "Option to Elect
Exchange" on the reverse thereof duly completed, or (ii) in the case of
registered certificates, facsimile or electronic 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 certificate, the Certificate
Principal Balance or Notional Amount of the registered certificate to be
exchanged, the certificate number or a description of the tenor and terms of
the registration certificate, a statement that the option to elect exchange is
being exercised thereby and a guarantee that the registered certificate to be
exchanged with the form entitled "Option to Elect Exchange" on the reverse of
the registered certificate duly completed will be received by such trustee not
later than five Business Days after the date of such telegram, telex,
facsimile or electronic transmission or letter. If the procedure described in
clause (ii) of the preceding sentence is followed, then such registered
certificate and form duly completed must be received by such trustee by such
fifth Business Day. Any tender of a certificate by the holder for exchange
shall be irrevocable. The exchange option may be exercised by the holder of a
certificate for less than the entire Certificate Principal Balance of such
certificate provided that the Certificate Principal Balance or Notional
Amount, as applicable, of such certificate remaining outstanding after
redemption is an authorized denomination and all other exchange requirements
set forth in the related prospectus supplement are satisfied. Upon such
partial exchange, such certificate shall be cancelled and a new certificate or
certificates for the remaining Certificate Principal Balance thereof shall be
issued (which, in the case of any registered certificate, shall be in the name
of the holder of such exchanged certificate).
Unless otherwise specified in the applicable prospectus supplement,
until definitive certificates are issued each certificate will be represented
by a global security, the Depositary's nominee will be the certificateholder
of such certificate and therefore will be the only entity that can exercise a
right of exchange. In order to ensure that the Depositary's nominee will
timely exercise a right of exchange with respect to a particular certificate,
the beneficial owner of such certificate must instruct the broker or other
direct or indirect participant through which it holds an interest in such
certificate to notify the Depositary of its desire to exercise a right of
exchange. Different firms have different cut-off times for accepting
instructions from their customers and, accordingly, each beneficial owner
should consult the broker or other direct or indirect participant through
which it holds an interest in a certificate in order to ascertain the cut-off
time by which such an instruction must be given in order for timely notice to
be delivered to the Depositary.
Unless otherwise provided in the applicable prospectus supplement,
upon the satisfaction of the foregoing conditions and any applicable
conditions with respect to the related Underlying Securities, as described in
such prospectus supplement, the applicable certificateholder will be entitled
to receive a distribution of a pro rata share of the Underlying Securities
related to the Exchangeable Series (and class within such Exchangeable Series)
of the certificate being exchanged, in the manner and to the extent described
in such prospectus supplement. Alternatively, to the extent so specified in
the applicable prospectus supplement, the applicable certificateholder, upon
satisfaction of such conditions, may direct the related Trustee to sell, on
behalf of the certificateholder, such pro rata share of the Underlying
Securities. In such event, the certificateholder will be entitled to receive
the net proceeds of such sale, less any costs and expenses incurred by the
trustee in facilitating the sale, subject to any additional adjustments set
forth in the applicable prospectus supplement.
Global Securities
Unless otherwise specified in the applicable prospectus supplement,
all certificates 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. The global securities will be deposited with, or on
behalf of, The Depository Trust Company, New York, New York (for registered
certificates denominated and payable in U.S. dollars), or such other
depositary identified in the related prospectus supplement (the "Depositary"),
and registered in the name of a nominee of the Depositary. Global securities
may be issued in either registered or bearer form and in either temporary or
permanent form. See "Limitations on Issuance of Bearer Certificates" for
provisions applicable to certificates issued in bearer form. Unless and until
it is exchanged in whole or in part for the individual certificates
represented thereby (each a "definitive certificate"), 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.
The Depository Trust Company is a limited-purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. The Depository Trust Company
was created to hold securities of its participating organizations and to
facilitate the clearance and settlement of securities transactions among the
institutions that have accounts with the Depositary ("participants") in such
securities through electronic book-entry changes in the accounts of the
Depositary participants, thereby eliminating the need for physical movement of
securities certificates. The Depositary's participants include securities
brokers and dealers (including Banc of America Securities LLC), banks, trust
companies, clearing corporations, and certain other organizations, some of
whom (and/or their representatives) own the Depositary. Access to the
Depositary's book-entry system is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Upon the issuance of a global security, the Depositary for the global
security will credit, on its book-entry registration and transfer system, the
respective principal amounts or notional amounts, if applicable, of the
individual certificates represented by such global security to the accounts of
its participants. The accounts to be credited shall be designated by the
underwriters of such certificates, or, if such certificates are offered and
sold directly through one or more agents, by the Depositor or its agent or
agents. Ownership of beneficial interests in a Global Security will be limited
to participants or persons that may hold beneficial interests through
participants. Ownership of beneficial interests in a global security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary for such global security or by
participants or persons that hold through participants. The laws of some
states require that certain purchasers of securities take physical delivery of
such securities. Such limits and such laws may limit the market for beneficial
interests in a global security.
So long as the Depositary for a global security, or its nominee, is
the owner of the global security, the Depositary or the nominee, as the case
may be, will be considered the sole certificateholder of the individual
certificates represented by such global security for all purposes under the
trust agreement governing the certificates. Except as set forth below, owners
of beneficial interests in a global security will not be entitled to have any
of the individual certificates represented by the global security registered
in their names, will not receive or be entitled to receive physical delivery
of any certificates and will not be considered the certificateholder thereof
under the trust agreement governing the certificates. Because the Depositary
can only act on behalf of its participants, the ability of a holder of any
certificate to pledge that certificate to persons or entities that do not
participate in the Depositary's system, or to otherwise act with respect to
the certificate, may be limited due to the lack of a physical certificate for
the certificate.
Subject to the restrictions discussed under "Limitations on Issuance
of Bearer Certificates" below, distributions of interest, principal of (and
premium, if any) on individual certificates represented by a global security
will be made to the Depositary or its nominee, as the case may be, as the
certificateholder of the global security. None of the Depositor, the
administrative agent, if any, the trustee for the certificates, any paying
agent or the certificate registrar for the certificates will have
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in a global security or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
The Depositor expects that the Depositary for certificates of a given
class and series, upon receipt of any distribution of interest, principal, or
premium in respect of a definitive global security representing any
certificates, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of the global security as shown on the records of such
Depositary. The Depositor also expects that payments by participants to owners
of beneficial interests in a global security held through such participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such
participants. Receipt by owners of beneficial interests in a temporary global
security of payments of interest, principal, or premium in respect thereof
will be subject to the restrictions discussed below under "Limitations on
Issuance of Bearer Certificates" below.
If the Depositary for certificates of a given class of any series is
at any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Depositor within ninety days, the Depositor
will issue individual definitive certificates in exchange for the global
security or securities representing such certificates. In addition, the
Depositor may at any time and in its sole discretion determine not to have any
certificates of a given class represented by one or more global securities
and, in such event, will issue individual definitive certificates of such
class in exchange for the global security or securities representing such
certificates. Further, if the Depositor so specifies with respect to the
certificates of a given class, an owner of a beneficial interest in a global
security representing certificates of such class may, on terms acceptable to
the Depositor and the Depositary of the global security, receive individual
definitive certificates in exchange for such beneficial interest. In any such
instance, an owner of a beneficial interest in a global security will be
entitled to physical delivery of individual definitive certificates of the
class represented by the global security equal in principal amount or notional
amount, if applicable, to such beneficial interest and to have definitive
certificates registered in its name (if the certificates of such class are
issuable as registered certificates). Individual definitive certificates of
such class so issued will be issued:
o as registered certificates in denominations, unless otherwise
specified by the Depositor or in the related prospectus
supplement, of $1,000 and integral multiples thereof if the
certificates of such class are issuable as registered
certificates;
o as bearer certificates in the denomination or denominations
specified by the Depositor or as specified in the related
prospectus supplement if the certificates of such class are
issuable as bearer certificates; or
o as either registered or bearer certificates, if the certificates
of such class are issuable in either form.
See, however, "Limitations on Issuance of Bearer Certificates" below for a
description of certain restrictions on the issuance of individual bearer
certificates in exchange for beneficial interests in a global security.
The applicable prospectus supplement will set forth any specific
terms of the depositary arrangement with respect to any class or series of
Certificates being offered thereby to the extent not set forth or different
from the description set forth above.
DESCRIPTION OF DEPOSITED ASSETS
General
Each certificate of each series (or if more than one class exists,
each class (whether or not each such class is offered hereby) within such
series) will represent an undivided ownership interest specified for such
series (or class) of certificates in a designated, publicly issued, security
or a pool of securities (the "Underlying Securities"), purchased by the
Depositor (or an affiliate thereof) in the secondary market (except in cases
where the Depositor (or an affiliate thereof) purchases securities directly
from certain GSEs or purchases Treasury Securities (as defined below) directly
from the issuer thereof as described below) and any other deposited assets or
credit support applicable to such series (or if more than one class exists,
each class) assigned to a trust as described in the applicable prospectus
supplement.
Description of the Underlying Securities
The Underlying Securities will represent one or more of the
following:
o debt obligations of one or more corporations, limited liability
companies, banking organizations or insurance companies
organized under the laws of the United States or any state, the
District of Columbia or the Commonwealth of Puerto Rico, which
in each case is subject to the informational requirements of the
Exchange Act and which, in accordance therewith, file reports
and other information with the SEC or (for certain depository
institutions) with a federal bank or thrift regulatory agency
(unless in the case of a security guaranteed by a parent company
(i) the guarantor files such reports and (ii) the issuer is
exempt from such filing requirements pursuant to Rule 3-10 of
SEC Regulation S-X) ("Domestic Corporate Securities") and the
Depositor reasonably believes (based on publicly available
information) that, if such security or securities are
Concentrated Underlying Securities (as defined below), the
issuer meets the market capitalization and other requirements
for a primary issuance of common stock on Form S-3 at the time
of offering of the trust certificates (or in the case of a
guaranteed security, the Depositor reasonably believes the
guarantor meets such market capitalization and other
requirements for a primary issuance of common stock on Form S-3,
as applicable). Such debt securities may include without
limitation, any of the following: (i) preferred securities of
one or more trusts that hold obligations of issuers that are
subject, or are wholly-owned subsidiaries of companies that are
subject to the informational requirements of the Exchange Act
(in which case such parent companies have fully and
unconditionally guaranteed such obligations) and which, in
accordance therewith, file reports and other information with
the SEC ("Trust Preferred Securities") and, the Depositor
reasonably believes (based on publicly available information)
that, if such trust preferred securities are Concentrated
Underlying Securities, that the issuer or parent is eligible for
a primary offering of common stock on Form S-3 or Form F-3 at
the time of offering of the trust certificates; (ii) equipment
trust certificates, including enhanced equipment trust
certificates and pass-through equipment trust certificates,
issued by, or supported by obligations of, issuers that are
subject, or are wholly-owned subsidiaries of parent companies
that are subject (in which case such parent companies have fully
and unconditionally guaranteed such obligations on a subordinate
or non-subordinate basis), to the informational requirements of
the Exchange Act and, in accordance therewith, file reports and
other information with the SEC (all such certificates,
"Equipment Trust Certificates") and, the Depositor reasonably
believes (based on publicly available information) that, if such
Equipment Trust Certificates are Concentrated Underlying
Securities, the issuer or parent is eligible to use Form S-3 or
Form F-3 for a primary offering of common stock at the time of
offering of the trust certificates; or (iii) asset-backed
securities of one or more trusts or other special purpose legal
entities (issued as part of a series which has an outstanding
balance of at least $75,000,000 in securities which are held by
non-affiliates) which (unless the depositor is a GSE described
below) are subject at the time of issuance of the asset-backed
securities to the informational requirements of the Exchange Act
and which in accordance therewith, file reports and other
information with the SEC ("Asset-Backed Securities" and together
with Corporate Securities, Trust Preferred Securities and
Equipment Trust Certificates, the "Private Sector Securities");
o obligations issued or guaranteed by a foreign government or any
political subdivision or agency or instrumentality thereof
("Foreign Government Securities");
o debt securities of one or more foreign private issuers (as such
term is defined in rule 405 under the Securities Act) subject to
the informational requirements of the Exchange Act and which in
accordance therewith file reports and other information with the
SEC (unless in the case of a security guaranteed by a parent
company (i) the guarantor files such reports and (ii) the issuer
is exempt from such filing requirements pursuant to Rule 3-10 of
SEC Regulation S-X) ("Foreign Private Securities" and together
with Domestic Corporate Securities, the "Corporate Securities")
and the Depositor reasonably believes (based on publicly
available information) that, if such securities are Concentrated
Underlying Securities, the issuer is eligible to use Form F-3
for a primary offering of common stock at the time of offering
of the trust certificates (or in the case of a guaranteed
security the depositor reasonably believes the guarantor meets
such requirements);
o an obligation issued or guaranteed by the United States of
America or any agency thereof for the payment of which the full
faith and credit of the United States of America is pledged
("Treasury Securities"); including without limitation (i) an
obligation of one or more U.S. government sponsored entities
("GSEs") described below for the payment of which the full faith
and credit of the United States of America is not pledged; or
(ii) Government Trust Certificates ("GTCs" and together with
Treasury Securities and GSEs, "Domestic Government Securities"
and together with Foreign Government Securities, "Government
Securities") described below; or
o an obligation issued by a Multilateral Bank Issuer (as defined
below).
The Depositor (or an affiliate thereof) may purchase securities
directly from certain GSEs that (i) have outstanding securities held by
non-affiliates with an aggregate market value of at least $75,000,000 at the
time of the offering of the trust certificates hereunder and (ii) make
information publicly available comparable to that required of Exchange Act
reporting entities. The Depositor (or an affiliate thereof) may also purchase
Treasury Securities directly from the issuer thereof.
Notwithstanding any requirement stated or incorporated herein
relating to reporting under the Exchange Act, it should be noted that the
issuers of the Underlying Securities are not participating in any offering of
trust certificates and that the Depositor and BAS will not perform the
analysis and review of such issuers that an underwriter of the Underlying
Securities would perform. The reasonableness of the Depositor's belief as to
an Underlying Security issuer's eligibility to issue common stock on Form S-3
or Form F-3, as applicable, should be evaluated in light of these limitations.
[An Underlying Security that was originally issued in a private
placement will be considered "publicly issued" for purposes of this prospectus
and the related supplement if the Depositor and the related trust could sell
such Underlying Security pursuant to Rule 144(k) under the Securities Act.
Such securities may be Deposited Assets notwithstanding that they are not
registered under the Securities Act.]
This prospectus relates only to the certificates offered hereby and
does not relate to the Underlying Securities. The following description of the
Underlying Securities is intended only to summarize certain characteristics of
the Underlying Securities the Depositor is permitted to deposit in a trust and
is not a complete description of the terms of any specific Underlying
Security, or any related Underlying Securities Indenture (as defined below)
and as qualified by reference to the applicable prospectus supplement and
prospectus relating to any Underlying Security, if any, and to the extent
applicable, the statement of terms or similar document with respect to any
Underlying Security, and if applicable, the Underlying Securities Indenture.
Private Sector Securities
Private Sector Securities will be either:
o Corporate Securities;
o Trust Preferred Securities;
o Equipment Trust Certificates; or
o Asset-Backed Securities.
Corporate Securities. Corporate Securities may consist of senior or
subordinated debt obligations issued by domestic or foreign issuers as
described above. Debt obligations may be issued with a wide variety of terms
and conditions. Set forth below is a description of certain features that may
be associated with one or more Underlying Securities consisting of debt
obligations.
Indentures. With respect to senior or subordinated debt obligations,
the related prospectus supplement will specify whether each Underlying
Security will have been issued pursuant to an indenture (each, an "Underlying
Securities Indenture") between the issuer of the Underlying Securities and a
trustee (the "Underlying Securities Trustee"). Unless otherwise set forth in
the related prospectus supplement, the Underlying Securities Indenture, if
any, will be qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the Underlying Securities Indenture will contain
certain provisions required by the Trust Indenture Act.
Certain Covenants. Indentures generally contain covenants intended to
protect security holders against the occurrence or effects of certain
specified events, including restrictions limiting the ability of any
Underlying Securities issuer and in some cases limiting the ability of any
subsidiaries of any Underlying Securities issuer to:
o consolidate, merge, or transfer or lease assets;
o incur or suffer to exist any lien, charge, or encumbrance upon
any of its property or assets;
o incur, assume, guarantee or suffer to exist any indebtedness for
borrowed money if the payment of such indebtedness will be
secured by the grant of a lien on the assets which are subject
to the lien of the indenture; or
o declare or pay any cash dividends, or make any distributions on
or in respect of, or purchase, redeem, exchange or otherwise
acquire or retire for value any capital stock or subordinated
indebtedness of the issuer or its subsidiaries, if any.
An indenture may also contain financial covenants which, among other things,
require the maintenance of certain financial ratios or the creation or
maintenance of reserve accounts. Subject to specified exceptions, indentures
typically may be, amended or supplemented and past defaults may be waived with
the consent of the indenture trustee, the consent of the holders of not less
than a specified percentage of the outstanding securities, or both.
The Underlying Securities Indenture related to one or more Underlying
Securities included in a trust may include some, all or none of the foregoing
provisions or variations thereof or additional covenants not discussed herein.
To the extent that the Underlying Securities are investment grade debt they
are unlikely to contain significant restrictive covenants although certain
non-investment grade debt may not be subject to restrictive covenants either.
There can be no assurance that any such provision will protect the trust as a
holder of the Underlying Securities against losses.
Events of Default. Indentures generally provide that any one of a
number of specified events will constitute an event of default with respect to
the securities issued thereunder. Such events of default may typically include
any of the following events or variations thereof:
o failure by the issuer to make a scheduled interest or principal
payment on the securities at the time required (subject to any
specified grace period) or to redeem any of the securities when
required (subject to any specified grace period);
o a breach by the issuer of any representation or warranty or its
failure to observe or perform any covenant, agreement or
condition contained in the indenture, which breach or failure is
materially adverse to security holders and continues for a
specified period after notice thereof is given to the issuer by
the indenture trustee or the holders of not less than a
specified percentage of the outstanding securities; or
o certain events of bankruptcy, insolvency or reorganization of
the issuer.
Remedies. Indentures for Corporate Securities generally provide that
upon the occurrence of an event of default, the indenture trustee may, and
upon the written request of the holders of not less than a specified
percentage of the outstanding securities must, take such action to protect and
enforce the rights of the security holders. Certain indentures provide that
the indenture trustee or a specified percentage of the holders of the
outstanding securities have the right to declare all or a portion of the
principal and accrued interest on the outstanding securities immediately due
and payable upon the occurrence of certain events of default, subject to the
issuer's right to cure, if applicable. An indenture may also contain a
provision entitling the indenture trustee to be indemnified by the security
holders prior to proceeding to exercise any right or power under such
indenture with respect to such securities at the request of such security
holders. An indenture is also likely to limit a security holder's right to
institute certain actions or proceedings to pursue remedies under the
indenture unless certain conditions are satisfied, including (i) the
securityholder shall have given notice to the indenture trustee of the
occurrence of an event of default; (ii) the holders of a specified percentage
of the securities shall have requested that the indenture trustee institute
proceedings; (iii) the indenture trustee shall have refused or neglected to
comply with such request within a reasonable time; and (iv) no conflicting
instruction shall have been given to the indenture trustee.
Each Underlying Securities Indenture or Underlying Security may
include some, all or none of the foregoing provisions or variations thereof or
additional events of default or remedies not discussed herein. The prospectus
supplement with respect to any series of certificates will summarize the
events of default ("Underlying Security Events of Default") relevant to any
Underlying Security that represents ten percent (10%) or more of the total
Underlying Securities with respect to any series of certificates (any such
security, a "Concentrated Underlying Security") and applicable remedies with
respect thereto. With respect to any trust comprised of a pool of securities,
the applicable prospectus supplement will describe certain common Underlying
Security Events of Default with respect to such pool. There can be no
assurance that any such provisions will protect the trust, as a holder of the
Underlying Securities, against losses. If an Underlying Security Event of
Default occurs, the indenture trustee as a holder of the Underlying Securities
is entitled to vote or take such other action to declare the principal amount
of an Underlying Security and any accrued and unpaid interest thereon to be
due and payable, the certificateholders' objectives may differ from those of
holders of other securities of the same series and class as any Underlying
Security ("Outstanding Debt Securities") in determining whether to declare the
acceleration of the Underlying Securities.
Subordination. As set forth in the applicable prospectus supplement,
certain of the Underlying Securities with respect to any trust may be either
senior ("Senior Underlying Securities") or subordinated ("Subordinated
Underlying Securities") in right to payment to other existing or future
indebtedness of the Underlying Securities Issuer. With respect to Subordinated
Underlying Securities, to the extent of the subordination provisions of such
securities, and after the occurrence of certain events, security holders and
direct creditors whose claims are senior to Subordinated Underlying
Securities, if any, may be entitled to receive payment of the full amount due
thereon before holders of the Subordinated Underlying Securities are entitled
to receive payment on account of the principal (and premium, if any) or any
interest on such securities. Consequently, a trust which holds Subordinated
Underlying Securities may suffer greater losses than if it held Senior
Underlying Securities. There can be no assurance, however, that in the event
of a bankruptcy or similar proceeding, a trust, as a holder of Senior
Underlying Securities, would receive all payments in respect of such
securities even if holders of subordinated securities receive amounts in
respect of such securities. Reference is made to the prospectus supplement
used to offer any series of certificates for a description of any
subordination provisions with respect to any Concentrated Underlying
Securities and the percentage of Senior Underlying Securities and Subordinated
Underlying Securities, if any, in a trust comprised of a pool of securities.
Secured Obligations. Certain of the Underlying Securities with
respect to any trust may represent secured obligations of the issuer of the
Underlying Securities ("Secured Underlying Securities"). Generally, unless an
event of default shall have occurred and is continuing, with respect to any
Secured Underlying Security, or as otherwise set forth in the indenture
pursuant to which such Secured Underlying Securities were offered and sold, an
issuer of secured obligations generally has the right to remain in possession
and retain exclusive control of the collateral securing a Secured Underlying
Security and to collect, invest and dispose of any income related to the
collateral. The indenture pursuant to which any Secured Underlying Security is
issued may also contain provisions for release, substitution or disposition of
collateral under specified circumstances with or without the consent of the
indenture trustee or upon the direction of not less than a specified
percentage of the security holders. The indenture pursuant to which any
Secured Underlying Security is issued will also provide for the disposition of
the collateral upon the occurrence of specified events of default with respect
thereto. In the event of a default in respect of any secured obligation,
security holders may experience a delay in payments on account of principal
(and premium, if any) or any interest on such securities pending the sale of
any pledged collateral and prior to or during such period the related
collateral may decline in value. In general, if proceeds of the sale of
pledged collateral following an indenture event of default are insufficient to
repay all amounts due in respect of any secured obligations, the holders of
such Secured Underlying Securities (to the extent not repaid from the proceeds
of the sale of the collateral) would have only an unsecured claim ranking pari
passu with the claims of all other general unsecured creditors for the amount
of any shortfall.
The Underlying Securities Indenture with respect to any Secured
Underlying Security may include, some, all or none of the foregoing provisions
or variations thereof. The prospectus supplement used to offer any series of
certificates which includes Concentrated Underlying Securities which are
Secured Underlying Securities, will describe the security provisions of the
Underlying Securities and the related collateral. With respect to any trust
comprised of a pool of securities, a substantial portion of which are Secured
Underlying Securities, the applicable prospectus supplement will disclose
general information with respect to such security provisions and describe the
pledged collateral.
Trust Preferred Securities. As specified in the related prospectus
supplement, a trust may include one or more Trust Preferred Securities. Trust
Preferred Securities are preferred equity securities issued by a trust, such
as a Delaware statutory business trust, established for the purpose of issuing
common and preferred equity securities and investing the proceeds in certain
subordinated debt obligations. The subordinated debt obligations are issued by
the parent of the trust (i.e. the company to whom the trust issues its common
equity securities, or by an affiliate of such parent. Trust Preferred
Securities generally have economic characteristics that mirror those of the
subordinated debt obligations that are the trust's principal assets.)
Specifically, the Trust Preferred Securities generally have a liquidation
preference equal to the aggregate principal balance of the subordinated debt
obligations and are subject to mandatory redemption on the maturity date of
the subordinated debt obligations, or such earlier date on which the issuer
may prepay the subordinated debt. The Trust Preferred Securities generally pay
dividends at a rate approximately equal to the interest rate on the
subordinated debt obligations, and such dividends and interest payments
generally are due on or about the same date.
The trusts that issue Trust Preferred Securities generally have no
assets other than the subordinated debt obligations issued by such trusts'
affiliates. Such subordinated debt obligations are subordinated to all other
unsubordinated debt of such affiliates, including such debt issued subsequent
to issuance of such subordinated debt obligations.
The trusts that issue Trust Preferred Securities in each case will
not file reports under the Exchange Act so long as their parent companies file
reports under the Exchange Act.
Equipment Trust Certificates. As specified in the related prospectus
supplement, a trust may include one or more Equipment Trust Certificates.
Equipment Trust Certificates are generally issued, in one or more classes, by
a trust or other special purpose legal entity that owns equipment or by an
owner/operator of the equipment, including airlines (an "ETC Issuer"). Such
obligations of ETC Issuers are secured by mortgages of the equipment and, in
the case of special purpose ETC Issuers, typically are supported by
assignments of lease payments on equipment under leases to operators of the
equipment. Pass-through Equipment Trust Certificates are issued by a trust or
other special purpose legal entity that holds Equipment Trust Certificates of
other ETC Issuers.
The ETC Issuer which is an owner/operator of the equipment or the
lessee of the equipment from the ETC Issuer which is a special purpose legal
entity is referred to as the "ETC Credit Entity." In view of the relationship
of special purpose ETC Issuers to ETC Credit Entities, ETC Issuers generally
will not file reports under the Exchange Act.
Asset-Backed Securities. As specified in the related prospectus
supplement, a trust may include one or more Asset-Backed Securities.
Asset-Backed Securities may be asset-backed notes or pass-through
certificates, in each case issued by a trust or other special-purpose entity.
Asset-backed notes are secured by, and pass-through certificates represent an
undivided interest in, a fixed or revolving pool of financial assets. Such
financial assets may consist of secured or unsecured consumer debt or other
receivables, such as automobile loans or contracts, automobile leases, credit
card receivables, home equity or other mortgage loans, trade receivables,
floor plan (inventory) loans, automobile leases, equipment leases, and other
assets that produce streams of payments. Asset-backed notes generally are
issued pursuant to indentures and pass-through certificates generally are
issued pursuant to trust or pooling and servicing agreements. A separate
servicing agreement typically is executed in connection with asset-backed
notes (such servicing agreements, indentures, trust agreements and pooling and
servicing agreements, the "Asset-Backed Agreements").
The Asset-Backed Agreements provide for the appointment of a trustee
and the segregation of the transferred pool of assets from the other assets of
the transferor. Such segregation generally is only required to the extent
necessary to perfect the interest of the trustee in the assets against claims
of unsecured creditors of the transferor of the assets. Where so required by
the Uniform Commercial Code (the "UCC") (for instance, home equity loan notes)
certain of the documents evidencing the underlying receivables are delivered
to the possession of the trustee or other custodian for the holders of the
Asset-Backed Securities. In the case of most assets, either no documents
evidence the receivables (for instance, credit card receivables) or documents
exist, but the UCC does not require their possession to perfect a transfer
(for instance, automobile installment sales contracts). In these cases, the
transferor segregates the assets only on its own books and records, such as by
marking its computer files, and perfects the trustee's interest by filing a
financing statement under the UCC. This method of segregation and perfection
presents the risk that the trustee's interest in the assets could be lost as a
result of negligence or fraud, such that the trustee and the Asset-Backed
Security holders become unsecured creditors of the transferor of the assets.
Government Securities
Government Securities will be either:
o GSE Securities;
o GTCs;
o Treasury Securities; or
o Foreign Government Securities.
GSE Securities. As specified in the applicable prospectus supplement,
the obligations of one or more of the following GSEs may be included in a
trust: Federal National Mortgage Association ("Fannie Mae"), Federal Home Loan
Mortgage Corporation ("FHLMC"), Student Loan Marketing Association ("Sallie
Mae"), Resolution Funding Corporation, Federal Home Loan Banks (to the extent
such obligations represent the joint and several obligations of the twelve
Federal Home Loan Banks) ("Freddie Mac"), Tennessee Valley Authority and
Federal Farm Credit Banks. While most issuers of GSE debt securities generally
are exempt from registration under the Securities Act pursuant to Section
3(a)(2) of the Securities Act (or are deemed by statute to be so exempt) and
are not required to be registered under the Exchange Act, Fannie Mae and FHLMC
have recently agreed to voluntarily provide to investors the same information
as is provided by issuers of mortgage-backed securities who register their
securities under the Securities Act. The securities of any GSE will be
included in a trust only to the extent (A) its obligations are supported by
the full faith and credit of the U.S. government or (B) the organization makes
publicly available its annual report, which shall include financial statements
or similar financial information with respect to the organization. Based on
information contained in the offering document pursuant to which any GSE
issuer's securities were originally offered, the applicable prospectus
supplement will set forth information with respect to the public availability
of information with respect to any GSE issuer the debt securities of which
constitute more than ten percent of the Underlying Securities for any series
of Certificates as of the date of the prospectus supplement. The specific
terms and conditions of the Underlying Securities will be set forth in the
related prospectus supplement.
In the case of a GSE issuer there will generally be a fiscal agent
with respect to any related Underlying Security whose actions will be governed
by a fiscal agency agreement. A fiscal agent is not a trustee for the holders
of the Underlying Securities and does not have the same responsibilities or
duties to act for the holders of a GSE's securities as would a trustee. Unless
otherwise specified in the related prospectus supplement, the Underlying
Securities with respect to any GSE issuer will not be guaranteed by the United
States and do not constitute a debt or obligation of the United States or of
any agency or instrumentality thereof other than the related GSE.
GSE Issuers. The following is a brief description of the business of
each potential GSE issuer whose securities may be purchased by the Depositor
for inclusion in one or more trusts:
Fannie Mae
Fannie Mae is a federally chartered and stockholder-owned corporation
organized and existing under the Federal National Mortgage Association Charter
Act, 12 U.S.C. ss. 1716 et seq. It is the largest investor in home mortgage
loans in the United States. Fannie Mae originally was established in 1938, as
a United States government agency to provide supplemental liquidity to the
mortgage market and was transformed into a stockholder-owned and privately
managed corporation by legislation enacted in 1968. Fannie Mae provides funds
to the mortgage market by purchasing mortgage loans from lenders, thereby
replenishing their funds for additional lending. Fannie Mae acquires funds to
purchase loans from many capital market investors that ordinarily may not
invest in mortgage loans, thereby expanding the total amount of funds
available for housing. Operating nationwide, Fannie Mae helps to redistribute
mortgage funds from capital-surplus to capital-short areas. Fannie Mae also
issues mortgaged-backed securities. Fannie Mae receives guaranty fees for its
guaranty of timely payment of principal of and interest on mortgaged-backed
securities. Fannie Mae issues mortgaged-backed securities primarily in
exchange for pools of mortgage loans from lenders. The issuance of
mortgaged-backed securities enables Fannie Mae to further its statutory
purpose of increasing the liquidity of residential mortgage loans.
Fannie Mae prepares an information statement annually which describes
Fannie Mae, its business and operations and contains Fannie Mae's audited
financial statements. From time to time Fannie Mae prepares supplements to its
information statement which include certain unaudited financial data and other
information concerning the business and operations of Fannie Mae. These
documents can be obtained without charge from Investor Relations, Fannie Mae,
3900 Wisconsin Avenue, N.W., Washington, D.C. 20016. Fannie Mae is not subject
to the periodic reporting requirements of the Exchange Act.
The Federal Home Loan Mortgage Corporation
The FHLMC is a publicly held government-sponsored enterprise created
on July 24, 1970 pursuant to the Federal Home Loan Mortgage Corporation Act,
Title III of the Emergency Home Finance Act of 1970, as amended. Freddie Mac's
statutory mission is to provide stability in the secondary market for home
mortgages, to respond appropriately to the private capital market and to
provide ongoing assistance to the secondary market for home mortgages
(including mortgages secured by housing for low-and moderate-income families
involving a reasonable economic return to Freddie Mac) by increasing the
liquidity of mortgage investments and improving the distribution of investment
capital available for home mortgage financing. The principal activity of
Freddie Mac consists of the purchase of first lien, conventional, residential
mortgages and participation interests in such mortgages from mortgage lending
institutions and the resale of the mortgages so purchased in the form of
guaranteed mortgage securities. Freddie Mac generally matches and finances its
purchases or mortgages with sales of guaranteed securities. Mortgages retained
by Freddie Mac are financed with short-and long-term debt, cash temporarily
held pending disbursement to security holders, and equity capital.
Freddie Mac prepares an information statement annually which
describes Freddie Mac, its business and operations and contains Freddie Mac's
audited financial statements. From time to time Freddie Mac prepares
supplements to its information statement which include certain unaudited
financial data and other information concerning the business and operations of
Freddie Mac. These documents can be obtained from Freddie Mac by writing or
calling Freddie Mac's Investor Inquiry Department at 8200 Jones Branch Drive,
McLean, Virginia 22102. Freddie Mac recently announced that it will comply
with subject to the periodic reporting requirements of the Exchange Act.
The Student Loan Marketing Association
The Student Loan Marketing Association ("Sallie Mae") is a
stockholder-owned corporation established by the 1972 amendments to the Higher
Education Act of 1965, as amended, to provide liquidity, primarily through
secondary market and warehousing activities, for lenders participating in the
Federal Family Education Loan (FFEL) program and the Health Education
Assistance Loan Program. Under the Higher Education Act, Sallie Mae is
authorized to purchase, warehouse, sell and offer participations or pooled
interests in, or otherwise deal in, student loans, including, but not limited
to, loans insured under the FFEL program, and to make commitments for any of
the foregoing. Sallie Mae is also authorized to buy, sell, hold, underwrite
and otherwise deal in obligations of eligible lenders, if such obligations are
issued by such eligible lender for the purpose of making or purchasing
federally guaranteed student loans under the Higher Education Act. As a
federally chartered corporation, Sallie Mae's structure and operational
authorities are subject to revision by amendments to the Higher Education Act
of other federal enactments.
Sallie Mae prepares an information statement annually which describes
Sallie Mae, its business and operations and contains Sallie Mae's audited
financial statements. From time to time Sallie Mae prepares supplements to its
information statement which include certain unaudited financial data and other
information concerning the business and operations of Sallie Mae. These
documents can be obtained without charge upon written request to the Corporate
and Investor Relations Division of Sallie Mae at 1050 Thomas Jefferson Street,
N.W., Washington, D.C. 20007. Sallie Mae is not subject to the periodic
reporting requirements of the Exchange Act.
The Resolution Funding Corporation
The Resolution Funding Corporation is a mixed-ownership government
corporation established by Title V of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (the "FIRRE Act"). The sole purpose of
the Resolution Funding Corporation is to provide financing for the Resolution
Trust Corporation. The Resolution Funding Corporation is to be dissolved, as
soon as practicable, after the maturity and full payment of all obligations
issued by it. The Resolution Funding Corporation is subject to the general
oversight and direction of the Oversight Board, which is comprised of the
Secretary of the Treasury, the Chairman of the Federal Reserve Board of
Governors, the Secretary of Housing and Urban Development and two independent
members from different political parties to be appointed by the President with
the advice and consent of the Senate. The day-to-day operations of the
Resolution Funding Corporation are under the management of a three-member
Directorate comprised of the Director of the Office of Finance of the Federal
Home Loan Banks and two members selected by the Oversight Board from among the
presidents of twelve Federal Home Loan Banks.
The Resolution Trust Corporation was established by the FIRRE Act to
manage and resolve cases involving failed savings and loan institutions
pursuant to policies established by the Oversight Board. The Resolution Trust
Corporation manages and resolves cases for which a receiver or conservator was
appointed between January 1, 1989 through August 9, 1992. The Resolution Trust
Corporation is authorized to issue nonvoting capital certificates to
Resolution Funding Corporation in exchange for the funds transferred from the
Resolution Funding Corporation to the Resolution Trust Corporation. The
Resolution Trust Corporation will terminate on or before December 31, 1996.
The FIRRE Act limits the aggregate principal amount of interest bearing
obligations which may be issued by the Resolution Funding Corporation to $30
billion, which amount of obligations was issued in 1989. Pursuant to the FIRRE
Act, the net proceeds of these obligations are used to purchase nonvoting
capital certificates issued by the Resolution Trust Corporation or to retire
previously issued Resolution Funding Corporation obligations.
Information concerning Resolution Funding Corporation may be obtained
from the Resolution Funding Corporation, Suite 850, 655 Fifteenth Street,
N.W., Washington, D.C. 20005. Resolution Funding Corporation is not subject to
the periodic reporting requirements of the Exchange Act.
The Federal Home Loan Banks
The Federal Home Loan Banks constitute a system of twelve federally
chartered corporations. The mission of each Federal Home Loan Bank is to
enhance the availability of residential mortgage credit by providing a readily
available, low-cost source of funds to its member institutions. A primary
source of funds for the Federal Home Loan Banks is the proceeds from the sale
to the public of debt instruments issued by the Federal Housing Finance Board,
which are the joint and several obligations of all of the Federal Home Loan
Banks. The Federal Home Loan Banks are supervised and regulated by the Federal
Housing Finance Board, which is an independent federal agency in the executive
branch of the United States government, but obligations of the Federal Home
Loan Banks are not obligations of the United States government.
The Federal Home Loan Bank System produces annual and quarterly
financial reports in connection with the original offering and issuance by the
Federal Housing Finance Board of consolidated bonds and consolidated notes of
the Federal Home Loan Banks. Questions regarding the Federal Home Loan Banks
Combined Financial Statement should be directed to the Deputy Director,
Financial Reporting and Operations Divisions, Federal Housing Finance Board,
1777 F Street, N.W., Washington, D.C. 20006. Copies of the Financial Reports
will be furnished upon request to the Capital Markets Divisions, Office of
Finance.
Tennessee Valley Authority
TVA is a wholly owned corporate agency and instrumentality of the
United States of America established pursuant to the Tennessee Valley
Authority Act of 1933, as amended. TVA's objective is to develop the resources
of the Tennessee Valley region in order to strengthen the regional and
national economy and the national defense. The programs of TVA consist of
power and nonpower programs. [For the fiscal year ending September 30, 1994,
TVA received $140 million in congressional appropriations from the federal
government for the nonpower programs.] The power program is required to be
self-supporting from revenues it produces. The TVA Act authorizes TVA to issue
evidences of indebtedness that may only be used to finance its power program.
TVA prepares an information statement annually which describes TVA,
its business and operations and contains TVA's audited financial statements.
From time to time TVA prepares supplements to its information statement which
include certain unaudited financial data and other information concerning the
business and operations of TVA. These documents can be obtained upon written
request directed to Tennessee Valley Authority, 400 West Summit Hill Drive,
Knoxville, Tennessee 37902, Attention: Vice President and Treasurer.
Federal Farm Credit Banks
The Farm Credit System is a nationwide system of lending institutions
and affiliated service and other entities. Through its banks and related
associations, the Farm Credit System provides credit and related services to
farmers, ranchers, producers and harvesters of aquatic products, rural
homeowners, certain farm-related businesses, agricultural and aquatic
cooperatives and rural utilities. System institutions are federally chartered
under the Farm Credit Act of 1971, as amended, and are subject to regulation
by a Federal agency, the Farm Credit Administration. The Farm Credit Banks and
associations are not commonly owned or controlled. They are cooperatively
owned, directly or indirectly, by their respective borrowers. Unlike
commercial banks and other financial institutions that lead to the
agricultural sector in addition to other sectors of the economy, under the
Farm Credit Act the Farm Credit System institutions are restricted solely to
making loans to qualified borrowers in the agricultural sector and to certain
related businesses. Moreover, the Farm Credit System is required to make
credit and other services available in all areas of the nation. In order to
fulfill its broad statutory mandate, the Farm Credit System maintains lending
units in all 50 states and the Commonwealth of Puerto Rico.
The Farm Credit System obtains funds for its lending operations
primarily from the sale of debt securities issued under Section 4.2(d) of the
Farm Credit Act ("Systemwide Debt Securities"). The Farm Credit Banks are
jointly and severally liable on all Systemwide Debt Securities. Systemwide
Debt Securities are issued by the Farm Credit Banks through the Federal Farm
Credit Banks Funding Corporation, as agent for the Farm Credit Banks. Each
Farm Credit Bank determines its participation in each issue of Systemwide Debt
Securities based on its funding and operating requirements, subject to the
availability of eligible collateral, to determinations by the Funding
Corporation as to conditions of participation and terms of each issuance, and
to Farm Credit Administration approval.
Important information regarding the Farm Credit Banks and the Farm
Credit System, including combined financial information, is contained in
disclosure information made available by the Farm Credit Banks Funding
Corporation. This information consists of the most recent Farm Credit System
annual information statement and any quarterly information statements issued
subsequent thereto and certain press releases issued from time to time by the
Funding Corporation. Such information and the Farm Credit System Annual Report
to Investors for the current and two preceding fiscal years are available for
inspection at the Federal Farm Credit Banks Funding Corporation, Investment
Banking Services Department, 10 Exchange Place, Suite 1401, Jersey City, New
Jersey 07302. Upon request, the Farm Credit Banks Funding Corporation will
furnish, without charge, copies of the above information.
Contractual and Statutory Restrictions. A GSE issuer and the related
Underlying Securities may be subject to contractual and statutory restrictions
which may provide some protection to securityholders against the occurrence or
effects of specified events. Unless otherwise specified in the related
prospectus supplement, each GSE is limited to the activities as will promote
its statutory purposes as set forth in the publicly available information with
respect to the issuer. See "Description of the Deposited Assets--Publicly
Available Information" in the related prospectus supplement.
Neither the United States nor any agency thereof is obligated to
finance any GSE issuer's operations or to assist a GSE issuer in any manner.
Prospective purchasers should consult the publicly available information with
respect to each GSE issuer for a more detailed description of the regulatory
and statutory restrictions on the related GSE's activities.
Events of Default. Underlying Securities issued by a GSE issuer may
provide that any one of a number of specified events will constitute an event
of default with respect to the securities issued thereunder. Events of default
typically include the following or variations thereof:
o failure by the issuer to make a scheduled payment of interest or
principal on the securities at the time required (subject to any
specified grace period) or to redeem any of the securities when
required (subject to any specified grace period);
o breach by the issuer of a representation or warranty or failure
by the issuer to observe or perform any covenant, agreement or
condition contained in the indenture or authorizing legislation
or regulation, as the case may be, which breach or failure is
materially adverse to security holders and continues for a
specified period after notice thereof is given to the issuer by
the fiscal agent or the holders of not less than a specified
percentage of the outstanding securities; or
o the occurrence of certain events of insolvency or bankruptcy
with respect to the GSE issuer.
GTCs. As specified in the related prospectus supplement, a trust may
include one or more GTCs. GTCs are Certificates evidencing undivided
fractional interests in a trust, the assets of which consist of promissory
notes (the "GTC Notes"), payable in U.S. dollars, of a certain foreign
government, backed a full faith and credit guaranty issued by the United
States of America, acting through the Defense Security Assistance Agency of
the Department of Defense, of the due and punctual payment of 90% of all
payments of principal and interest due on the GTC Notes and a security
interest in collateral, consisting of non-callable securities issued or
guaranteed by the United States government thereof, sufficient to pay the
remaining 10% of all payments of principal and interest due on the GTC Notes.
Treasury Securities. Treasury Securities are securities issued or
guaranteed by the United States of America or by any of its agencies if the
full faith and credit of the United States of America is pledged for their
payment.
Foreign Government Securities. As specified in the applicable
prospectus supplement, Foreign Government Securities are obligations
guaranteed or issued by one or more foreign governments or any political
subdivision or agency or instrumentality thereof which has offered debt
securities in the United States pursuant to a registration statement filed
with the SEC containing information required by Schedule B of the Securities
Act ("Schedule B"), which qualifies as a "seasoned" issuer under Commission
practice and which issuer or guarantor the Depositor reasonably believes
(based on publicly available information) is eligible to use Schedule B as of
the time of any offering of certificates hereunder. The Foreign Government
Securities may include, but shall not be limited to obligations of any or all
of the following Foreign Governments (which may include, but shall not be
limited to, obligations guaranteed by the following): Austria, Australia,
Canada, Canadian Provinces, Denmark, Finland, France, Germany, Ireland, Japan,
Norway, Italy, Spain, Sweden and the United Kingdom.
General. Generally, Foreign Government Securities are not issued
pursuant to an indenture, and no trustee is provided with respect to Foreign
Government Securities. Generally, there will be a fiscal agent (each, a
"Foreign Fiscal Agent") for the Foreign Government Issuer with respect to the
Foreign Government Security whose actions will be governed by a fiscal agency
agreement. A Foreign Fiscal Agent does not have the same responsibilities or
duties to act on behalf of the holders of a Foreign Government's debt
securities as would a trustee.
Contractual Restrictions. There will generally be few, if any,
contractual restrictions on the foreign government issuers or foreign
government guarantors in respect of the Foreign Government Securities. The
Foreign Government Securities by their terms and provisions may, however,
restrict certain actions of the related Foreign Governments and may also
require, among other things, the creation or maintenance of reserves or a
sinking fund or contain an undertaking or pledge of the Foreign Government not
to encumber its assets to secure any other external indebtedness without
providing like security for the related Foreign Government Securities. Certain
actions in respect of the debt securities of foreign governments may also be
subject to proper executive, legislative or administrative approval.
The applicable prospectus supplement used to offer any series of
Certificates will describe material covenants or undertakings in relation to
any Concentrated Underlying Security and, as applicable, will describe
material covenants or undertakings which are common to any pool of Underlying
Securities. There can be no assurance that any such provision will protect the
trust as a holder of the Underlying Securities against losses. In the event of
a breach of any such covenant or undertaking it may not be possible to force
any action in respect of the Underlying Securities or to obtain an enforceable
judgment against a foreign government.
Events of Default. Debt securities issued by Foreign Governments
generally provide that any one of a number of specified events will constitute
an event of default with respect to such securities. Such events of default
typically include the following or variations thereof:
o failure by the issuer to pay an installment of interest or
principal on the securities at the time required (subject to any
specified grace period) or to redeem any of the securities when
required (subject to any specified grace period);
o failure by the issuer to observe or perform any covenant,
agreement, or condition contained in the securities which
failure is materially adverse to security holders and continues
for a specified period after notice thereof; and
o the declaration by such government of a moratorium on the
payment of interest or principal in respect of external
indebtedness.
Multilateral Bank Issuers. As specified in the related prospectus
supplement, a trust may include obligations of one or more Multilateral Bank
Issuers. A "Multilateral Bank Issuer" means the International Bank for
Reconstruction and Development, the Inter-American Development Bank, the Asian
Development Bank, the African Development Bank, the International Finance
Corporation, the European Bank for Reconstruction and Development, or another
multilateral development bank that has a comparable volume of outstanding
securities and files with the SEC comparable publicly available information,
and the securities of which are exempted from registration under the
Securities Act.
Principal Economic Terms of Underlying Securities
Reference is made to the applicable prospectus supplement in this
prospectus for a description of the following terms, as applicable, with
respect to any Concentrated Underlying Security: (i) the title and series of
such Underlying Securities, the aggregate principal amount, denomination and
form thereof; (ii) whether such securities are senior or subordinated to any
other obligations of the issuer of the Underlying Securities; (iii) whether
any of the obligations are secured or unsecured and the nature of any
collateral; (iv) the limit, if any, upon the aggregate principal amount of
such debt securities; (v) the dates on which, or the range of dates within
which, the principal of (and premium, if any, on) such debt securities will be
payable; (vi) the rate or rates or the method of determination thereof, at
which such Underlying Securities will bear interest, if any ("Underlying
Securities Rate"); (vii) the date or dates between which such interest will
accrue ("Underlying Securities Interest Accrual Periods"); (viii) the dates on
which such interest will be payable ("Underlying Securities Payment Dates");
(ix) the obligation, if any, of the issuer of the Underlying Securities to
redeem the Outstanding Debt Securities pursuant to any sinking fund or
analogous provisions, or at the option of a holder thereof, and the periods
within which or the dates on which, the prices at which and the terms and
conditions upon which such debt securities may be redeemed or repurchased, in
whole or in part, pursuant to such obligation; (x) the periods within which or
the dates on which, the prices at which and the terms and conditions upon
which such debt securities may be redeemed, if any, in whole or in part, at
the option of the issuer of the Underlying Securities; (xi) whether the
Underlying Securities were issued at a price lower than the principal amount
thereof; (xii) if other than United States dollars, the foreign or composite
currency in which such debt securities are denominated, or in which payment of
the principal of (and premium, if any) or any interest on such Underlying
Securities will be made (the "Underlying Securities Currency"), and the
circumstances, if any, when such currency of payment may be changed; (xiii)
material events of default or restrictive covenants provided for with respect
to such Underlying Securities; (xiv) the rating thereof, if any; and (xv) any
other material terms of such Underlying Securities.
With respect to a trust comprised of a pool of Underlying Securities
in which there are no Concentrated Underlying Securities, the related
prospectus supplement will describe the composition of the Underlying
Securities pool as of the Cut-off Date, certain material events of default or
restrictive covenants common to the Underlying Securities, and, on an
aggregate, percentage or weighted average basis, as applicable, the
characteristics of the pool with respect to the terms set forth in (i), (ii),
(iii), (v), (vi), (vii), (viii), (ix), (x),(xi), (xiii) and (xv) and of the
preceding paragraph and any other material terms regarding such pool of
securities.
Publicly Available Information
With respect to each Concentrated Underlying Security the applicable
prospectus supplement will disclose the identity of the applicable obligor and
the Underlying Securities Trustee, if applicable, and will describe the
existence and type of certain information that is made publicly available by
each obligor regarding such Underlying Security or Underlying Securities and
will disclose where and how prospective purchasers of the certificates may
obtain publicly available information with respect to each obligor. Except in
the case of most GSE issuers, publicly available information will typically
consist of the quarterly and annual reports filed under the Exchange Act by
the issuer with, and which are available from, the SEC. Such information will
typically consist of the obligor's annual report, which contains financial
statements or similar financial information, and can be obtained from the SEC,
if so specified in the applicable prospectus supplement, or from the office of
the obligor identified in the related prospectus supplement.
In the case of a GSE issuer whose obligations are not supported by
the full faith and credit of the U.S. government, publicly available
information will typically consist of information comparable to that required
of Exchange Act reporting entities. The precise nature of such publicly
available information and where and how it may be obtained with respect to any
given GSE issuer will vary, and, as described above, will be set forth in the
applicable prospectus supplement.
If an issuer of Concentrated Underlying Securities ceases to file
periodic reports under the Exchange Act, or make available comparable reports
in the case of a GSE issuer, the Depositor, on behalf of the related trust,
will continue to be subject to the reporting requirements of the Exchange Act
(although certain information with respect to such issuer may be unavailable).
In the event that an issuer of a Concentrated Underlying Security
underlying a series of trust certificates ceases to file periodic reports
required under the Exchange Act, or make available comparable reports in the
case of a GSE issuer, the Depositor shall within a reasonable period of time
instruct the trustee to either (a) distribute within a reasonable period of
time such Underlying Security or Securities to the certificateholders or (b)
sell within a reasonable period of time the Underlying Securities and
distribute the proceeds to the certificateholders, pursuant to the procedures
set forth in the related prospectus supplement applicable to defaults on the
Underlying Securities. For the purpose of this subsection, with respect to
Equipment Trust Certificates, the applicable obligor and issuer refer, as
applicable, to the ETC Credit Entity, and Underlying Securities and
Concentrated Underlying Securities refer, as applicable, to the obligations of
the ETC Credit Entity.
Other Deposited Assets
Generally. The Depositor may also deposit into a given trust, or the
trustee on behalf of the certificateholders of a trust may enter into an
agreement constituting or providing for the purchase of, to the extent
described in the related prospectus supplement, certain assets related or
incidental to one or more of such Underlying Securities or to some other asset
deposited in the related trust, including hedging contracts and other similar
arrangements (such as puts, calls, interest rate swaps, credit swaps, currency
swaps, floors, caps and collars), cash and assets ancillary or incidental to
the foregoing or to the Underlying Securities (including assets obtained
through foreclosure or in settlement of claims with respect thereto), credit
derivatives and direct obligations of the United States (all such assets for
any given series, the "Other Deposited Assets"). The applicable prospectus
supplement will, to the extent appropriate, contain market standard disclosure
with respect to the foregoing assets.
Unless otherwise specified in the related prospectus supplement, the
Deposited Assets for a given series of certificates and the related trust will
not constitute Deposited Assets for any other series of certificates and the
related trust and the certificates of each class of a given series possess an
equal and ratable undivided ownership interest in such Deposited Assets. The
applicable prospectus supplement may, however, specify that certain assets
constituting a part of the Deposited Assets 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 Deposited Assets.
Credit Derivatives. If so provided in the related prospectus
supplement, a trust issuing a series of certificates may enter into a credit
derivative arrangement, such as a credit default swap agreement, as either (i)
a provider of credit protection, or (ii) a purchaser of credit protection.
As a provider of credit protection, under such a swap agreement the
related trust would agree, in return for a fee or other consideration, to
assume the default or other credit risk with respect to one or more specified
entities (each, a "Reference Entity"). Upon the occurrence of a default or
other objective credit event with respect to such Reference Entity, the trust
would suffer the resulting loss pursuant to (i) a provision requiring the
trust to pay the counterparty the difference between the face amount of a
Reference Security and its then current market value as determined by
independent quotations (which payment would be made from the proceeds of the
sale of the Underlying Securities), (ii) a provision requiring the trust to
deliver the Underlying Securities or the proceeds of such Underlying
Securities to the counterparty in exchange for Reference Securities, which
would then either be distributed in kind to certificateholders or sold (and
the proceeds distributed) or (iii) other provisions set forth in the related
prospectus supplement with similar effects. Similarly, if so provided in the
related prospectus supplement, a trust may enter into a put option arrangement
pursuant to which the trust will agree to purchase a Reference Security for a
predetermined price, thus assuming the risk of loss thereon.
As used herein, "Reference Security" refers to an obligation of a
Reference Entity or other entity, which obligation meets the criteria set
forth in the related prospectus supplement. Reference Securities will be of
the same types as the Underlying Securities described herein. The related
prospectus supplement will include information regarding Reference Securities
and the issuer thereof that is analogous to that provided with respect to
Underlying Securities.
As a purchaser of credit protection, under such a swap agreement the
related swap counterparty would agree, in return for a fee or other
consideration, to assume the default or other credit risk with respect to one
or more Reference Entities. Upon the occurrence of a default or other
objective credit event with respect to such Reference Entities, the related
swap counterparty would suffer the resulting loss in an amount equal to all or
a portion of losses the trust would have otherwise sustained upon the
occurrence of such defaults or other objective credit events, or such other
amounts as may be agreed to between the Trust and the related swap
counterparty.
Credit Support
As specified in the applicable prospectus supplement for a given
series of certificates, the trust for any series of certificates may include,
or the certificateholders of such series (or any class or group of classes
within such series) may have the benefit of, credit support for any class or
group of classes within such series (the "Credit Support"). Credit Support may
be provided by any combination of the following means described below or any
other means described in the applicable prospectus supplement. The applicable
prospectus supplement will set forth whether the trust for any class or group
of classes of certificates contains, or the certificateholders of such
certificates have the benefit of, any Credit Support and, if so, the amount,
type and other relevant terms of such arrangement with respect to any such
class or classes and certain information with respect to the obligors of each
such transaction, including financial information with respect to any obligor
providing Credit Support for 10% or more of the aggregate principal amount of
such class or classes unless such obligor is otherwise subject to the
informational requirements of the Exchange Act.
Subordination. As discussed below under "--Collections," the rights
of the certificateholders of any given class within a series of certificates
to receive collections from the trust for such series and any Credit Support
obtained for the benefit of the certificateholders of such series (or classes
within such series) may be subordinated to the rights of the
certificateholders of one or more other classes of such series to the extent
described in the related prospectus supplement. Such subordination accordingly
provides some additional Credit Support to certificateholders of those other
classes. For example, if losses are realized during a given period on the
Underlying Securities relating to a series of certificates and collections
received on such Underlying Securities, together with amounts collected under
any related Other Deposited Assets or Credit Support, are insufficient to make
all required distributions on the certificates of such series on the next
Distribution Date, those realized losses would be allocated to the
certificateholders of any class of any such series that is subordinated to
another class, to the extent and in the manner provided in the related
prospectus supplement. In addition, if so provided in the applicable
prospectus supplement, certain amounts otherwise payable to certificateholders
of any class that is subordinated to another class may be required to be
deposited into a reserve account. Amounts held in any reserve account may be
applied as described below under "--Reserve Accounts" and in the related
prospectus supplement.
If so provided in the related prospectus supplement, the Credit
Support for any series or class of certificates may include, in addition to
the subordination of certain classes of such series and the establishment of a
reserve account, any of the other forms of Credit Support described below. Any
such other forms of Credit Support that are solely for the benefit of a given
class will be limited to the extent necessary to make required distributions
to the certificateholders of such class or as otherwise specified in the
related prospectus supplement. In addition, if so provided in the applicable
prospectus supplement, the obligor of any other forms of Credit Support may be
reimbursed for amounts paid pursuant to such Credit Support out of amounts
otherwise payable to one or more of the classes of the certificates of such
series.
Letter of Credit; Surety Bond. The certificateholders of any series
(or class or group of classes of certificates within such series) may, if
specified in the applicable prospectus supplement, have the benefit of a
letter or letters of credit issued by a bank or a surety bond or bonds issued
by a surety company. In either case, the trustee or such other person
specified in the applicable prospectus supplement will use its reasonable
efforts to cause the letter of credit or the surety bond, as the case may be,
to be obtained, to be kept in full force and effect (unless coverage
thereunder has been exhausted through payment of claims) and to pay timely the
fees or premiums therefor unless, as described in the related prospectus
supplement, the payment of such fees or premiums is otherwise provided for.
The trustee or such other person specified in the applicable prospectus
supplement will make or cause to be made draws under the letter of credit or
the surety bond, as the case may be, under the circumstances and to cover the
amounts specified in the applicable prospectus supplement. Any amounts
otherwise available under the letter of credit or the surety bond will be
reduced to the extent of any prior unreimbursed draws thereunder. The
applicable prospectus supplement will provide the manner, priority and source
of funds by which any such draws are to be repaid.
Unless otherwise specified in the applicable prospectus supplement,
in the event that the letter of credit bank or the surety, as applicable,
ceases to satisfy any credit rating or other applicable requirements specified
in the related prospectus supplement, the trustee or such other person
specified in the applicable prospectus supplement will use its reasonable
efforts to obtain or cause to be obtained a substitute letter of credit or
surety bond, as applicable, or other form of credit enhancement providing
similar protection, that meets such requirements and provides the same
coverage to the extent available for the same cost. There can be no assurance
that any letter of credit bank or any surety, as applicable, will continue to
satisfy such requirements or that any such substitute letter of credit, surety
bond or similar credit enhancement will be available providing equivalent
coverage for the same cost. To the extent not so available, the Credit Support
otherwise provided by the letter of credit or the surety bond (or similar
credit enhancement) may be reduced to the level otherwise available for the
same cost as the original letter of credit or surety bond.
Reserve Accounts. If so provided in the related prospectus
supplement, the trustee or such other person specified in the prospectus
supplement will deposit or cause to be deposited into an account maintained
with an eligible institution (which may be the trustee) (a "reserve account")
any combination of cash or permitted investments in specified amounts, which
will be applied and maintained in the manner and under the conditions
specified in such prospectus supplement. In the alternative or in addition to
such deposit, a reserve account may be funded through application of a portion
of collections received on the Underlying Securities for a given series of
certificates, in the manner and priority specified in the applicable
prospectus supplement. Amounts deposited in such reserve account may be
distributed to certificateholders of such class or group of classes within
such series, or may be used for other purposes, in the manner and to the
extent provided in the related prospectus supplement. Amounts deposited in any
reserve account will be invested in certain permitted investments by, or at
the direction of, the trustee, the Depositor or such other person named in the
related prospectus supplement.
Collections
The trust agreement will establish procedures by which the trustee or
such other person specified in the prospectus supplement is obligated to
administer the related Deposited Assets. This will include making collections
of all payments made on the Deposited Assets and depositing the collections
from time to time prior to any applicable Distribution Date into a segregated
account maintained or controlled by the trustee for the benefit of such series
(each a "certificate account"). An administrative agent, if any is appointed
pursuant to the applicable prospectus supplement, will direct the trustee, and
otherwise the trustee will make all determinations, as to the appropriate
application of such collections and other amounts available for distribution
to the payment of any administrative or collection expenses (such as the
administrative fee) and Credit Support-related ongoing fees (such as insurance
premiums, letter of credit fees or any required account deposits) and to the
payment of amounts then due and owing on the certificates of such series (and
classes within such series), all in the manner and priorities described in the
related prospectus supplement. The applicable prospectus supplement will
specify the collection periods, if applicable, and Distribution Dates for a
given series of certificates and the particular requirements relating to the
segregation and investment of collections received on the Deposited Assets
during a given collection period or on or by certain specified dates. Amounts
received from the Deposited Assets obtained for the benefit of
certificateholders for a particular series or class of certificates over a
specified period may not be sufficient, after payment of all prior expenses
and fees for such period, to pay amounts then due and owing to holders of such
certificates. The applicable prospectus supplement will also set forth the
manner and priority by which any Realized Losses will be allocated among the
classes of any series of certificates, if applicable.
The relative priorities of distributions with respect to collections
from the assets of the trust assigned to classes of a given series of
certificates may permanently or temporarily change over time upon the
occurrence of certain circumstances specified in the applicable prospectus
supplement. Moreover, the applicable prospectus supplement may specify that
the relative distribution priority assigned to each class of a given series
for purposes of payments of certain amounts, such as principal, may be
different from the relative distribution priority assigned to each such class
for payments of other amounts, such as interest or premium.
DESCRIPTION OF THE TRUST AGREEMENT
General
The following summary of certain provisions of the trust agreement
and the certificates is not complete and is qualified in its entirety by
reference to the detailed provisions of the form of trust agreement filed as
an exhibit to the registration statement.
Assignment of Deposited Assets
At the time of issuance of any series of certificates, the Depositor
will cause (x) the Underlying Securities, (y) any Credit Support specified in
the prospectus supplement, and (z) any Other Deposited Assets specified in the
prospectus supplement (each a "Deposited Asset" and collectively, the
"Deposited Assets"), to be contributed to the related trustee, together with
all principal, premium (if any) and interest received by or on behalf of the
Depositor on or with respect to such Deposited Assets after the Cut-off Date
specified in the prospectus supplement (the "Cut-off Date"), other than any
Retained Interest. The trustee will, in consideration for the contribution of
the Deposited Assets to the Trust, and concurrently with such assignment,
deliver the certificates to the Depositor. Each Underlying Security will be
identified in a schedule appearing as an exhibit to the trust agreement. The
schedule will include certain statistical information with respect to the
Underlying Securities as of the Cut-off Date, and in the event any Underlying
Security is a Concentrated Underlying Security, the schedule will include, to
the extent applicable, information regarding the payment terms thereof, the
Retained Interest, if any, with respect thereto, the maturity or terms
thereof, the rating, if any, thereof and certain other information.
In addition, the Depositor will, with respect to each Deposited
Asset, deliver or cause to be delivered to the trustee (or to the custodian
hereinafter referred to) all documents necessary to transfer ownership of such
Deposited Asset to the trustee. The trustee (or such custodian) will review
the documents within such period as is permitted in the prospectus supplement,
and the trustee (or such custodian) will hold the documents in trust for the
benefit of the certificateholders.
With respect to the Underlying Securities specified in the applicable
prospectus supplement if and to the extent provided therein, if any document
is found to be missing or defective in any material respect, the trustee (or
such custodian) will immediately notify the administrative agent, if any, and
the Depositor, and the administrative agent, if any, and the trustee will
immediately notify the relevant Underlying Securities Issuer. If and to the
extent specified in the applicable prospectus supplement, the Underlying
Securities Issuer cannot cure such omission or defect within 60 days after
receipt of notice, the Underlying Securities Issuer will be obligated, within
90 days of receipt of notice, to repurchase the related Underlying Securities
from the trustee at the Purchase Price (as defined below) or provide a
substitute for the Underlying Security. There can be no assurance that an
Underlying Securities Issuer will fulfill this repurchase or substitution
obligation. Although the administrative agent, if any, or otherwise the
trustee is obligated to use its best efforts to enforce this obligation,
neither such administrative agent nor the Depositor will be obligated to
repurchase or substitute such Underlying Security if the Underlying Securities
Issuer defaults on its obligation to do so. Unless otherwise specified in the
related prospectus supplement, when applicable, this repurchase or
substitution obligation constitutes the sole remedy available to the
certificateholders or the trustee for omission of, or a material defect in, or
failure to provide, a constituent document.
Each of the Depositor and the administrative agent, if any, will make
certain representations and warranties regarding its authority to enter into,
and its ability to perform its obligations under, the trust agreement. Upon a
breach of any such representation of the Depositor or any such administrative
agent, as the case may be, which materially and adversely affects the
interests of the certificateholders, the Depositor or any such administrative
agent, respectively, will be obligated to cure the breach in all material
respects.
Collection and Other Administrative Procedures
General. With respect to any series of certificates the trustee or
such other person specified in the prospectus supplement directly or through
sub-administrative agents, will make reasonable efforts to collect all
scheduled payments under the Deposited Assets. The trustee will follow the
collection procedures, as it would follow with respect to comparable financial
assets that it held for its own account, provided that such procedures are
consistent with the trust agreement and any related instrument governing the
Deposited Assets (collectively, the "Deposited Assets Instruments") and
provided that, except as otherwise expressly set forth in the applicable
prospectus supplement, it shall not be required to expend or risk its own
funds or otherwise incur personal financial liability.
Sub-Administration. Any trustee or administrative agent may delegate
its obligations in respect of the Deposited Assets to third parties they deem
qualified to perform such obligations (each, a "Sub-Administrative Agent").
However, the trustee or administrative agent will remain obligated with
respect to such obligations under the trust agreement. Each Sub-Administrative
Agent will be required to perform the customary functions of an administrator
of comparable financial assets, including, if applicable, collecting payments
from obligors and remitting such collections to the trustee; maintaining
accounting records relating to the Deposited Assets, attempting to cure
defaults and delinquencies; and enforcing any other remedies with respect
thereto all as and to the extent provided in the applicable sub-administration
agreement.
The agreement between any administrative agent or trustee and a
Sub-Administrative Agent will be consistent with the terms of the trust
agreement and the assignment to the sub-administrator by itself will not
result in a withdrawal or downgrading of the rating of any class of
certificates issued pursuant to the trust agreement. Although each such
sub-administration agreement will be a contract solely between such
administrative agent and the Sub-Administrative Agent, the trust agreement
pursuant to which a series of certificates is issued will provide that, if for
any reason the administrative agent for the series of certificates is no
longer acting in such capacity, the trustee or any successor administrative
agent must recognize the Sub-Administrative Agent's rights and obligations
under the sub-administration agreement.
The administrative agent or trustee will be solely liable for all
fees owed by it to any Sub-Administrative Agent, irrespective of whether the
compensation of the administrative agent or trustee, as applicable, pursuant
to the trust agreement with respect to the particular series of certificates
is sufficient to pay such fees. However, a Sub-Administrative Agent may be
entitled to a Retained Interest in certain Deposited Assets to the extent
provided in the related prospectus supplement. Each Sub-Administrative Agent
will be reimbursed by the administrative agent, if any, or otherwise the
trustee for certain expenditures which it makes, generally to the same extent
the administrative agent or trustee, as applicable, would be reimbursed under
the terms of the trust agreement relating to such series. See "--Retained
Interest; Administrative Agent Compensation and Payment of Expenses."
The administrative agent or trustee may require any
Sub-Administrative Agent to agree to indemnify the administrative agent or
trustee, as applicable, for any liability or obligation sustained in
connection with any act or failure to act by the Sub-Administrative Agent.
Realization upon Defaulted Deposited Assets. Unless otherwise
specified in the applicable prospectus supplement, in the event of the
occurrence of (i) an Event of Default with respect to any Underlying Security
or (ii) an acceleration of the date of maturity of any Underlying Security in
connection with a default thereon, the Depositor shall take such action as is
set forth in the prospectus statement with respect to such default which steps
may include, without limitation, (i) instructing the Trustee to make a
distribution "in-kind" of the related Underlying Security to the
Certificateholders on a pro rata basis in proportion to their outstanding
Certificate Principal Balances, (ii) instructing the Trustee to direct the
Market Agent to sell such Underlying Security and distribute the proceeds of
such sale to the Certificateholders pro rata in accordance with their
respective Certificate Principal Balances, [or (iii) such other actions as may
be set forth in the applicable Prospectus Supplement.]
Unless otherwise provided in the applicable prospectus supplement, if
recovery on a defaulted Deposited Asset under any related Deposited Assets
Instrument is not available, the trustee will be obligated to follow or cause
to be followed normal practices and procedures as it deems necessary or
advisable to realize upon the defaulted Deposited Asset. However, except as
otherwise expressly provided in the applicable prospectus supplement, it shall
not be required to expend or risk its own funds or otherwise incur personal
financial liability. If the proceeds of any liquidation of the defaulted
Deposited Assets are less than [the amount of the termination payment due with
respect to such Deposited Asset] [the sum of (i) the outstanding principal
balance of the defaulted Deposited Asset, (ii) interest accrued but unpaid
thereon at the applicable interest rate and (iii) the aggregate amount of
expenses incurred by the administrative agent and the trustee in connection
with such proceedings to the extent reimbursable from the assets of the
related trust under the related trust agreement,] [the amount scheduled to be
paid but not received under the terms of any Deposited Asset] such trust will
realize a loss. Only if and to the extent provided in the applicable
prospectus supplement, the administrative agent or trustee, as so provided,
will be entitled to withdraw or cause to be withdrawn from the related
certificate account out of the net proceeds recovered on any defaulted
Underlying Security, prior to the distribution of such proceeds to
certificateholders, amounts representing its normal administrative
compensation on the Underlying Security, unreimbursed administrative expenses
incurred with respect to the Underlying Security and any unreimbursed advances
of delinquent payments made with respect to the Underlying Security.
Underlying Securities Reporting Failure. Unless otherwise provided in
the applicable prospectus supplement, in the event an issuer of an Underlying
Security, the outstanding principal balance of which exceeds ten percent (10%)
of the aggregate principal balance of the Underlying Securities ceases to file
periodic reports (to the extent such periodic reports are required to be filed
by such Underlying Securities Issuer under the Exchange Act), the Depositor
may instruct the Trustee to make a distribution "in-kind" of the related
Underlying Security or to take such other action as may be set forth in the
prospectus statement.
Other "In Kind" Distributions. In addition to "in kind" distributions
to Noteholders of defaulted Underlying Securities or Underlying Securities
with respect to which the Underlying Securities Issuer has failed to file
required reports, the Depositor may determine to make in kind distributions to
certificateholders under other circumstances as may be described in the
related Series Supplement.
Retained Interest; Administrative Agent Compensation and Payment of Expenses
The prospectus supplement for a series of certificates will specify
whether there will be any Retained Interest in the Underlying Securities, and,
if so, the owner thereof. A Retained Interest will be established on an
asset-by-asset basis and will be specified in an exhibit to the applicable
series supplement to the trust agreement. A Retained Interest in an Underlying
Security represents a specified interest therein. Payments in respect of the
Retained Interest will be deducted from payments on the Underlying Securities
as received and, in general, will not be deposited in the applicable
certificate account or become a part of the related trust. Unless otherwise
provided in the applicable prospectus supplement, any partial recovery of
interest on an Underlying Security, after deduction of all applicable
administration fees, will be allocated between the Retained Interest (if any)
and interest distributions to certificateholders on a pari passu basis.
The applicable prospectus supplement will specify the administrative
agent's, if any, and the trustee's compensation, and the source, manner and
priority of payment thereof, with respect to a given series of certificates.
If, and to the extent specified in the applicable prospectus
supplement, in addition to amounts payable to any Sub-Administrative Agent,
the administrative agent, if any, and otherwise the trustee will pay from its
compensation certain expenses incurred in connection with its administration
of the Deposited Assets, including, without limitation, payment of the fees
and disbursements of the trustee, if applicable, and independent accountants,
payment of expenses incurred in connection with distributions and reports to
certificateholders, and payment of any other expenses described in the related
prospectus supplement.
Advances in Respect of Delinquencies
Unless otherwise specified in the applicable prospectus supplement,
the administrative agent or the trustee will have no obligation to make any
advances with respect to collections on the Underlying Securities or in favor
of the certificateholders of the related series of certificates. However, to
the extent provided in the applicable prospectus supplement, the
administrative agent or the trustee will advance on or before each
Distribution Date its own funds or funds held in the certificate account or
the reserve account for such series that are not part of the funds available
for distribution for such Distribution Date. The amount of funds advanced will
equal the aggregate payments of principal, premium (if any) and interest (net
of related administration fees and any Retained Interest) with respect to the
Underlying Securities that were due during the related Collection Period (as
defined in the related prospectus supplement) and were delinquent on the
related Determination Date, subject to (i) any such administrative agent's or
trustee's good faith determination that such advances will be reimbursable
from Related Proceeds (as defined below) and (ii) such other conditions as may
be specified in the related prospectus supplement.
Advances are intended to maintain a regular flow of scheduled
interest, premium (if any) and principal payments to holders of the class or
classes of certificates entitled thereto, rather than to guarantee or insure
against losses. Unless otherwise provided in the related prospectus
supplement, advances of an administrative agent's or trustee's funds will be
reimbursable only out of related recoveries on the Deposited Assets for such
series with respect to which such advances were made ("Related Proceeds");
provided, however, that any advance will be reimbursable from any amounts in
the certificate account for the series to the extent that the administrative
agent or trustee shall determine, in its sole judgment, that the advance (a
"Nonrecoverable Advance") is not ultimately recoverable from Related Proceeds.
If advances have been made by the administrative agent or trustee from excess
funds in the certificate account for any series, the administrative agent or
trustee will replace the funds in such certificate account on any future
Distribution Date to the extent that funds in the certificate account on the
Distribution Date are less than payments required to be made to
certificateholders on such date. If so specified in the related prospectus
supplement, the obligations, if any, of an administrative agent or trustee to
make advances may be secured by a cash advance reserve fund or a surety bond.
If applicable, information regarding the characteristics of, and the identity
of any obligor on, any such surety bond, will be set forth in the related
prospectus supplement.
Certain Matters Regarding the Administrative Agent and the Depositor
An administrative agent, if any, for each series of certificates
under the trust agreement will be named in the related prospectus supplement.
The entity serving as administrative agent for any such series may be the
trustee, the Depositor, an affiliate of either thereof, the Underlying
Securities Issuer, any provider of Credit Support or any Other Deposited Asset
or any third party and may have other normal business relationships with the
trustee, the Depositor, their affiliates or the Underlying Securities Issuer.
The trust agreement will provide that an administrative agent may
resign from its obligations and duties under the trust agreement with respect
to any series of certificates only if such resignation, and the appointment of
a successor, will not result in a withdrawal or downgrading of the rating of
any class of certificates of such series, or upon a determination that its
duties under the trust agreement with respect to such series are no longer
permissible under applicable law. No resignation will become effective until
the trustee or a successor has assumed the administrative agent's obligations
and duties under the trust agreement with respect to such series.
The trust agreement will further provide that neither an
administrative agent, the Depositor nor any member, director, officer,
employee, or agent of the administrative agent or the Depositor will incur any
liability to the related trust or certificateholders for any action taken, or
for refraining from taking any action, in good faith pursuant to the trust
agreement or for errors in judgment; provided, however, that none of the
administrative agent, the Depositor nor any such person will be protected
against any liability that would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
thereunder or by reason of reckless disregard of obligations and duties
thereunder. The trust agreement will further provide that, unless otherwise
provided in the applicable series supplement thereto, an administrative agent,
the Depositor and any member, director, officer, employee or agent of the
administrative agent or the Depositor will be entitled to indemnification by
the related trust and will be held harmless against any loss, liability or
expense incurred in connection with any legal action relating to the trust
agreement or the certificates, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties thereunder or by reason of reckless disregard of
obligations and duties thereunder. In addition, the trust agreement will
provide that neither an administrative agent nor the Depositor will be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to their respective responsibilities under the trust agreement or
which in its opinion may cause it to incur any expense or liability. Each of
the administrative agent or the Depositor may, however, in its discretion
undertake any 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 certificateholders thereunder. The applicable prospectus
supplement will describe how the legal expenses and costs of such action and
any liability resulting therefrom will be allocated.
Any person into which an administrative agent may be merged or
consolidated, or any person resulting from any merger or consolidation to
which an administrative agent is a part, or any person succeeding to the
business of an administrative agent, will be the successor of the
administrative agent under the trust agreement with respect to the
certificates of any given series.
Administrative Agent Termination Events; Rights Upon Administrative Agent
Termination Event
Unless otherwise provided in the related prospectus supplement,
"Administrative Agent Termination Events" under the trust agreement with
respect to any given series of certificates will consist of the following:
o any failure by an administrative agent to remit to the trustee
any funds in respect of collections on the Deposited Assets as
required under the trust agreement, that continues unremedied
for five days after the giving of written notice of such failure
to the administrative agent by the trustee or the Depositor, or
to the administrative agent, the Depositor and the trustee by
the holders of such certificates evidencing not less than 25% of
the Voting Rights (as defined below);
o any failure by an administrative agent duly to observe or
perform in any material respect any of its other covenants or
obligations under the trust agreement with respect to such
series which continues unremedied for thirty days after the
giving of written notice of such failure to the administrative
agent by the trustee or the Depositor, or to the administrative
agent, the Depositor and the trustee by the holders of such
certificates evidencing not less than 25% of the Voting Rights;
and
o specified events of insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings and certain
actions by or on behalf of an administrative agent indicating
its insolvency or inability to pay its obligations.
Any additional Administrative Agent Termination Events with respect to any
given series of certificates will be set forth in the applicable prospectus
supplement. In addition, the applicable prospectus supplement and the related
series supplement to the trust agreement will specify as to each matter
requiring the vote of holders of certificates of a class or group of classes
within a given series, the circumstances and manner in which the Required
Percentage (as defined below) applicable to each matter is calculated.
"Required Percentage" means with respect to any matter requiring a vote of
holders of certificates of a given series, the specified percentage (computed
on the basis of outstanding Certificate Principal Balance or Notional Amount,
as applicable) of certificates of a designated class or group of classes
within such series (either voting as separate classes or as a single class)
applicable to such matter, all as specified in the applicable prospectus
supplement and the related series supplement to the trust agreement. "Voting
Rights" evidenced by any certificate will be the portion of the voting rights
of all the certificates in the related series allocated in the manner
described in the related prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement,
so long as an Administrative Agent Termination Event under the trust agreement
with respect to a given series of certificates remains unremedied, the
Depositor or the trustee may, and at the direction of holders of such
certificates evidencing not less than the "Required Percentage-Administrative
Agent Termination" (as defined in the prospectus supplement, if applicable) of
the Voting Rights, the trustee will, terminate all the rights and obligations
of the administrative agent under the trust agreement relating to the
applicable trust and in and to the related Deposited Assets (other than any
Retained Interest of such administrative agent). The trustee will then succeed
to all the responsibilities, duties and liabilities of the administrative
agent under the trust agreement with respect to such series (except that if
the trustee is prohibited by law from obligating itself to make advances
regarding delinquent Underlying Securities, then the trustee will not be so
obligated) and will be entitled to similar compensation arrangements. In the
event that the trustee is unwilling or unable to act, it may or, at the
written request of the holders of such certificates evidencing not less than
the "Required Percentage-Administrative Agent Termination" of the Voting
Rights, it will appoint, or petition a court of competent jurisdiction for the
appointment of, an administration agent acceptable to the rating agency with a
net worth at the time of such appointment of at least $15,000,000 to act as
successor to such administrative agent under the trust agreement with respect
to such series. Pending such appointment, the trustee is obligated to act in
such capacity (except that if the trustee is prohibited by law from obligating
itself to make advances regarding delinquent Underlying Securities, then the
trustee will not be so obligated). The trustee and any such successor may
agree upon the compensation to be paid to such successor, which in no event
may be greater than the compensation payable to such administrative agent
under the trust agreement with respect to such series.
No certificateholder will have the right under the trust agreement to
institute any proceeding with respect thereto unless the holder previously has
given to the trustee written notice of breach and unless the holders of
certificates evidencing not less than the "Required Percentage-Remedies" (as
defined in the prospectus supplement) of the Voting Rights have made written
request upon the trustee to institute such proceeding in its own name as
trustee thereunder and have offered to the trustee reasonable indemnity, and
the trustee for fifteen days has neglected or refused to institute any such
proceeding. The trustee, however, is under no obligation to exercise any of
the trusts or powers vested in it by the trust agreement or to make any
investigation of matters arising thereunder or to institute, conduct or defend
any litigation thereunder or in relation thereto at the request, order or
direction of any of the holders of certificates covered by the trust
agreement, unless the certificateholders have offered to the trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby.
Modification and Waiver
Unless otherwise specified in the applicable prospectus supplement,
the trust agreement for each series of certificates may be amended by the
Depositor and the trustee with respect to such series, without notice to or
consent of the certificateholders, for specified purposes including:
o to cure any ambiguity;
o to correct or supplement any provision therein which may be
inconsistent with any other provision therein or in the related
prospectus supplement;
o to add or supplement any Credit Support for the benefit of any
certificateholders (provided that if any such addition affects
any series or class of certificateholders differently than any
other series or class of certificateholders, then such addition
will not, as evidenced by an opinion of counsel, have a material
adverse effect on the interests of any affected series or class
of certificateholders); and
o to add to the covenants, restrictions or obligations of the
Depositor, the administrative agent, if any, or the trustee for
the benefit of the certificateholders; and
o to add, change or eliminate any other provisions with respect to
matters or questions arising under such trust agreement so long
as (x) any such addition, change or elimination will not, as
evidenced by an opinion of counsel, affect the tax status of the
trust or result in a sale or exchange of any certificate for tax
purposes and (y) the trustee has received written confirmation
from each rating agency rating such certificates that such
amendment will not cause such rating agency to qualify, reduce
or withdraw the then current rating thereof; or to comply with
any requirements imposed by the Code.
Without limiting the generality of the foregoing, unless otherwise specified
in the applicable prospectus supplement, the trust agreement may also be
modified or amended from time to time by the Depositor, and the trustee, with
the consent of the holders of certificates evidencing not less than the
"Required Percentage-Amendment" (as defined in the prospectus supplement) of
the Voting Rights of those certificates that are materially adversely affected
by such modification or amendment for the purpose of adding any provision to
or changing in any manner or eliminating any provision of the trust agreement
or of modifying in any manner the rights of such certificateholders; provided,
however, that in the event modification or amendment would materially
adversely affect the rating of any series or class by each rating agency, the
"Required Percentage--Amendment" specified in the related series supplement to
the trust agreement shall include an additional specified percentage of the
certificates of such series or class.
Except as otherwise set forth in the applicable prospectus
supplement, no such modification or amendment may, however, (i) reduce in any
manner the amount of or alter the timing of, distributions or payments which
are required to be made on any certificate without the consent of the holder
of such certificate or (ii) reduce the aforesaid Required Percentage of Voting
Rights required for the consent to any amendment without the consent of the
holders of all certificates covered by the trust agreement then outstanding.
Unless otherwise specified in the applicable prospectus supplement,
holders of certificates evidencing not less than the "Required
Percentage-Waiver" (as defined in the applicable prospectus supplement) of the
Voting Rights of a given series may, on behalf of all certificateholders of
that series, (i) waive, insofar as that series is concerned, compliance by the
Depositor, the trustee or the administrative agent, if any, with certain
restrictive provisions, if any, of the trust agreement before the time for
such compliance and (ii) waive any past default under the trust agreement with
respect to certificates of that series, except a default in the failure to
distribute amounts received as principal of (and premium on, if any) or any
interest on any such certificate and except a default in respect of a covenant
or provision the modification or amendment of which would require the consent
of the holder of each outstanding certificate affected thereby.
Reports to Certificateholders; Notices
Reports to Certificateholders. Unless otherwise provided in the
applicable prospectus supplement, with each distribution to certificateholders
of any class of certificates of a given series, the administrative agent or
the trustee, as provided in the related prospectus supplement, will forward or
cause to be forwarded to each such certificateholder, to the Depositor and to
such other parties as may be specified in the trust agreement, a statement
setting forth:
o the amount of such distribution to certificateholders of such
class allocable to principal of or interest or premium, if any,
on the certificates of such class; and the amount of aggregate
unpaid interest as of such Distribution Date;
o in the case of certificates with a variable Pass-Through Rate,
the Pass-Through Rate applicable to such Distribution Date, as
calculated in accordance with the method specified herein and in
the related prospectus supplement;
o the amount of compensation received by the administrative agent,
if any, and the trustee for the period relating to such
Distribution Date, as well as any extraordinary trust expenses
incurred during such period, and such other customary
information as the administrative agent, if any, or otherwise
the trustee deems necessary or desirable to enable
certificateholders to prepare their tax returns;
o if the prospectus supplement provides for advances, the
aggregate amount of advances included in such distribution, and
the aggregate amount of unreimbursed advances at the close of
business on such Distribution Date;
o the aggregate stated principal amount or, if applicable,
notional principal amount of the Underlying Securities and the
current interest rate thereon at the close of business on such
Distribution Date;
o the aggregate Certificate Principal Balance or aggregate
Notional Amount, if applicable, of each class of certificates
(including any class of certificates not offered hereby) at the
close of business on such Distribution Date, separately
identifying any reduction in such aggregate Certificate
Principal Balance or aggregate Notional Amount due to the
allocation of any Realized Losses or otherwise; and
o as to any series (or class within such series) for which Credit
Support has been obtained, the amount of coverage of each
element of credit support included therein as of the close of
business on such Distribution Date.
In the case of information furnished with respect to the amounts of
distributions or the amounts of compensation of the administrative agent and
the trustee, the amounts shall be expressed as a U.S. dollar amount (or
equivalent thereof in any other Specified Currency) per minimum denomination
of certificates or for such other specified portion thereof. Within a
reasonable period of time after the end of each calendar year, the
administrative agent or the trustee, as provided in the related prospectus
supplement, shall furnish to each person who at any time during the calendar
year was a certificateholder a statement containing the information set forth
above with respect to the amounts of distributions or the amounts of
compensation of the administrative agent and the trustee, aggregated for such
calendar year or the applicable portion thereof during which such person was a
certificateholder. Such obligation of the administrative agent or the trustee,
as applicable, will be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the administrative
agent or the trustee, as applicable, pursuant to any requirements of the Code
as are from time to time in effect.
Notices. Unless otherwise provided in the applicable prospectus
supplement, any notice required to be given to a holder of a registered
certificate will be mailed to the last address of such holder set forth in the
applicable certificate register. Any notice required to be given to a holder
of a bearer certificate will be published in a daily morning newspaper of
general circulation in the city or cities specified in the prospectus
supplement relating to such bearer certificate.
Evidence as to Compliance
If so specified in the applicable prospectus supplement, the trust
agreement will provide that 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 Deposited Assets 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 prospectus supplement, which date shall not be more than one year after
the related Original Issue Date) 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 trust agreement may also provide for delivery to the Depositor,
the administrative agent, if any, and the trustee on behalf of the
certificateholders, 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 certificates.
Copies of the annual accountants' statement, if any, and the
statement of officers of the trustee may be obtained by certificateholders
without charge upon written request to either the administrative agent or the
trustee, as applicable, at the address set forth in the related prospectus
supplement.
Replacement Certificates
Unless otherwise provided in the applicable prospectus supplement, if
a certificate is mutilated, destroyed, lost or stolen, it may be replaced at
the corporate trust office or agency of the applicable trustee in the City and
State of New York (in the case of registered certificates) or at the principal
London office of the applicable trustee (in the case of bearer certificates),
or such other location as may be specified in the applicable prospectus
supplement, upon payment by the holder of such expenses as may be incurred by
the applicable trustee in connection therewith and the furnishing of such
evidence and indemnity as such trustee may require. Mutilated certificates
must be surrendered before new certificates will be issued.
Termination
The obligations created by the trust agreement for each series of
certificates will terminate upon the payment to certificateholders of that
series of all amounts held in the related certificate account or by an
administrative agent, if any, and required to be paid to them pursuant to the
trust agreement following the earlier of (i) the final payment or other
liquidation of the last Deposited Assets subject thereto or the disposition of
all property acquired upon foreclosure or liquidation of any such Deposited
Assets and (ii) the purchase of all the assets of the trust by a party
entitled to effect such purchase, under the circumstances and in the manner
set forth in the related prospectus supplement. In no event, however, will any
trust created by the trust agreement continue beyond the respective date
specified in the related prospectus supplement. Written notice of termination
of the obligations with respect to the related series of certificates under
the trust agreement will be provided as set forth above under "--Reports to
Certificateholders; Notices--Notices," and the final distribution will be made
only upon surrender and cancellation of the certificates at an office or
agency appointed by the trustee which will be specified in the notice of
termination.
Any purchase of Deposited Assets and property acquired in respect of
Deposited Assets evidenced by a series of certificates will be made at a price
approximately equal to the aggregate fair market value of all the assets in
the trust (as determined by the trustee, the administrative agent, if any,
and, if different than both such persons, the person entitled to effect such
termination), in each case taking into account accrued interest at the
applicable interest rate to the first day of the month following such purchase
or, to the extent specified in the applicable prospectus supplement, a
specified price as determined therein (such price, a "Purchase Price"). The
exercise of such right will effect early retirement of the certificates of
that series, but the right of the person entitled to effect such termination
is subject to the aggregate principal balance of the outstanding Deposited
Assets for such series at the time of purchase being less than the percentage
of the aggregate principal balance of the Deposited Assets at the Cut-off Date
for that series specified in the related prospectus supplement.
Duties of the Trustee
The trustee makes no representations as to the validity or
sufficiency of the trust agreement, the certificates of any series or any
Deposited Assets or related document. The trustee is not accountable for the
use or application by or on behalf of any administrative agent of any funds
paid to the administrative agent or its designee in respect of such
certificates or the Deposited Assets, or deposited into or withdrawn from the
related certificate account or any other account by or on behalf of the
administrative agent. If no Administrative Agent Termination Event has
occurred and is continuing with respect to any given series, the trustee is
required to perform only those duties specifically required under the trust
agreement with respect to such series. However, upon receipt of the various
certificates, reports or other instruments required to be furnished to it, the
trustee is required to examine such documents and to determine whether they
conform to the applicable requirements of the trust agreement.
The Trustee
The trustee for any given series of certificates under the trust
agreement will be named in the related prospectus supplement. The commercial
bank, national banking association or trust company serving as trustee will be
unaffiliated with, but may have normal banking relationships with, the
Depositor, any administrative agent and their respective affiliates.
LIMITATIONS ON ISSUANCE OF BEARER CERTIFICATES
In compliance with United States Federal income tax laws and
regulations, the Depositor and any underwriter, agent or dealer participating
in the offering of any bearer certificate will agree that, in connection with
the original issuance of such bearer certificate and during the period ending
40 days after the issue of such bearer certificate, they will not offer, sell
or deliver such bearer certificate, directly or indirectly, to a U.S. Person
(as defined below) or to any person within the United States, except to the
extent permitted under U.S. Treasury regulations.
Bearer certificates 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 certificates 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 certificates.
As used herein, "United States" means the United States of America
and its possessions, and "U.S. Person" means 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 an estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source.
Pending the availability of a definitive global security or
individual bearer certificates, as the case may be, certificates that are
issuable as bearer certificates may initially be represented by a single
temporary global security, without interest coupons, to be deposited with a
common depositary in London for Euroclear Bank S.A./N.V., as operator of the
Euroclear System ("Euroclear"), and Clearstream Banking, a societe anonyme
("Clearstream Luxembourg"), for credit to the accounts designated by or on
behalf of the purchasers thereof. Following the availability of a definitive
global security in bearer form, without coupons attached, or individual bearer
certificates and subject to any further limitations described in the
applicable prospectus supplement, the temporary global security will be
exchangeable for interests in such definitive global security or for such
individual bearer certificates, respectively, only upon receipt of a
"Certificate of Non-U.S. Beneficial Ownership." A "Certificate of Non-U.S.
Beneficial Ownership" is a certificate 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. No bearer certificate will be
delivered in or to the United States. If so specified in the applicable
prospectus supplement, interest on a temporary global security will be
distributed to each of Euroclear and Clearstream Luxembourg 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.
CURRENCY RISKS
Exchange Rates and Exchange Controls
An investment in a certificate having a Specified Currency other than
U.S. dollars entails significant risks that are not associated with a similar
investment in a security denominated in U.S. dollars. Such risks include,
without limitation, the possibility of significant changes in rates of
exchange between the U.S. dollar and such Specified Currency and the
possibility of the imposition or modification of foreign exchange controls
with respect to such Specified Currency. Such risks generally depend on
factors over which the Depositor has no control, such as economic and
political events and the supply of and demand for the relevant currencies. In
recent years, rates of exchange between the U.S. dollar and certain currencies
have been highly volatile, and such volatility may be expected in the future.
Fluctuations in any particular exchange rate that have occurred in the past
are not necessarily indicative, however, of fluctuations in the rate that may
occur during the term of any certificate. Depreciation of the Specified
Currency for a certificate against the U.S. dollar would result in a decrease
in the effective yield of such certificate below its Pass-Through Rate and, in
certain circumstances, could result in a loss to the investor on a U.S. dollar
basis.
Governments have from time to time imposed, and may in the future
impose, exchange controls that could affect exchange rates as well as the
availability of a Specified Currency for making distributions in respect of
certificates denominated in such currency. At present, the Depositor has
identified the following currencies in which distributions of principal,
premium and interest on certificates may be made: Australian dollars, Canadian
dollars, pounds sterling, Danish kroner, Italian lire, Japanese yen, New
Zealand dollars, U.S. dollars and ECU. However, certificates distributable
with Specified Currencies other than those listed may be issued at any time.
There can be no assurance that exchange controls will not restrict or prohibit
distributions of principal, premium or interest in any Specified Currency.
Even if there are no actual exchange controls, it is possible that, on a
Distribution Date with respect to any particular certificate, the currency in
which amounts then due to be distributed in respect of such certificate are
distributable would not be available. In that event, such payments will be
made in the manner set forth above under "Description of the
Certificates--General" or as otherwise specified in the applicable prospectus
supplement.
As set forth in the applicable prospectus supplement, certain of the
Underlying Securities may be denominated in a currency other than the
Specified Currency. Although payments in respect of principal and interest on
the certificates will be made in the Specified Currency, such payments may be
based in whole or in part upon receipt by the related trust of payments in the
Underlying Securities Currency. An investment in certificates supported by
Underlying Securities denominated in a currency other than the Specified
Currency entails significant risks not associated with an investment in
securities supported by obligations denominated in the same currency as the
currency of payment on such securities. Such risks include, without
limitation, the possibility of significant changes in rates of exchange
between the Specified Currency and the Underlying Securities Currency and the
possibility of the imposition or modification of foreign exchange controls
with respect to either the Specified Currency or the Underlying Securities
Currency.
PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL
ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN CERTIFICATES DENOMINATED
IN A CURRENCY OTHER THAN U.S. DOLLARS. SUCH CERTIFICATES ARE NOT AN
APPROPRIATE INVESTMENT FOR PERSONS WHO ARE UNSOPHISTICATED WITH RESPECT TO
FOREIGN CURRENCY TRANSACTIONS.
The information set forth in this prospectus is directed to
prospective purchasers of certificates who are United States residents. The
applicable prospectus supplement for certain issuances of certificates may set
forth certain information applicable to prospective purchasers who are
residents of countries other than the United States with respect to matters
that may affect the purchase or holding of, or receipt of distributions of
principal, premium or interest in respect of, such certificates.
Any prospectus supplement relating to certificates having a Specified
Currency other than U.S. dollars will contain information concerning
historical exchange rates for such currency against the U.S. dollar, a
description of such currency, any exchange controls affecting such currency
and any other required information concerning such currency.
Payment Currency
Except as set forth below or unless otherwise provided in the
applicable prospectus supplement, if distributions in respect of a certificate
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 Depositor's control 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, then all distributions in respect of such certificate shall be made
in U.S. dollars until such currency is again available or so used. The amounts
so payable on any date in such currency shall be converted into U.S. dollars
on the basis of the most recently available Market Exchange Rate for such
currency or as otherwise indicated in the applicable prospectus supplement.
If distribution in respect of a certificate is required to be made in
ECU and ECU is no longer used in the European Monetary System, then all
distributions in respect of such certificate shall be made in U.S. dollars
until ECU is again so used. The amount of each distribution in U.S. dollars
shall be computed on the basis of the equivalent of the ECU in U.S. dollars,
determined as described below, as of the second Business Day prior to the date
on which such distribution is to be made.
The equivalent of the ECU in U.S. dollars as of any date (the "Day of
Valuation") shall be determined for the certificates of any series and class
by the applicable trustee on the following basis. The component currencies of
the ECU for this purpose (the "Components") shall be the currency amounts that
were components of the ECU as of the last date on which the ECU was used in
the European Monetary System. The equivalent of the ECU in U.S. dollars shall
be calculated by aggregating the U.S. dollar equivalents of the Components.
The U.S. dollar equivalent of each of the Components shall be determined by
such trustee on the basis of the most recently available Market Exchange Rates
for such Components or as otherwise indicated in the applicable prospectus
supplement.
If the official unit of any component currency is altered by way of
combination or subdivision, the number of units of that currency as a
Component shall be divided or multiplied in the same proportion. If two or
more component currencies are consolidated into a single currency, the amounts
of those currencies as Components shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated component
currencies expressed in such single currency. If any component currency is
divided into two or more currencies, the amount of that currency as a
Component shall be replaced by amounts of such two or more currencies, each of
which shall be equal to the amount of the former component currency divided by
the number of currencies into which that currency was divided.
All determinations referred to above made by the applicable trustee
shall be at its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on the related certificateholders
of such series.
Foreign Currency Judgments
Unless otherwise specified in the applicable prospectus supplement,
the certificates will be governed by and construed in accordance with the law
of the State of New York. Courts in the United States customarily have not
rendered judgments for money damages denominated in any currency other than
the U.S. dollar. A 1987 amendment to the Judiciary Law of the State of New
York provides, however, that an action based upon an obligation denominated in
a currency other than U.S. dollars will be rendered in the foreign currency of
the underlying obligation and converted into U.S. dollars at the rate of
exchange prevailing on the date of the entry of the judgment or decree.
UNDERWRITING
Certificates may be offered in any of three ways: (i) through
underwriters or dealers; (ii) directly to one or more purchasers; or (iii)
through agents. The applicable prospectus supplement will set forth the terms
of the offering of any series of certificates, which may include the names of
any underwriters, or initial purchasers, the purchase price of the
certificates and the proceeds to the Depositor from the sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or
paid to dealers, any securities exchanges on which the certificates may be
listed, any restrictions on the sale and delivery of certificates in bearer
form and the place and time of delivery of the certificates to be offered
thereby.
If underwriters are used in the sale, certificates will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Certificates may be offered to the public either through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. The managing underwriters or underwriters in the United States will
include BAS, an affiliate of the Depositor. Unless otherwise set forth in the
applicable prospectus supplement, the obligations of the underwriters to
purchase the certificates will be subject to certain conditions precedent, and
the underwriters will be obligated to purchase all of the certificates if any
certificates are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Certificates may also be sold through agents designated by the
Depositor from time to time. Any agent involved in the offer or sale of
certificates will be named, and any commissions payable by the Depositor to
such agent will be set forth, in the applicable prospectus supplement. Unless
otherwise indicated in the applicable prospectus supplement, any agent will
act on a best efforts basis for the period of its appointment.
If so indicated in the applicable prospectus supplement, the
Depositor will authorize agents, underwriters or dealers to solicit offers by
certain specified institutions to purchase certificates at the public offering
price described in such prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a future date specified in
such prospectus supplement. Such contracts will be subject only to those
conditions set forth in the applicable prospectus supplement and such
prospectus supplement will set forth the commissions payable for solicitation
of such contracts.
Any underwriters, dealers or agents participating in the distribution
of certificates may be deemed to be underwriters and any discounts or
commissions received by them on the sale or resale of certificates may be
deemed to be underwriting discounts and commissions under the Securities Act.
Agents and underwriters may be entitled under agreements entered into with the
Depositor to indemnification by the Depositor against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for, the Depositor or its
affiliates in the ordinary course of business.
BAS is an affiliate of the Depositor. BAS's participation in the
offer and sale of certificates complies with the requirements of Section 2720
of the Conduct Rules of the National Association of Securities Dealers, Inc.
regarding underwriting securities of an affiliate.
As to each series of certificates, only those classes rated in one of
the investment grade rating categories by a rating agency will be offered
hereby. Any unrated classes or classes rated below investment grade may be
retained by the Depositor or sold at any time to one or more purchasers.
Affiliates of the underwriters may act as agents or underwriters in
connection with the sale of the certificates. Any affiliate of the
underwriters so acting will be named, and its affiliation with the
underwriters described, in the related prospectus supplement. Also, affiliates
of the underwriters may act as principals or agents in connection with
market-making transactions relating to the certificates.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of material United States federal income
tax consequences of the ownership of the certificates as of the date hereof.
It should be considered only in connection with the discussion of the related
prospectus supplement with respect to U.S. federal income tax considerations.
It is a condition to the issuance of certificates that Special Tax
Counsel deliver an opinion that the trust will not be characterized as an
association taxable as a corporation (or publicly traded partnership treated
as an association) for federal income tax purposes. Special Tax Counsel has
not delivered (and unless otherwise indicated in the related prospectus
supplement does not intend to deliver) any other opinions regarding the trust
or the certificates. Prospective investors should be aware that no rulings
have been sought from the Internal Revenue Service (the "IRS"), and that legal
opinions are not binding on the IRS or the courts. Accordingly, there can be
no assurance that the IRS or the courts will agree with Special Tax Counsel's
opinions. If, contrary to Special Tax Counsel's opinion, the trust is
characterized or treated as a corporation for federal income tax consequences,
among other consequences, the trust would be subject to federal income tax
(and similar state income or franchise taxes) on its income and distributions
to certificateholders would be impaired. In light of Special Tax Counsel's
opinion, however, the balance of this discussion assumes that the trust will
not be characterized or treated as a corporation.
This summary and the opinion of Special Tax Counsel will be based on
the Internal Revenue Code of 1986 (the "Code") as well as Treasury regulations
and administrative and judicial rulings and practice. Legislative, judicial
and administrative changes may occur, possibly with retroactive effect, that
could alter or modify the continued validity of the statements and conclusions
set forth herein. This summary is intended as an explanatory discussion of the
consequences of holding the certificates generally and does not purport to
furnish information in the level of detail or with the investor's specific tax
circumstances that would be provided by an investor's own tax advisor.
Accordingly, it is strongly recommended that each prospective investor consult
with its own tax advisor regarding the application of United States federal
income tax laws, as well as any state, local, foreign or other tax laws, to
their particular situations.
Except with respect to certain withholding tax matters discussed
below under "-- Withholding Taxes," the discussion is limited to consequences
to U.S. Persons. For purposes of this discussion, a U.S. Person is: (i) a
citizen or resident of the United States, (ii) a corporation or partnership
organized in or under the laws of the United States, any state thereof or the
District of Columbia, or (iii) an estate or trust that is a United States
Person within the meaning of Section 7701(a)(30) of the Code.
For the purposes of this discussion, the Depositor and Special Tax
Counsel have assumed, without inquiry, that the Underlying Securities will be
characterized as indebtedness for federal income tax purposes. The prospectus
supplement may contain additional information about the federal income tax
characterization of the Underlying Securities.
Withholding Taxes
Except as provided in the related prospectus supplement, payments
made on a certificate to a person that is not a U.S. Person and has no
connection with the United States other than holding its certificates
generally will be made free of United States federal withholding tax, provided
that (i) the holder is not related (directly or indirectly) to the obligor,
guarantor, if any, or sponsor of the Underlying Securities, the Depositor, the
holder of any other class of certificates (if such series provides for
multiple classes of certificates), the holder of any Call Option or the
counterparty on any notion principal contract or other derivative contract of
which the trust is a party and (ii) the holder complies with certain
identification and certification requirements imposed by the IRS.
State and Other Tax Consequences
In addition to the federal income tax consequences described above
and in related prospectus supplement, potential investors should consider the
state, local and foreign tax consequences of the acquisition, ownership and
disposition of the certificates. State, local and foreign tax law may differ
substantially from federal tax law, and this discussion does not purport to
describe any aspect of the tax law of a state or other jurisdiction (including
whether the trust, if treated as a partnership for federal income tax
purposes, would be treated as a partnership under any state or local
jurisdiction). Therefore, it is strongly recommended that prospective
purchasers consult their own tax advisers with respect to such matters.
ERISA CONSIDERATIONS
General
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the Internal Revenue Code of 1986, as amended (the "Code"),
impose certain restrictions on (a) employee benefit plans (as defined in
Section 3(3) of ERISA), (b) plans described in section 4975(e)(1) of the Code,
including individual retirement accounts or Keogh plans, (c) any entities
whose underlying assets include plan assets by reason of a plan's investment
in such entities (each a "Plan") and (d) persons who have certain specified
relationships to such Plans ("Parties-in-Interest" under ERISA and
"Disqualified Persons" under the Code). Moreover, based on the reasoning of
the United States Supreme Court in John Hancock Life Ins. Co. v. Harris Trust
and Sav. Bank, 114 S. Ct. 517 (1993), an insurance company's general account
may be deemed to include assets of the Plans investing in the general account
(e.g., through the purchase of an annuity contract), and the insurance company
might be treated as a Party-in-Interest with respect to a Plan by virtue of
such investment. ERISA also imposes certain duties on persons who are
fiduciaries of Plans subject to ERISA and prohibits certain transactions
between a Plan and Parties-in-Interest or Disqualified Persons with respect to
such Plans.
The United States Department of Labor (the "DOL") has promulgated a
regulation, 29 C.F.R. ss.2510.3-101 (the "Plan Asset Regulation") describing
what constitutes the assets of a Plan with respect to the Plan's investment in
an entity for purposes of the fiduciary responsibility provisions of Title I
of ERISA and Section 4975 of the Code. Under the Plan Asset Regulation, if a
Plan invests in an "equity interest" of an entity that is neither a "publicly
offered security" nor a security issued by an investment company registered
under the Investment Company Act of 1940, the Plan's assets are deemed to
include both the equity interest itself and an undivided interest in each of
the entity's underlying assets, unless it is established that the entity is an
"operating company" or that equity participation by "benefit plan investors"
is not "significant." The Plan Asset Regulation defines an "equity interest"
as any interest in an entity other than an instrument that is treated as
indebtedness under applicable local law and which has no substantial equity
features. Although it is not free from doubt, the certificates offered hereby
should be treated as "equity interests" for purposes of the Plan Asset
Regulation.
Publicly Held Securities Exception
One exception under the Plan Asset Regulation provides that an
investing Plan's assets will not include any of the underlying assets of an
entity if the class of "equity" interests in question are (i) widely held
(i.e., held by 100 or more investors who are independent of the issuer and
each other), (ii) freely transferable, and (iii) either (a) part of a class of
securities registered under Section 12(b) or 12(g) of the Exchange Act, or (b)
sold as part of an offering of securities to the public pursuant to an
effective registration statement under the Securities Act and such class is
registered under the Exchange Act within 120 days after the end of the fiscal
year of the issuer during which the offering of such securities to the public
occurred (the "Publicly Offered Securities Exception").
25% Limitation
Another exception under the Plan Asset Regulation is available if
equity participation in an entity by Benefit Plan Investors is not
"significant." The Plan Asset Regulation provides that equity participation in
an entity by Benefit Plan Investors is "significant" on any date if,
immediately after the most recent acquisition of any equity interest in the
entity, 25% or more of the value of any class of equity interest in the entity
is held by Benefit Plan Investors (the "25% Limitation"). The term "Benefit
Plan Investor" is defined to include any (i) "employee benefit plan" (as
defined in Section 3(3) of ERISA), whether or not subject to Title I of ERISA,
including without limitation governmental plans, foreign pension plans and
church plans, (ii) "plan" (as defined in Section 4975(e)(1) of the Code),
whether or not subject to Section 4975 of the Code, including without
limitation individual retirement accounts and Keogh plans, or (iii) entity
whose underlying assets include plan assets by reason of such an employee
benefit plan's or plan's investment in such entity, including without
limitation, as applicable, an insurance company general account. For purposes
of making determinations under the 25% Limitation, (i) the value of any equity
interests held by a person (other than a Benefit Plan Investor) that has
discretionary authority or control with respect to the assets of the entity or
that provides investment advice for a fee (direct or indirect) with respect to
such assets, or any affiliate of such a person (each such person or affiliate,
a "Controlling Person"), is disregarded, and (ii) only the proportion of an
insurance company general account's equity investment in the entity that
represents plan assets is taken into account.
If any class of certificates offered hereby does not meet the
Publicly Offered Securities Exception, the [Underwriter] may limit equity
participation in the trust by Benefit Plan Investors to less than 25% of a
particular class of certificates or prohibit investors using assets of Plans
subject to Title I of ERISA or Section 4975 of the Code (including assets of
an insurance company general account) from acquiring such class of
certificates. In such case, each purchaser of such class of certificates will
be required to represent and warrant (A) whether or not it is a Benefit Plan
Investor and whether or not it is a Controlling Person or (B) whether or not
it using assets of Plans subject to Title I of ERISA or Section 4975 of the
Code, as applicable. Any purported purchase or transfer of such class of
Certificate by a purchaser or to a transferee that does not comply with the
foregoing shall be null and void ab initio. [For a discussion of transfer
restrictions with respect to the Certificates, see "Transferability of
Units."]
If any class of certificates offered hereby does not meet the
Publicly Offered Securities Exception and equity participation in the
certificates by Benefit Plan Investors you defined above is "significant"
within the meaning of the Plan Asset Regulation, the assets of the trust could
be deemed to be the assets of Plans investing in the Certificates, as
applicable. If the assets of the trust were deemed to constitute the assets of
an investing Plan, (i) transactions involving the assets of the trust could be
subject to the fiduciary responsibility and prohibited transaction provisions
of ERISA and Section 4975 of the Code for which no exemption may be available,
(ii) the assets of the trust could be subject to ERISA's reporting and
disclosure requirements, and (iii) the fiduciary causing the Plan to make an
investment in the Certificates could be deemed to have delegated its
responsibility to manage the assets of the Plan.
Insurance Company General Accounts
Any purchaser that is an insurance company using the assets of an
insurance company general account should note that under Section 401(c) of
ERISA (relating to the status of the assets of insurance company general
accounts under ERISA and Section 4975 of the Code), the Department of Labor
issued final regulations effective January 5, 2000 (the "General Account
Regulations"), with respect to insurance policies issued on or before December
31, 1998 that are supported by an insurer's general account. As a result of
these regulations, assets of an insurance company general account will not be
treated as "plan assets" for purposes of the fiduciary responsibility
provisions of ERISA and Section 4975 of the Code to the extent such assets
relate to contracts issued to employee benefit plans on or before December 31,
1998 and the insurer satisfies various conditions. The plan asset status of
insurance company separate accounts is unaffected by new Section 401(c) of
ERISA, and separate account assets continue to be treated as the plan assets
of any such plan invested in a separate account.
Governmental and Church Plans
Certain employee benefit plans, such as governmental plans (as
defined in Section 3(32) of ERISA), certain church plans (as defined in
Section 3(33) of ERISA) and certain foreign plans are not subject to the
requirements of Title I of ERISA or Section 4975 of the Code. Such plans,
however, may be treated as Benefit Plan Investors for purposes of the 25%
Limitation, and for any such plan that is qualified and exempt from taxation
under Sections 401(a) and 501(a) of the Code is subject to the prohibited
transaction rules set forth in Section 503 of the Code.
General Investment Considerations
Any Plan fiduciary that proposes to cause a Plan to purchase
Certificates should consult with its counsel with respect to the potential
applicability of ERISA and the Code to such investment and determine on its
own whether any exceptions or exemptions are applicable (including the
Publicly Offered Securities Exception) and whether all conditions of any such
exceptions or exemptions have been satisfied.
Moreover each Plan fiduciary should determine whether, under the
general fiduciary standards of investment prudence and diversification, an
investment in the Certificates is appropriate for the Plan, taking into
account the overall investment policy of the Plan and the composition of the
Plan's investment portfolio.
The sale of the Certificates is in no respect a representation by the
[Underwriter], the Trustee or any other person that such an investment meets
all relevant legal requirements with respect to investments by Plans generally
or that such an investment is appropriate for any particular Plan. See "ERISA
Considerations" in the prospectus supplement.
LEGAL OPINIONS
Certain legal matters with respect to the certificates will be passed
upon for the Depositor and the underwriters by Skadden, Arps, Slate, Meagher &
Flom LLP, New York, New York, or other counsel identified in the applicable
prospectus supplement.
<page>
INDEX OF TERMS FOR PROSPECTUS
Page
$.............................................................................2
25% Limitation...............................................................67
Administrative Agent Termination Events......................................55
Asset-Backed Agreements......................................................37
Asset-Backed Securities......................................................31
BAS...........................................................................2
Base Rate....................................................................17
Benefit Plan Investor........................................................67
Business Day ...............................................................16
Calculation Agent............................................................18
CD Rate..................................................................19, 20
CD Rate Calculation Date.....................................................20
CD Rate Certificate..........................................................17
CD Rate Determination Date...................................................19
certificate..................................................................11
certificate account..........................................................49
Certificate of Non-U.S. Beneficial Ownership.................................61
Certificate Principal Balance................................................24
Clearstream Luxembourg.......................................................61
Code.....................................................................65, 66
Commercial Paper Rate........................................................20
Commercial Paper Rate Calculation Date.......................................21
Commercial Paper Rate Certificate............................................17
Commercial Paper Rate Determination Date.....................................20
Company......................................................................78
Components...................................................................63
Composite Quotations.........................................................18
Concentrated Underlying Security.............................................35
Controlling Person...........................................................68
Corporate Securities.........................................................32
Credit Support...............................................................47
Cut-off Date ...............................................................50
Day of Valuation.............................................................63
definitive certificate.......................................................28
Depositary ..................................................................28
Deposited Asset..............................................................49
Deposited Assets..........................................................i, 49
Deposited Assets Instruments.................................................50
Determination Date...........................................................14
Disqualified Persons.........................................................66
Distribution Date.............................................................i
DOL..........................................................................67
dollar .......................................................................2
Domestic Corporate Securities................................................31
Domestic Government Securities...............................................32
Dual Currency Certificates...................................................26
Dutch Auction ...............................................................24
Equipment Trust Certificates.................................................31
ERISA .......................................................................66
ETC Credit Entity............................................................36
ETC Issuer...................................................................36
Euroclear ...................................................................61
Exchange Act..................................................................1
Exchange Rate Agent..........................................................14
Exchangeable Series..........................................................26
Face Amount..................................................................25
Fannie Mae...................................................................37
FASIT........................................................................14
Federal Funds Rate...........................................................21
Federal Funds Rate Calculation Date..........................................21
Federal Funds Rate Certificate...............................................17
Federal Funds Rate Determination Date........................................21
FHLMC........................................................................37
FIRRE Act....................................................................40
Fixed Pass-Through Rate......................................................12
Fixed Rate Certificates......................................................16
Floating Rate Certificates...............................................17, 18
Foreign Currency Certificate.................................................25
Foreign Fiscal Agent.........................................................43
Foreign Government Securities................................................32
Foreign Private Securities...................................................32
Freddie Mac..................................................................38
General Account Regulations..................................................68
Government Securities........................................................32
GSEs.........................................................................32
GTC Notes....................................................................43
GTCs ........................................................................32
H.15(519)....................................................................18
incorporate by reference......................................................1
Index Maturity...............................................................18
Indexed Certificates.........................................................25
Indexed Commodity............................................................25
Indexed Currency.............................................................25
Indexed Principal Amount.....................................................25
Initial Pass-Through Rate....................................................17
Interest Accrual Period......................................................18
Interest Reset Date..........................................................18
IRS.......................................................................4, 65
LIBOR....................................................................21, 22
LIBOR Certificate............................................................17
LIBOR Determination Date.....................................................21
London Banking Day...........................................................16
Market Exchange Rate.........................................................14
Maximum Pass-Through Rate....................................................18
Minimum Pass-Through Rate....................................................18
Money Market Yield...........................................................20
Multilateral Bank Issuer.....................................................44
Nonrecoverable Advance.......................................................53
Notional Amount..............................................................16
Optional Exchange Date.......................................................26
Original Issue Date..........................................................12
Other Deposited Assets.......................................................46
Outstanding Debt Securities..................................................35
participants ...............................................................28
Parties-in-Interest..........................................................66
Pass-Through Rate............................................................12
Plan.........................................................................66
Plan Asset Regulation........................................................67
Private Sector Securities....................................................31
publicly issued..............................................................32
Publicly Offered Securities Exception........................................67
Purchase Price...............................................................60
Realized Losses..............................................................25
Reference Entity.............................................................46
Reference Security...........................................................46
Related Proceeds.............................................................53
Required Percentage..........................................................55
Required Percentage-Administrative Agent Termination.........................55
Required Percentage-Amendment................................................57
Required Percentage-Remedies.................................................56
Required Percentage-Waiver...................................................57
reserve account..............................................................48
Retained Interest.............................................................9
Reuters Screen LIBO Page.....................................................22
Sallie Mae...............................................................37, 39
Schedule B...................................................................43
SEC...........................................................................2
Secured Underlying Securities................................................35
Senior Underlying Securities.................................................35
Specified Currency...........................................................13
Spread.......................................................................17
Spread Multiplier............................................................17
Strip Certificates...........................................................13
Stripped Interest............................................................16
Sub-Administrative Agent.....................................................51
Subordinated Underlying Securities...........................................35
Systemwide Debt Securities...................................................41
Treasury bills...............................................................22
Treasury Rate ...........................................................22, 23
Treasury Rate Calculation Date...............................................23
Treasury Rate Certificate....................................................17
Treasury Rate Determination Date.............................................23
Treasury Securities..........................................................32
Trust Indenture Act..........................................................33
Trust Preferred Securities...................................................31
U.S. dollars..................................................................2
U.S. Person..................................................................61
U.S.$.........................................................................2
UCC..........................................................................37
Underlying Securities.....................................................i, 30
Underlying Securities Currency...............................................45
Underlying Securities Indenture..............................................33
Underlying Securities Interest Accrual Periods...............................44
Underlying Securities Issuer..................................................7
Underlying Securities Payment Dates..........................................44
Underlying Securities Rate...................................................44
Underlying Securities Trustee................................................33
Underlying Security Events of Default........................................35
United States ...............................................................61
USD ..........................................................................2
Variable Pass-Through Rate...................................................12
Voting Rights ...............................................................55
<page>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION (ITEM 14 OF FORM S-3)
The expenses estimated to be incurred in connection with the issuance
and distribution of the securities being registered, other than underwriting
compensation, are as set forth below.
SEC Filing Fee for Registration Statement $ 80.90 *
Accounting Fees and Expenses $ [ ]*
Trustee's Fees and Expenses
(including counsel fees) $ [ ]*
Blue Sky Fees and Expenses $ [ ]*
Listing Fees $ [ ]*
Printing and Engraving Fees $ [ ]*
Rating Agency Fees $ [ ]*
Miscellaneous $ [ ]*
=========
Total $ [ ]*
* All amounts, except the SEC Filing Fee, are estimates for expenses
incurred or to be incurred in accordance with Item 511 of Regulation
S-K.
INDEMNIFICATION OF DIRECTORS AND OFFICERS (ITEM 15 OF FORM S-3)
Section 18-108 of the Delaware Limited Liability Company Act, as
amended (the "Delaware Act"), grants a Delaware limited liability company the
power, subject to such standards and restrictions, if any, as are set forth in
its limited liability company agreement to indemnify and hold harmless any
member or manager or other person from and against any and all claims and
demands whatsoever. Section 3.13(a) of the Limited Liability Company Agreement
of the Depositor (the "Agreement") provides that no manager (or affiliate
thereof), member or officer of the Depositor shall have any liability to the
Depositor for any act or failure to act on behalf of the Depositor unless such
act or failure to act resulted from the gross negligence or intentional
misconduct of such person or entity. Section 3.13(e) of the Agreement provides
that the managers (any affiliate of the managers), any officers, directors,
stockholders or employees of any affiliate of the managers and the members,
officers and employees of the Depositor shall be "Covered Persons" under the
Agreement. In addition, Section 3.13(b) of the Agreement provides that to the
fullest extent permitted by applicable law, the Depositor shall indemnify and
hold harmless each of Covered Person from and against any and all losses,
claims, demands, liabilities, expenses, judgments, fines, settlements and
other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, in which the
Covered Person may be involved, or is threatened to be involved, as a party or
otherwise, by reason of its management of the affairs of the Depositor or
which relates to or arises out of the Depositor or its property, business or
affairs. A Covered Person shall not be entitled to indemnification with
respect to any claim, issue or matter in which it has engaged in fraud,
willful misconduct, bad faith or gross negligence. Section 18-303 of the
Delaware Act provides that except as otherwise provided therein the debts,
obligations and liabilities of a limited liability company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the limited liability company, and no member or manager of a
limited liability company shall be obligated personally for any such debt,
obligation or liability of the limited liability company solely by reason of
being a member or acting as a manager of the limited liability company.
Section 1.5 of the Agreement provides that except as otherwise provided by the
Delaware Act, the debts, obligations and liabilities of the Depositor, whether
existing in contract, tort, or otherwise shall be obligations and liabilities
of the Depositor and no member or manager shall be obligated personally for
such debt, obligation or liability of the Depositor solely by means of being a
member or manager of the Depositor. Section 3.13(a) provides that any Covered
Person shall be fully protected from any action or inaction based upon or in
accordance with the advice or opinions received from counsel or accountants or
other professionals consulted in respect of the affairs of the Depositor. In
addition, no manager shall be liable for the gross negligence, dishonesty or
bad faith of any officer, employee, or other agent selected by the board of
managers of the Depositor with reasonable care. Notwithstanding any of the
foregoing to the contrary, the provisions of Section 3.13 of the Agreement
shall not relieve any Covered Person of any liability, to the extent that such
liability may not be waived, modified or limited under applicable law.
EXHIBITS (ITEM 16 OF FORM S-3)
Exhibits Description of Exhibit
1.1 -- Form of Underwriting Agreement.
3.1 -- Certificate of Formation of the Depositor as
currently in effect.
3.2 -- Limited Liability Company Agreement of the Depositor.
4.1.1 -- Form of Standard Terms for Trust Agreement.
4.1.2 -- Form of Series Supplement.
5.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
with respect to legality (including consent of such
firm).*
8.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP with respect to material tax matters (including
consent of such firm).*
23.1 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included as part of Exhibit 5.1 and Exhibit 8.1).*
24.1 -- Power of Attorney (included on Signature Page to
Registration Statement).
25.1 -- Statement of Eligibility of Trustee.*
* to be filed by amendment
<page>
UNDERTAKINGS (ITEM 17 OF FORM S-3)
A. Undertakings Pursuant to Rule 415
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act") (ii) to reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement (notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the Securities Act if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement), and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; provided, however, that
paragraphs (1)(i) and (1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with of furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section 13 of 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. Undertakings in Respect of Filings Incorporating Subsequent Exchange
Act Documents by Reference
The undersigned Registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Undertakings in Respect of Qualification of Trust Indentures in
Reliance on Section 305(B)(2) of the Trust Indenture Act of 1939
The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance
with the rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
D. Undertakings in Respect of Requests for Acceleration of Effective
Date Pursuant to Rule 461
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<page>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies on behalf of the Bond Products Depositor LLC (the "Company") that he
has reasonable grounds to believe that the Company meets all of the
requirements for filing on Form S-3 and the Company has duly caused this Form
S-3 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York
on the 7th day of May, 2003.
Bond Products Depositor LLC
By: /s/ Corey B. Pinkston
----------------------------
Corey B. Pinkston
President and Principal
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Corey B. Pinkston and Stephen
K. Stegemeyer as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents, and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Form S-3
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE DATE TITLE
/s/ James R. Stenson May 7, 2003 Chairman of the Board
- -------------------------- and Manager
James R. Stenson
/s/ Corey B. Pinkston May 7, 2003 President, Principal
- ------------------------- Executive
Corey B. Pinkston Officer and Manager
/s/ Stephen K. Stegemeyer May 7, 2003 Senior Vice President,
- ------------------------- Principal Accounting
Stephen K. Stegemeyer Officer and Manager
/s/ George C. Carp May 7, 2003 Principal Financial
- ------------------------- Officer and Manager
George C. Carp
/s/ David J. Walker May 7, 2003 Manager
- -------------------------
David J. Walker
<page>
EXHIBIT INDEX
Page Number Description of Exhibit
1.1 -- Form of Underwriting Agreement.
3.1 -- Certificate of Formation of the Depositor as currently
in effect.
3.2 -- Limited Liability Company Agreement of the Depositor.
4.1.1 -- Form of Standard Terms for Trust Agreement.
4.1.2 -- Form of Series Supplement.
5.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
with respect to legality (including consent of such
firm).*
8.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP with respect to material tax matters (including
consent of such firm).*
23.1 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included as part of Exhibit 5.1 and Exhibit 8.1).*
24.1 -- Power of Attorney (included on signature page to
Registration Statement).
25.1 -- Statement of Eligibility of Trustee.*
* to be filed by amendment