Exhibit 4.1.2
FORM OF
SERIES SUPPLEMENT
[ ] CERTIFICATES
SERIES 20[ ]-[ ] TRUST
between
BOND PRODUCTS DEPOSITOR LLC
as Depositor
and
[NAME OF TRUSTEE]
as Trustee
[ ] TRUST CERTIFICATES
Dated as of [________], 2003
[ ] TRUST CERTIFICATES
Series 20[ ]-[ ] TRUST
SERIES SUPPLEMENT, Series 20[ ]-[ ], dated as of [________], 200[ ]
(the "Series Supplement"), by and between BOND PRODUCTS DEPOSITOR LLC, as
Depositor (the "Depositor"), and [NAME OF TRUSTEE] as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create this Trust (the "Trust") by
executing and delivering this Series Supplement, incorporating the terms of
the Standard Terms for Trust Agreements, dated as of [_______], 200[ ] (the
"Standard Terms" and together with this Series Supplement, the "Trust
Agreement"), by and between the Depositor and the Trustee, as modified by this
Series Supplement;
WHEREAS, the Depositor desires to deposit the Deposited Assets (as
defined herein) into the Trust;
WHEREAS, in connection with the creation of the Trust and the deposit
of the Deposited Assets therein, the parties hereto desire to provide for the
issuance of the Certificates (as defined herein) evidencing undivided
beneficial interests in the Trust; and
WHEREAS, the Trustee has joined in the execution of the Standard
Terms and this Series Supplement to evidence the acceptance by the Trustee of
the Trust.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee as follows:
Section 1. Incorporation of Standard Terms. Except as otherwise
provided herein, the provisions of the Standard Terms are incorporated herein
by reference and this Series Supplement and the Standard Terms shall together
form a single agreement between the parties. In the event of any inconsistency
between the provisions of this Series Supplement and the provisions of the
Standard Terms, the provisions of this Series Supplement will control with
respect to the Series 200[ ]-[ ] Certificates and the transactions described
herein.
Section 2. Definitions. Except as otherwise specified herein or as
the context may otherwise require, the following terms shall have the
respective meanings set forth below for all purposes under this Series
Supplement. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Standard Terms.
["Accreted Principal Amount" for the Class A-[ ] Certificates means
for each six-month period from and including each date specified in Schedule
II hereof to but excluding the next such date, the amount specified in
Schedule II as the "Ending Balance" for such beginning date.]
"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.
["Auction Rate" shall have the meaning set forth in Annex I hereto.]
"Available Funds" shall have the meaning specified in the Standard
Terms [, except that investment income earned on funds invested pursuant to
Section 3.05 of the Standard Terms and proceeds of redemption of the
Underlying Securities shall be included in Available Funds].
"Bidding Procedures" shall mean those procedures for the sale of
Underlying Securities set forth in Section 8(f) of this Agreement.
"Business Day" shall have the meaning set forth in the Standard
Terms.
["Calculation Agent" shall mean [ ].]
["Call Date" shall mean any date occurring on or after
[_____________], on which the proceeds of any Call Option are distributed to
holders of the Certificates pursuant to Section 4.08 of the Standard Terms.]
["Call Option" shall mean the right of the Rights Holder to purchase
the Certificates, in whole or in part, at the Call Price on any Call Date in
accordance with the provisions of Section 7 hereof and the Standard Terms.]
["Call Premium Percentage" shall equal [ ]%.]
["Call Price" shall mean for each related Call Date, (i) in the case
of the Class A-[ ] Certificates, the principal amount of the Class A-[ ]
Certificates to be purchased by the Rights Holder on such date, plus any
accrued and unpaid interest on such amount to but excluding the Call Date,
plus the Class A-[ ] Certificateholder's pro rata portion of the Required
Premium Amount [and (ii) in the case of the Class A-[ ] Certificates, the
Accreted Principal Amount of the Class A-[ ] Certificates to be purchased by
the Rights Holder on such date, plus the Class A-[ ] Certificateholder's pro
rata portion of the Required Premium Amount.]
["Call Rights Agreement" shall mean that certain agreement, dated as
of [ ], 20[ ], between the Depositor, the Trustee and the Rights
Holder.]
"CD Rate" shall mean [ ].
"Certificate Account" shall mean that certain account entitled
"Series 20[ ]-[ ] Bond Products Depositor Certificate Account", as maintained
by the Trustee on behalf of the Certificateholders.
"Certificate Principal Balance" shall have the meaning set forth in
the Standard Terms.
"Certificates" shall have the meaning specified in Section 3 hereof.
["Class A-[ ] [Senior] Certificates" shall mean the US $[ ] [ ]%
Class A-[ ] Fixed Rate Pass Through Certificates, due [ ] 20[ ], in the form
attached hereto as Exhibit B-1 and having the characteristics described
herein.]
["Class A-[ ] Certificate Rate" shall mean a fixed rate equal to [ ]%
per annum (calculated on the basis of a 360 day year consisting of twelve 30
day months).]
["Class A-[ ] Certificates" shall mean the US $[ ] Auction Rate
Pass Through Certificates, due [ ] 20[ ], in the form attached hereto as Exhibit
[B-4] and having the characteristics described herein.]
["Class A-[ ] Certificates" shall mean the US$[ ] Class
A-[ ] Accreting Value Certificates, due [ ], 20[ ], in the form attached hereto
as Exhibit B-2 and having the characteristics described herein.]
["Class A-[ ] [Subordinated] Certificates" shall mean the US$[ ]
Class A-[ ] Variable Rate Pass Through Certificates, due [ ], 20[ ], in the
form attached hereto as Exhibit B-3 and having the characteristics described
herein.]
["Class A-[ ] Certificate Rate" shall mean a floating rate equal to
[LIBOR][the Commercial Paper Rate] [the Treasury Rate] [the Federal Funds
Rate] [the CD Rate] as established on each Interest Determination Date, [plus
[ ]% per annum] calculated on the basis of the actual number of days elapsed
in the relevant Interest Accrual Period divided by [360 days].] For the
initial Interest Accrual Period, the Class A-[ ] Certificate Rate shall be
[ ]%.]
["Class A-[ ] Certificate Rate" shall mean, for each Interest Accrual
Period, the Auction Rate calculated in accordance with the auction procedures
set forth in Annex I to this Agreement.]
"Closing Date" shall mean [________], 2003.
"Collection Period" shall mean, (i) with respect to each [ ]
Distribution Date, the period beginning on the day after the preceding [ ]
Distribution Date and ending on such [ ] Distribution Date, inclusive and,
(ii) with respect to each [ ] Distribution Date, the period beginning on the
day after the preceding [ ] Distribution Date and ending on such [ ]
Distribution Date, inclusive; provided, however, that clauses (i) and (ii)
shall be subject to Section 11(e) hereof.
["Commercial Paper Rate" shall mean [ ].]
"Concentrated Underlying Security" shall mean any Underlying Security
that represents ten percent (10%) or more of the total Deposited Assets.
"Corporate Trust Office" shall mean the office of [______________] at
[__________________].
["Credit Support" shall mean [ ].]
["Credit Support Instrument" shall mean [ ].]
["Credit Support Provider" shall mean [ ].]
"Currency" shall mean [United States Dollars] [or] [specify foreign
currency].
"Cut-Off Date" with respect to the Underlying Securities shall mean
[ ], 200[ ].
"Deferral Period" shall have the meaning set forth in Section 5(d)
hereof.
"Deposited Assets" shall mean the Underlying Securities [and] [the
Other Deposited Assets] [and] [the Credit Support.]
"Depository" shall mean The Depository Trust Company.
"Distribution Date" shall mean [ ] and [ ]
of each year (or if either such date is not a Business Day, the next
succeeding Business Day), commencing on [ ], 20[ ] and ending on the
earlier of (i) the Final Scheduled Distribution Date (absent the exercise by any
Underlying Securities Issuer of its right to defer interest payments) and (ii)
any date prior to the stated maturity date of the Underlying Securities on
which the Underlying Securities are redeemed, prepaid in full or liquidated
for any reason.
"Eligible Account" shall have the meaning specified in the Standard
Terms.
"Eligible Investments" shall have the meaning specified in the
Standard Terms.
"Event of Default" shall mean with respect to an Underlying Security
(i) a default in the payment of any interest on any Underlying Security after
the same becomes due and payable (subject to any applicable grace period),
(ii) a default in the payment of the principal of or any installment of
principal of any Underlying Security when the same becomes due and payable and
(iii) any other event specified as an "Event of Default", a "Termination
Event" or other similar event in the related Underlying Securities Agreement.
"Exchange Request" shall have the meaning set forth in Section 2.
"Extraordinary Trust Expenses" shall have the meaning specified in
the Standard Terms.
["Federal Funds Rate" shall mean [ ].]
"Final Scheduled Distribution Date" shall mean [ ], or
if such day is not a Business Day, the next Business Day.
["Fitch" shall mean Fitch, Inc., doing business as "Fitch Ratings,"
and any successor thereto].
["Interest Accrual Period" shall mean for any Distribution Date, the
period from and including the preceding Distribution Date (or in the case of
the first Interest Accrual Period, from and including the Closing Date) to but
excluding the current Distribution Date.]
"Interest Determination Date" shall be the date which occurs [ ]
Business Days prior to each Distribution Date on which the Calculation Agent
shall determine [LIBOR] [the Commercial Paper Rate] [the Treasury Rate] [the
Federal Funds Rate] [the CD Rate].
"Interest Proceeds" shall mean the portion of Available Funds which
includes (i) all periodic payments of interest (including any accrued
interest) received with respect to any Deposited Asset, (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 or early termination of an Underlying
Security or Other Deposited Asset, and (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".
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules, regulations and interpretations thereunder.
["LIBOR" shall mean [ ].]
"Liquidation Price" shall mean the price at which the Trustee sells
the Underlying Securities.
"Liquidation Proceeds" shall have the meaning specified in the
Standard Terms.
"Market Agent" shall mean [ ].
"Market Agent Agreement" shall mean that agreement among the Market
Agent, the Trustee and the Depositor dated as of [ ].
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
["Moody's" shall mean Moody's Investors Service, Inc., and any
successor thereto.]
["Notional Amount -" with respect to the Class A-[ ] [Senior]
Certificates shall be $[ ] [and with respect to the Class A-[ ]
[Subordinated] Certificates shall be $[ ].]
["Optional Exchange" shall mean the exchange of the Certificates held
by any Certificateholder for all or a portion of the Underlying Securities in
accordance with Section 7 hereof.]
["Optional Exchange Date" shall mean any Distribution Date on which
all or a portion of Underlying Securities are distributed to the exchanging
Certificateholder(s)]
"Ordinary Expenses" shall have the meaning set forth in the Standard
Terms.
["Other Deposited Assets" shall mean [ ].]
["Other Deposited Assets Agreement" shall mean [ ].]
["Other Deposited Assets Provider" shall mean [ ].]
"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 any 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".
"Prepaid Ordinary Expenses" shall be $[ ] for this Series.
"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 Asset, (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 or early termination of any Other
Deposited Asset, (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".
"Prospectus Supplement" shall mean the Prospectus Supplement, dated
[_______], 20[ ], relating to the Certificates.
"Rating Agency" shall mean [each of] [Moody's, S&P and Fitch.]
"Rating Agency Condition" shall have the meaning specified in the
Standard Terms.
"Record Date" shall mean, with respect to each Distribution Date, the
day immediately preceding the related Distribution Date.
"Required Interest Amount" means [(I) ][for the Class [ ] [Senior]
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 [ ]
[Subordinated] 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).
["Required Percentage-Amendment" shall mean [specify if different
from Standard Terms].]
["Required Percentage-Direction of Trustee" shall mean [specify if
different from Standard Terms].]
["Required Percentage-Remedies" shall mean [specify if different from
Standard Terms].]
["Required Percentage-Removal" shall mean [specify if different from
Standard Terms].]
["Required Premium Amount" shall have the meaning specified in the
Standard Terms.]
["Required Reserve Amount" for each Distribution Date shall mean an
amount equal to [ ].]
["Reserve Account" shall mean that certain account entitled "Series
20[ ]-[ ] Bond Products Depositor Reserve Account," as maintained by the
Trustee on behalf of the Certificateholders.]
["Retained Interest" shall mean the interest of the Depositor as set
forth in Schedule II hereto.]
["Rights Holder" shall mean the holder of the Call Option.]
["S&P" shall mean Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc., and any successor thereto.]
"Series" shall mean the [ ] Trust, Series 20[ ]-[ ].
"Special Distribution Date" shall have the meaning set forth in
Section 5(j) hereof.
"Termination Event" shall have the meaning set forth in Section 9.
["Treasury Rate" shall mean [ ].
"Trust Estate" shall mean the Deposited Assets, [the Call Option],
all amounts on deposit in the Certificate Account [and the Reserve Account],
and the Trust's rights under each agreement to which it (or the Depositor on
its behalf) is a party [(including, without limitation, all Underlying
Securities Agreements, Other Deposited Assets Agreements and the Credit
Support Instruments)].
"Trustee Fee" shall mean the amount paid to the Trustee [by the
Depositor on the Closing Date] [monthly] [by the Trust] [and with respect to
each Distribution Date, any other amounts to be paid to the Trustee on each
such Distribution Date (in each case, other than amounts paid as Extraordinary
Trust Expenses)].
"Underlying Securities" shall mean the Underlying Securities set
forth on Schedule I hereto.
"Underlying Securities Agreements" shall mean any trust agreement,
indenture, pooling and servicing agreement or other agreement or series of
agreements pursuant to which any Underlying Security is issued.
"Underlying Securities Issuers" shall mean the issuers of the
Underlying Securities listed on Schedule I hereto.
"Underwriter[s]" shall mean [ ].
"Underwriting Agreement" shall mean that certain agreement, dated as
of [ ], between the Depositor and [ ] as the [Lead] Underwriter.
"Voting Rights" shall, in the entirety, be allocated among all Class
A-[ ] Certificateholders [and Class A-[ ] Certificateholders] in the
proportion that the then unpaid Certificate Principal Balance of the Class A-[
] [Senior] Certificates bears to [the Accreted Principal Amount of the Class
A-[ ] Certificates] [the Certificate Principal Balance of the Class A-[ ]
[Subordinated] Certificates].
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "[ ], Series 20[ ]-[ ] Trust." The Certificates
evidencing certain undivided ownership interests therein shall be known as "[
] Trust Certificates, Series 20[ ]-[ ]." The Certificates shall consist of
[the Class A-[ ] Certificates and the Class A-[ ] Certificates] [add other
classes of Certificates, if any] (together, the "Certificates"). [The Trust is
also issuing a Call Option to the Rights Holder with respect to the
Certificates.]
(a) The Certificates shall be held through the Depository in
book-entry form and shall be substantially in the forms attached hereto as
Exhibit[s] [B-1], [B-2] [and B-3]. The Class A-[ ] Certificates [and Class A-[
] Certificates] shall be issued in denominations of $[1,000]. [The Class A-[ ]
Certificates shall be issued in minimum denominations of [[$ ] and in integral
multiples of $1,000] in excess thereof.] Except as provided in the Standard
Terms, the Trust shall not issue additional Certificates[, additional Call
Options] or incur any indebtedness.
(b) The Class A-[ ] [Senior] Certificates [and the Class A-[ ]
[Subordinated] Certificates shall have an initial aggregate Certificate
Principal Balance of $[_________]. The Class A-[ ] Certificates have an
initial aggregate Certificate Principal Balance of $[________] and are
expected to accrete to $[ ] by the Final Scheduled Distribution Date.]
(c) The holders of the Class A-[ ] [Senior] Certificates [and the
Class A-[ ] [Subordinated] Certificates] will be entitled to receive on each
Distribution Date, in accordance with Section 5 hereof, the Interest Proceeds,
Principal Proceeds and Premium Proceeds received on the Deposited Assets, to
the extent necessary to pay the Accrued Certificate Interest, principal and
premiums on the Class A-[ ] [Senior] Certificates [and the Class A-[ ]
[Subordinated] Certificates]. [The Class A-[ ] Certificates shall not bear
interest.]
(d) [The Retained Interest will be uncertificated and shall be as
described in Schedule II attached hereto. The Retained Interest will be issued
to the Depositor and may be transferred by the Depositor to another party at
the sole option of the Depositor without the consent of the Certificateholders
or any other party. The beneficial ownership interest in the Retained Interest
will be recorded on the records of the Trustee. On each Distribution Date,
payments will be made on the Retained Interest by wire transfer to the
account(s) of holder(s) thereof on the related Record Date as specified in
written instructions to the Trustee. Notwithstanding any other provision of
this Series Supplement, the Trustee shall not agree to any amendment or
modification of this Series Supplement (including the Standard Terms) which
would adversely affect in any material respect the holder of the Retained
Interest without the consent of the holder of the Retained Interest.]
Section 4. Satisfaction of Conditions to Execution and Delivery of
Trust Certificates.
On the Closing Date, the Certificates shall be executed by the
Trustee and delivered to the Authenticating Agent for authentication on behalf
of the Trust and thereupon be delivered to the Trustee upon the Depositor's
written request and upon receipt by the Trustee of the following:
(a) the Trustee shall have received, on or prior to the Closing Date,
(i) the Underlying Securities set forth on the Underlying Securities Schedule,
and (ii) all documents related to the Deposited Assets which are required to
be delivered to the Trustee pursuant to Section 2.01(b) of the Standard Terms;
(b) an Officer's Certificate of the Depositor (i) evidencing the
authorization by its sole member of the execution and delivery of each of the
Standard Terms, this Series Supplement, [the Other Deposited Assets
Agreements], [the Credit Support Instruments] [and] [the Call Rights
Agreement], [list any agreements with Administrative Agents], the
[Underwriting Agreement], a securities account control agreement, and related
transaction documents, and the execution, authentication and delivery of the
Class A-[ ] [Senior] Certificates and the Class A-[ ] [Subordinated]
Certificates, in each case specifying the Final Scheduled Distribution Date,
the initial Certificate Principal Balance and the applicable Certificate
Interest Rate of each Class of Certificates to be authenticated and delivered
and (ii) certifying that (1) attached is a copy of the resolutions of the
Depositor authorizing the transactions contemplated in the agreements
described in clause (i) above, (2) such document is a true and complete copy
of such resolutions, (3) such resolutions have not been rescinded and are in
full force and effect on and as of the Closing Date, and (4) the Executive
Officers of the Depositor which are authorized to execute and deliver such
documents hold the offices and have the signatures indicated thereon;
(c) either (i) an Officer's Certificate of the Depositor or other
official document evidencing the due authorization, approval or consent of any
governmental body or bodies, at the time having jurisdiction over the
Depositor, together with an Opinion of Counsel of the Depositor that the
authorization, approval or consent of no governmental body is required for the
valid issuance of the Certificates, or (ii) an Opinion of Counsel of the
Depositor to the effect that no consent or approval of, or other action by,
any administrative or governmental body which has not been obtained or taken,
is required for the valid issuance of the Class A-[ ] [Senior] Certificates or
the Class A-[ ] [Subordinated] Certificates;
(d) opinions of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to
the Depositor, dated as of the Closing Date, relating to (i) certain corporate
matters, (ii) the security interest in the Trust Estate granted to the Trust
under the Trust Agreement and providing that such security interest shall be a
perfected security interest, and (iii) certain tax matters;
(e) opinion of [ ], counsel to the Trustee, dated as of the Closing
Date, as to certain corporate matters, dated as of the Closing Date;
(f) [opinion of [ ], counsel to [Other Deposited Assets Provider],
dated as of the Closing Date, as to certain corporate matters which is
satisfactory in form and substance to the Depositor and to the Trustee;]
(g) [opinion of [ ], counsel to [Credit Support Provider], dated as
of the Closing Date, as to certain corporate matters which is satisfactory in
form and substance to the Depositor and to the Trustee;]
(h) [an Officer's Certificate of the Depositor stating that the
issuance of the Class A-[ ] [Senior] Certificates and the Class A-[ ]
[Subordinated] Certificates will not result in a breach of any of the terms,
conditions or provisions of, or constitute a default under, any trust
agreement, indenture, mortgage, deed of transfer or other agreement or
instrument to which the Depositor is a party or by which the Depositor is
bound or to which the Depositor is subject, or, the Depositor's Organizational
Documents or any order of any court or administrative agency entered in any
proceeding to which the Depositor is a party or by which the Depositor is
bound or to which the Depositor is subject; that all conditions precedent
provided in this Section 4 and all other conditions precedent described in the
Standard Terms relating to the authentication and delivery of the Certificates
have been complied with;]
(i) an executed counterpart of this Series Supplement, the Standard
Terms, the [Other Deposited Assets Agreements][,] [Credit Support Instruments]
[the Call Rights Agreement], [Market Agent Agreement], and any Administrative
Agreements executed as of the Closing Date;
(j) the Depositor shall have delivered to the Trustee an Officer's
Certificate of the Depositor to the effect that attached thereto is (i) a true
and correct copy of a letter signed by [name of Rating Agency] and confirming
that the Class A-[ ] [Senior] Certificates [and the Class A-[ ] [Subordinated]
Certificates] have been rated at least [" "] by [name of Rating Agency] and
that such ratings are in full force and effect on the Closing Date [and (ii) a
true and correct copy of a letter signed by [name of Rating Agency] and
confirming that the Class A-[ ] [Senior] Certificates [and the Class A-[ ]
[Subordinated] Certificates] have been rated at least [" "] by [name of Rating
Agency], and that such ratings are in full force and effect on the Closing
Date;
(k) a request from the Depositor directing the Authenticating Agent
to authenticate the Class A-[ ] [Senior] Certificates and the Class A-[ ]
[Subordinated] Certificates in the amounts set forth therein, registered in
the names set forth therein or as otherwise provided to the Trustee by the
Depositor or at its direction, and to make delivery thereof to the Depositor
or as it may otherwise direct therein;
(l) [an Accountant's Certificate in form and substance acceptable to
the Depositor and which confirms certain information with respect to the
Prospectus Supplement specifying the procedures undertaken by them to review
data and computations relating to the information contained in the Prospectus
Supplement;]
(m) the Trustee shall have certified as to the establishment of the
Certificate Account [and the Reserve Account];
(n) [written instructions by the Depositor to the Trustee directing
the Trustee to enter into and perform any obligations under [the Other
Deposited Assets Agreement] [the Credit Support Instrument] [the Call Rights
Agreement] [and], [the Market Agent Agreement, as applicable;]
If all the Certificates are not to be originally issued at the same
time, then the documents required to be delivered pursuant to this Section 4
must be delivered only once, prior to the authentication and delivery of the
first Certificate of such Series; provided, however, that any subsequent
Depositor Order to the Trustee to authenticate Certificates of such Series
upon original issuance shall constitute a representation and warranty by the
Depositor that, as of the date of such request, the statements made in this
Section 4 shall be true and correct as if made on such date; and
(o) such other documents as the Trustee may reasonably require.
Section 5. Distributions. (a) On each applicable Distribution Date,
the Trustee shall distribute the Available Funds in the Certificate Account,
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] [Credit Support Agreement]];
(iii) to the Class A-[ ] Certificateholders, the Accrued
Certificate Interest for the Class A-[ ] [Senior]
Certificates;
(iv) to the Class A-[ ] Certificateholders, the Accrued
Certificate Interest for the Class A-[ ] [Subordinated]
Certificates;
(v) [to the Reserve Account, an amount equal to [the
Required Reserve 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 A-[ ] Certificateholders, up to the Class
A-[ ] Certificate Principal Balance; and
(iii) to the Class A-[ ] Certificateholders, up to the Class
A-[ ] Certificate Principal Balance;
(c) the Trustee will apply Premium Proceeds (if any) as follows:
(i) to the Class A-[ ] Certificateholders, [in the
proportion that the Certificate Principal Balance of the
Class A-[ ] [Senior] Certificates bears to the
Certificate Principal Balance of the Class A-[ ]
[Subordinated] Certificates];
(ii) to the Class A-[ ] Certificateholders, [in the
proportion that the Certificate Principal Balance of the
Class [ ] [Senior] Certificates bears to the Certificate
Principal Balance of the Class [ ] [Subordinated]
Certificates]; and
(iii) the remainder, if any, to the Depositor.
(d) [Distributions of interest on the Certificates shall be deferred
in the event of the deferral of payments on the Underlying Securities.
Distributions on the Underlying Securities may be deferred pursuant to the
Underlying Securities Agreements for up to [ten (10)] consecutive
[semi-annual] interest periods (each a "Deferral Period") provided that no
Deferral Period may extend beyond the Final Scheduled Maturity Date. During
any Deferral Period, interest on the Underlying Securities will continue to
accrue at the applicable rate per annum [compounded [semi-annually]. However,
since interest that accrues on deferred and compounded interest on the
Underlying Securities may not be sufficient to pay interest at the otherwise
applicable Class A-[ ] Certificate Rate [and the Class A-[ ] Certificate
Rate], applicable to deferred and compounded interest on the Certificates,
deferred and compounded interest on the Certificates will be deemed to be owed
only to the extent that such interest is actually received by the Trustee on
the Underlying Securities.]
(e) [Notwithstanding any other provision hereof, Liquidation Proceeds
received in respect of the Deposited Assets prior to the Final Scheduled
Distribution Date following (i) the liquidation of a defaulted Underlying
Security and any related collateral, (ii) the repurchase, substitution or sale
of an Underlying Security, or (iii) the termination of, or the occurrence of a
default under, any Other Deposited Asset or any Credit Support Instrument.,
shall be distributed [in accordance with the priority of payments specified in
Section 5(a) hereof] [as follows: [ ].]
(f) To the extent Available Funds are insufficient to make any
required payments of interest due to any Class of Certificates on any
Distribution Date, any shortfall will be carried over and will be distributed
on the next Distribution Date on which sufficient Available Funds are on
deposit in the Certificate Account to pay such shortfall.
(g) [Realized Losses on the Trusts Assets shall be allocated among
the Certificates as follows: [ ].]
(h) [Advances shall be made by the Trustee in accordance with Section
4.04 of the Standard Terms as follows: [ ].]
(i) If a payment with respect to any Underlying Security is made to
the Trustee after the scheduled payment date for such Underlying Security,
then the Trustee will distribute any such amounts received on the next
succeeding Business Day (a "Special Distribution Date") as if the funds had
constituted Available Funds on the most recent Distribution Date immediately
preceding such Special Distribution Date.
Section 6. Trustee's Fees. (a) As compensation for its services
hereunder, the Trustee shall be entitled to the Trustee Fee. [The Trustee Fee
shall be paid by the Depositor and not from the Deposited Assets. On each
Distribution Date the Trustee shall be paid by the Depositor [one-twelfth],
[one-quarter], [one half] of the annual Trustee's Fee. [The Trustee Fee shall
be payable by the Trust in equal [monthly] [quarterly] [semi-annual]
installments from the Deposited Assets on each Distribution Date.] [The
Trustee shall bear all Ordinary Expenses]. [Failure by the Trust to pay such
amount 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.]
(b) Extraordinary Trust Expenses shall not be paid out of the Trust
Property unless [100%] of the Certificateholders of each of the Class A-[ ]
[Senior] Certificates and the Class A-[ ] [Subordinated] Certificates then
Outstanding vote to require the Trustee to incur such Extraordinary Trust
Expenses. The Trustee may incur other Extraordinary Trust Expenses if any
lesser percentage of the Certificateholders requesting such action pursuant
hereto reimburse the Trustee for the cost thereof from their own funds in
advance. If Extraordinary Trust Expenses are not approved unanimously as set
forth in the first sentence of this Section 6(b), such Extraordinary Trust
Expenses shall not be an obligation of the Trust, and the Trustee shall not
file any claim against the Trust therefor notwithstanding any failure of
Certificateholders to reimburse the Trustee.
Section 7. [Optional Exchange]; [Call Option]; [Early Termination]
(a) [Optional Exchange.] On each Distribution Date (or, if the
Depositor or an Affiliate of the Depositor holds all of the Certificates, on
any other date) any holder of Class A-[ ] [Senior] Certificates of a certain
principal amount and Class A-[ ] [Subordinated] Certificates representing a
like percentage of the principal amount thereof, may tender such Certificates
to the Trustee on such date and receive a distribution of Underlying
Securities representing a like percentage of the Underlying Securities to the
percentages of the Class A-[ ] Certificates being tendered by such
Certificateholder to the Trustee; provided, however, that any such exchange
right shall be exercisable only (a) to the extent that the Depositor provides,
upon the Trustee's request, an opinion of counsel that such exchange would not
(x) affect the characterization of the Trust as a "grantor trust" for federal
income tax purposes, or (y) cause the Trust to be required to be registered as
an investment company under the Investment Company Act, and (b) to the extent
permitted under Section 7(a)(iii) hereof.
(i) The Certificateholder must provide notice to the Trustee
(an "Exchange Request") no less than fifteen (15) days
(or such shorter period acceptable to the Trustee) but
not more than thirty (30) days prior to an Optional
Exchange Date that it requests an Optional Exchange of
its Certificates on such Optional Exchange Date.
(ii) The Trustee shall not be obligated to determine whether
an Optional Exchange complies with the applicable
provisions for exemption under Rule 3a-7 of the
Investment Company Act.
(iii) Any such Optional Exchange by a Certificateholder will
be subject to the following restrictions: (a)
certification by the Certificateholder to the Trustee
that any Certificates to be exchanged have been held for
a minimum of six months and (b) each Optional Exchange
is limited in amount to a maximum of [5%] (except for
Certificates acquired by the Underwriter but never
distributed to investors, in which case [25%]) of the
then [Certificate Principal Balance] [Accreted Principal
Amount] of the Class A-[ ] Certificates, provided,
however, that such -------- ------- restrictions shall
not apply to the exchange of Certificates that were
acquired pursuant to Section 7(b).]
(iv) This Section 7 shall not provide any Certificateholder
with a lien against, an interest in or a right to
specific performance with respect to the Underlying
Securities.
(b) Call Option. On any Call Date, the Rights Holder or an affiliate
thereof may exercise the Call Option and acquire the Certificates in whole or
in part, at the Call Price, upon payment of the Call Price on or prior to such
Call Date in accordance with the provisions of Section 4.08 of the Standard
Terms.
[add any other relevant information about the Call Option for this
Series]]
(c) [Early Termination.] [The Depositor may, at its sole option,
purchase the Underlying Securities and effect an early termination of the
Certificates on any Distribution Date on or after the date on which the
aggregate outstanding principal amount of such Underlying Securities is
reduced to less than [ten percent (10%)] [specify other amount] of the
aggregate principal amount of the Underlying Securities as of the Cut-Off
Date; provided, however, that prior to such purchase, the Depositor must
deliver to the Trustee an Opinion of Counsel which provides that such purchase
by the Depositor is consistent with Rule 3a-7 of the Investment Company Act
and all applicable rules, regulations and interpretations thereunder. The
purchase price payable by the Depositor in such event shall be not less than
the aggregate outstanding principal amount of such Underlying Securities on
the date of purchase.]
Section 8. Underlying Security Events of Default, Reporting Failures
or Exchanged Securities.
(a) Notice to Certificateholders. Within thirty (30) days of the
occurrence of an Event of Default in respect of any Underlying Security, the
Trustee will give notice to the Certificateholders [name any other person to
receive notice] [and the holder of the Retained Interest] transmitted by mail,
of all such uncured or unwaived Events of Default known to it. However, except
in the case of an Event of Default relating to the payment of principal, if
any, or interest 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 interests of the Certificateholders.
(b) Realization Upon Defaulted Deposited Assets or Exchanged
Securities. Notwithstanding any other provision hereof, (A) in the event of
the occurrence of (i) an Event of Default with respect to any Underlying
Security (ii) an acceleration of the date of maturity of any Underlying
Security in connection with a default thereon, or (B) upon the exchange by an
Underlying Securities Issuer of an Underlying Security for a new security, the
Depositor shall, within __ days of the occurrence of such event [instruct the
Trustee to make a distribution "in-kind" of the related 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 an "in-kind" distribution to the Certificateholders, the provisions of
Section 8(c) below will apply.
(c) "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 or (y) have the Depositor (or its
Affiliate) sell their allocable share of such Underlying Security (or security
received in exchange for any 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 (or security received in
exchange for any Underlying Security). If as a result of any minimum
denomination requirements applicable to the Underlying Securities (or
securities received in exchange for any Underlying Securities), the Trustee
cannot make a full distribution to such Certificateholders of their pro rata
share of such Underlying Securities (or securities received in exchange for
any Underlying Securities), the Depositor will instruct the Trustee to direct
the Market Agent to sell, in accordance with the Bidding Procedures described
below under "Collections - Bidding Procedures," the portion of such securities
which cannot be sold in compliance with the applicable minimum denomination
requirements. The amount of the Underlying Securities (or securities received
in exchange for any Underlying Securities), to be sold by the Market Agent
will equal the difference between such Certificateholder's pro rata share of
such Underlying Securities (or securities received in exchange for any
Underlying Securities), held by the Trust and the maximum amount of such
Underlying Securities (or securities received in exchange for any Underlying
Securities), that can be distributed to such Certificateholder in compliance
with the applicable minimum denomination requirements with respect to such
Underlying Securities (or securities received in exchange for any Underlying
Securities).
(d) Sale by the Depositor. In the event the Underlying Securities (or
securities received in exchange for any 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 such Underlying Securities (or securities received in exchange for any
Underlying Securities), in accordance with the Bidding Procedures described
below under "Collections - Bidding Procedures" and upon disposition of such
Underlying Securities (or securities received in exchange for any Underlying
Securities), the Trustee will distribute the proceeds of such sale to the
Certificateholders.
(e) Bidding Procedures. Prior to selling any Underlying Securities
(or securities received in exchange for any 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 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 a 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 (or security received in exchange for any
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 (or
security received in exchange for any 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 (or security received in exchange for any Underlying Security),] the
Trustee shall distribute such 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 (or
securities received in exchange for any Underlying Securities), have been
sold.
(f) Liquidated Underlying Securities. If an Underlying Security (or
security received in exchange for any Underlying Security) is liquidated and
the proceeds of such liquidation are less than the sum of (i) the outstanding
principal balance of the Underlying Security (or security received in exchange
for any 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 an amount equal to such difference. The Trustee will be entitled to
withdraw or cause to be withdrawn from the net proceeds recovered on any
Underlying Security (or security received in exchange for any Underlying
Security), prior to the distribution of such proceeds to Certificateholders,
amounts representing its compensation with respect to such Underlying Security
(or security received in exchange for any Underlying Security), including
unreimbursed administrative expenses incurred to liquidate such Underlying
Security (or security received in exchange for any Underlying Security) and
any unreimbursed advances of delinquent payments made with respect to such
Underlying Security (or security received in exchange for any Underlying
Security).
(g) Underlying Securities Reporting Failure. In the event an issuer
of an Underlying Security (the outstanding principal balance of which is equal
to or in excess of ten percent (10%) of the aggregate principal balance of the
Deposited Assets) 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 thirty (30) days after the
earlier of (i) the date the Underlying Securities Issuer shall have stated in
writing that it intends to permanently cease filing periodic reports required
to be filed under the Exchange Act and (ii) the date the Underlying Securities
Issuer failed 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 provisions
of Section 8(c) above will apply with respect to such distribution.
Section 9. Termination Events.
(a) "Termination Events" shall mean any one of the following events
(whatever the reason for such Termination Event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) [the failure by the Trust to pay the Required Interest
Amount on the Class A-[ ] [Senior] Certificates or the
Class A-[ ] [Subordinated] Certificates when due and
payable and such failure continues unremedied for thirty
(30) Business Days;]
(ii) [on any Distribution Date, a default in the payment to
the Certificateholders of the Principal Proceeds
received by the Trustee or a default in the payment in
full of the Certificate Principal Balance of the Class
A-[ ] [Senior] Certificates or the [Certificate
Principal Balance] [Accreted Principal Amount] of the
Class A-[ ] Certificates on the Final Scheduled
Distribution Date;]
(iii) [the entry of a decree or order by a court having
jurisdiction over the Trust, adjudging the Trust as
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Trust under any
Bankruptcy Law, or appointing a receiver, liquidator,
assignee, or sequestrator (or other similar official) of
the Trust or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed
and in effect for a period of [sixty (60)] consecutive
days; ]
(iv) [the institution by the Trust of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by
the Trust to the institution of bankruptcy or insolvency
proceedings against it, or the filing by the Trust of a
petition or answer or consent seeking reorganization or
relief under any Bankruptcy Law, or the consent by
either the Trust to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of
the Trust or of any substantial part of its property, or
to the ordering of the winding up or liquidation of its
affairs, or the making by the Trust of an assignment for
the benefit of creditors, or the admission by the Trust
in writing of its inability to pay its debts generally
as they become due, or the taking of any action by the
Trust in furtherance of any such action;]
(v) [a failure on the part of the Trust to perform any
covenant of the Trust which failure has a material
adverse effect on the Certificateholders and which
continues unremedied for a period of sixty (60) days
after written notice thereof shall have been given by
registered mail, certified mail or overnight courier to
the Trustee by the Depositor or the Holders of at least
[50%] of the Outstanding Certificates;]
(vi) the Trust becomes an "investment company" required to
register under the Investment Company Act; or
(vii) a failure on the part of the Trust to pay any amount
payable under the terms of any [Other Deposited Asset]
[Credit Support].
(b) Acceleration of Maturity .
If a Termination Event described in clauses (iii) or (iv) above were
to occur and be continuing, the Certificate Principal Balance [or Accreted
Principal Amount, as applicable,] 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 in any of the
remaining clauses in Section 9(a) 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] [and/or] [Accreted Principal Amount] due on 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.
Upon the declaration of a Termination Event hereunder, the Trustee
will deliver a Notice of Termination Event to the Certificateholders which
specifies the nature of the Termination Event which has occurred and the
percentage of Certificateholders voting to declare a Termination Event
hereunder, if applicable. Upon the declaration of a Termination Event, the
Trustee (acting on the behalf of and at the direction of [the holders of more
than [50%] of the Certificate Principal Balance of the Certificates]) will
direct the remedies to be exercised on behalf of the Certificateholders. If
the Certificates are accelerated and the Certificateholders direct the Trustee
to sell the Deposited Assets, the Class A-[ ] Certificateholders shall be
entitled to receive the outstanding Class A-[ ] Certificate Principal Balance
of such Certificates together with accrued and unpaid interest thereon and the
Class A-[ ] Certificateholders shall be entitled to receive [Accreted
Principal Amount] [Certificate Principal Balance] of such Certificates
[together with accrued and unpaid interest thereon], to the extent of
Available Funds, which amounts shall be applied [in accordance with Section 5
hereof][ as follows: [ ]]. At any time after an acceleration of maturity has
been made as provided above, such declaration may be rescinded in accordance
with the terms of Section [ ] of the Standard Terms.
Section 10. Reports of Independent Public Accountants.
[Reports of the Trust's independent public accountants shall be
provided as specified in Section [ ] of the Standard Terms beginning in
calendar year 20[ ].]
Section 11. Miscellaneous.
(a) [The provisions of Section 4.04, Advances, of the Standard Terms
shall not apply to the Series 20[ ]-[ ] Certificates;]
(b) [The provisions of Section 4.07 of the Standard Terms "Optional
Exchange" shall not apply to the Series 20[ ]-[ ] Certificates;]
(c) The Trustee shall simultaneously forward reports to
Certificateholders [and to the New York Stock Exchange] in accordance with
Section 4.03 of the Standard Terms. [In addition, the Trustee shall forward
reports to [specify others to receive reports].
(d) [Except as expressly provided herein, the Certificateholders
shall not be entitled to terminate the Trust or cause the sale or other
disposition of the Underlying Securities.]
(e) If the Trustee has not received payment with respect to a
Collection Period on any Deposited Asset on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of
such payment. [No additional amounts shall accrue on the Certificates or be
owed to Certificateholders as a result of such delay; provided, however, that
any additional interest owed and paid by Underlying Securities Issuers [Other
Deposited Assets Providers] [Credit Support Providers] as a result of such
delay shall be paid to the Certificateholders, proportionately to the ratio of
their respective entitlements to interest.]
(f) The Trust may not engage in any business or activities other than
in connection with, or relating to, the acquiring, holding, protecting and
preserving of the Deposited Assets and the issuance of the Certificates, and
other than those required or authorized by the Trust Agreement or incidental
and necessary to accomplish such activities. The Trust may not issue or sell
any certificates or other obligations other than the Certificates or otherwise
incur, assume or guarantee any indebtedness for money borrowed.
(g) In the event that the Internal Revenue Service challenges the
characterization of the Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application
of Subchapter K of the Code and is hereby empowered to execute such forms on
behalf of the Certificateholders.
(h) Notwithstanding anything in the Standard Terms to the contrary,
the Trustee, upon written direction by the Depositor, will execute the
Certificates.
(i) Except as specified in the Trust Agreement, the Trustee will have
no recourse to the Deposited Assets.
(j) The Trust will not merge or consolidate with any other entity
without (i) confirmation from each Rating Agency that such merger or
consolidation will not result in the qualification, reduction or withdrawal of
its then-current rating on the Certificates and (ii) an opinion of counsel
that such merger (x) will not cause the Trust to be required to register as an
investment company under the Investment Company Act, and (y) will not
adversely affect the Trust's status as a Grantor Trust.
(k) Notices. All directions, demands and notices hereunder or under
the Standard Terms shall be in writing and shall be delivered as set forth
below (unless written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Bond Products Depositor LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: Stephen K. Stegemeyer, Manager, Bond Products Depositor LLC
Telephone: (704) 388-4811
Facsimile: (704) 386-3522
If to the Trustee, to:
[To Come]
If to the Rating Agencies, to:
[Moody's Investors Service, Inc.]
[99 Church Street]
[New York, New York 10007]
Attention: [CBO/CLO Monitoring Department]
Telephone: [(212) 553-1494]
Facsimile: [(212) 553-0355]
[Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc.]
[55 Water Street]
[New York, New York 10041]
Attention: [Structured Finance Surveillance Group]
Telephone: [(212) 438-2482]
Facsimile: [(212) 438-2664]
[Fitch, Inc.]
[One State Street Plaza]
[New York, New York 10004]
Telephone: (212) ____________
Facsimile: (212) ____________
[If to the New York Stock Exchange, to:]
[New York Stock Exchange, Inc.]
[20 Broad Street]
[New York, New York 10005]
[Attention: Michael Hyland]
[Telephone: (212) 656-5868]
[Facsimile: (212) 656-6919]
Section 12. Counterparts. This Series Supplement may be executed in
any number of counterparts, each of which shall be deemed to be an original,
and all such counterparts shall constitute but one and the same instrument.
Section 13. Termination of the Trust. (a) The respective obligations
and responsibilities under the Trust Agreement of the Depositor and the
Trustee (other than the obligations of the Trustee to provide information
reports and information tax reporting), shall terminate upon the earlier to
occur of the (i) distribution to the Certificateholders of all amounts held in
all the Accounts and required to be paid to such Certificateholders pursuant
to this Series Supplement on the Distribution Date succeeding the final
payment on, or other liquidation of (which may include redemption or other
purchase thereof by the applicable Underlying Securities Issuer), the last
Underlying Security remaining in the Trust or the disposition of all property
acquired upon liquidation of any such Underlying Security [and the termination
of all Other Deposited Assets and Credit Support,] and (ii) distribution in
full of all amounts due to the Class A-[ ] and Class A-[ ] Certificateholders.
(b) The Trustee shall provide written notice of any termination to
the Certificateholders.
(c) Upon presentation and surrender of the Certificates by the
Certificateholders to the Trustee at the locations specified in the Standard
Terms on the Final Scheduled Distribution Date or the Distribution Date
succeeding the earlier to occur of the occurrences specified in Section 13(a)
above, the Trustee shall, upon its cancellation of each surrendered
Certificate, the Trustee will distribute to each Holder presenting and
surrendering its Certificates, the amount otherwise distributable on such
Distribution Date in respect of the Certificates so presented and surrendered.
Any funds not distributed on such Distribution Date shall be set aside and
held in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner. Immediately following
the deposit of funds in trust hereunder, this Trust shall terminate.
Section 14. [Reserved].
Section 15. [Voting of Underlying Securities, Modification of
Underlying Securities Agreements. The Trustee, as holder of the Deposited
Assets, has the right to vote and give consents and waivers in respect of the
Underlying Securities in accordance with the rules of the Depository and
except as otherwise limited by the Trust Agreement. In the event that the
Trustee receives a request from the Depository or the issuer or the trustee of
any Underlying Security for consent to any amendment, modification or waiver
of any provision of the related Underlying Securities Agreement or any other
document relating thereto, or receives any other solicitation for any 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 whether or not to consent to or
vote to accept such amendment, modification, waiver or solicitation. The
Trustee shall consent or vote, or refrain from consenting or voting, in the
same proportion (based on the relative outstanding principal balances of the
Certificates) 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 in the Trust Agreement to the
contrary, the Trustee shall at no time vote on or consent to any matter (i) if
the effect of the action to be taken pursuant to such vote or consent would
(based on an opinion of counsel) alter the status of the Trust as a grantor
trust for federal income tax purposes or result in the imposition of tax upon
the Certificateholders, [(ii) alter the timing or amount of any payment on any
item of the Deposited Assets, including, without limitation, any demand to
accelerate the Underlying Securities, except in the event of a default on any
of the Underlying Securities or an event which with the passage of time would
become an event of default under the Underlying Securities and with the
[unanimous consent] of all outstanding Class A-[ ] Certificateholders and
Class A-[ ] Certificateholders,] or [(iii) 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 and only
with the consent of Certificateholders representing [100%] of the Class A-[ ]
[Senior] Certificates and [100%] of the Class A-[ ] [Subordinated]
Certificates.] The Trustee shall have no liability for any failure to act
resulting from Certificateholders' 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
Issuers to issue new obligations in exchange and substitution for any of the
Underlying Securities, pursuant to a plan for the refunding or refinancing of
the Outstanding Underlying Securities or any other offer is made for the
Underlying Securities, the Trustee shall notify the Class A-[ ]
Certificateholders and the Class A-[ ] Certificateholders of such offer
promptly. The Trustee must reject any such offer unless the Trustee is
directed by the affirmative vote of the holders of [100%] of the Class A-[ ]
[Senior] Certificates and the Class A-[ ] [Subordinated] Certificates to
accept such offer and the Trustee has received the tax opinion described
above.] Any security received by the Trustee in exchange for an Underlying
Security must either be sold or distributed "in kind" by the Trustee in
accordance with the procedures for a sale or "in kind" distribution set forth
in Section 8 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of
the date first written above.
BOND PRODUCTS DEPOSITOR LLC,
as Depositor
By:
---------------------------------
Name:
Title:
[NAME OF TRUSTEE]
not in its individual capacity
but solely as Trustee on behalf
of the Trust Certificates Series,
20[ ]-[ ] Trust
By:
----------------------------------
Name:
Title:
ANNEX I
AUCTION PROCEDURES
ARTICLE 1
SECTION 1.1 DEFINITIONS.
"All Hold Rate" means [ ].
"Auction" means with respect to each Class of Auction Rate
Certificates, the implementation of the Auction Procedures on an Auction Date
for such Class.
"Auction Agent" means [ ], a [ ], or any successor appointed
under the Auction Agent Agreement.
"Auction Agent Agreement" means the Auction Agent Agreement
dated as of the Closing Date, among the Trustee, the Auction Agent and the
Depositor, including any amendment thereof or supplement thereto.
"Auction Agent Fee" means the fee paid to the Auction Agent
pursuant to the Auction Agent Agreement.
"Auction Rate Certificate[s]" means the Class [ ] Certificates
[and the Class [ ] Certificates].
"Auction Date" means, with respect to each class of Auction
Rate Certificates, the third Business Day immediately preceding the first day
of each Interest Accrual Period, commencing [ ], 2003. Notwithstanding the
foregoing, the Auction Date for one or more Interest Accrual Periods may be
changed pursuant to the Auction Agent Agreement, as described herein.
"Auction Procedures" means the procedures set forth in Section
2.1.1 hereof by which the Auction Rate is determined.
"Auction Rate" means with respect to a Class of Auction Rate
Certificates, the rate of interest per annum that results from implementation
of the Auction Procedures.
"Auction Spread Amount" means with respect to each Class of
Auction Rate Certificates, the highest Bid Spread Amount contained in the
Clearing Bids selected on any Auction Date with respect to such Class in
accordance with the Auction Procedures.
"Authorized Denominations" means, with respect to each Class of
Auction Rate Certificates, [$25,000] and integral multiples of [$25,000] in
excess thereof.
"Available Certificates" has the meaning set forth in Section
2.1.1(b)(i)(A) hereof.
"Bid" has the meaning set forth in Section 2.1.1(a)(i) hereof.
"Bid Spread Amount" means the spread over [describe index]
requested by a Bidder.
"Bidder" has the meaning set forth in Section 2.1.1(a)(i)
hereof.
"Book-Entry Form" or "Book-Entry System" means a form or system
under which (i) the beneficial right to principal and interest may be
transferred only through a book entry, (ii) physical securities in registered
form are issued only to a Depository or its nominee as registered owner, with
the securities "immobilized" to the custody of the Depository, and (iii) the
book entry is the record that identifies the owners of beneficial interests in
that principal and interest.
"Broker-Dealer" means [BAS Affiliate] or any other broker or
dealer (each as defined in the Securities Exchange Act of 1934, as amended),
commercial bank or other entity permitted by law to perform the functions
required of a Broker-Dealer set forth in the Auction Procedures that (a) is a
Participant (or an Affiliate of a Participant), (b) has been appointed as such
by the Depositor and (c) has entered into a Broker-Dealer Agreement that is in
effect on the date of reference.
"Broker-Dealer Agreement" means each agreement among the
Auction Agent, a Broker-Dealer and the Depositor, pursuant to which the
Broker-Dealer agrees to participate in Auctions in accordance with the Auction
Procedures.
"Broker-Dealer Fee" means the fee paid to a Broker-Dealer
pursuant to its Broker-Dealer Agreement.
"Class" means the Class [ ] Certificates or the Class [ ]
Certificates, as applicable.
"Clearing Bids" refers to those Bids selected in accordance
with the procedures set forth in Section 2.1.1(b)(i)(c) hereof.
"Depositor" means Bond Products Depositor LLC, a Delaware
limited liability company.
"Existing Certificateholder" means with respect to an Auction,
a Person who is a beneficial owner of Auction Rate Certificates as of the
close of business on the Business Day immediately preceding the Auction Date.
"Failed Auction" shall have the meaning set forth in Section
2.1.1(b)(iii) hereof.
"Hold Order" shall have the meaning set forth in Section
2.1.1(a)(i) hereof.
"Maximum Auction Rate" means, with respect to each Class of
Auction Rate Certificates [select one of the following], [[ ]%], [Describe
Index] plus [ ]%], [(A) [Describe Index]] plus [ ]% (if the ratings assigned
by the Rating Agencies to such Class are "AAA" and "Aaa"), (B) [Describe
Index] plus [ ]% (if the ratings assigned by the Rating Agencies to such Class
are "AA" and "Aa2" or better), (C) [Describe Index] plus [ ]% (if the ratings
assigned by the Rating Agencies to such Class are "A" and "A2" or better) or
(D) [Describe Index] plus [ ]% (if any one of the ratings assigned by the
Rating Agencies to such Class is less than "A" or "A2").] For purposes of the
Auction Agent and the Auction Procedures, the ratings referred to in this
definition shall be the last rating of which the Auction Agent has been given
notice pursuant to the Trust Agreement and the Auction Agent Agreement.
"Order" shall have the meaning set forth in Section 2.1.1(a)(i)
hereof.
"Outstanding" means, as of the date of determination, all
Certificates of a Class theretofore authenticated and delivered under the
Trust Agreement other than: (i) Certificates of such Class theretofore
cancelled by the Certificate Registrar or delivered to the Certificate
Registrar for cancellation, (ii) Certificates of such Class or portions
thereof the payment for which money in the necessary amount has been
theretofore deposited with the Trustee in trust for the Certificateholders
thereof, and (iii) Certificates of such Class in exchange for or in lieu of
other Certificates of such Class which have been authenticated and delivered
pursuant to the Trust Agreement unless proof satisfactory to the Trustee is
presented that any such Certificates are held by a bona fide purchaser.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time, the Depository effects
Book-Entry transfers and pledges of securities deposited with the Depository.
"Potential Certificateholder" means any Person (other than an
Existing Certificateholder) who is interested in acquiring Auction Rate
Certificates.
"Sell Spread Amount" means the spread over [describe the index]
indicated by an Existing Certificateholder pursuant to its Sell Order.
"Sell Order" has the meaning set forth in Section 2.1.1(a)(i)
hereof.
"Submission Deadline" means 1:00 p.m., Eastern Standard Time,
on any Auction Date or such other time on any Auction Date by which
Broker-Dealers are required to submit Orders to the Auction Agent as specified
by the Auction Agent from time to time.
"Submitted Bid" has the meaning set forth in Section
2.1.1(b)(i) hereof.
"Submitted Hold Order" has the meaning set forth in Section
2.1.1(b)(i) hereof.
"Submitted Order" has the meaning set forth in Section
2.1.1(b)(i) hereof.
"Submitted Sell Order" has the meaning set forth in Section
2.1.1(b)(i) hereof.
"Substitute Auction Agent" means the Person with whom the
Trustee enters into a Substitute Auction Agent Agreement.
"Substitute Auction Agent Agreement" means an auction agent
agreement containing terms substantially similar to the terms of the Initial
Auction Agent Agreement, whereby a Person having the qualifications required
by Section 2.1.4 of these Auction Procedures agrees with the Trustee to
perform the duties of the Auction Agent under this Agreement.
"Sufficient Bids" has the meaning set forth in Section
2.1.1(b)(i)(E) hereof.
"Trustee" means [name of trustee].
SECTION 1.2 GENERAL PROVISIONS.
Each Class of Auction Rate Certificates shall bear interest at
the applicable Auction Rate. For each Interest Accrual Period, interest at the
applicable Auction Rate shall accrue daily and shall be computed for the
actual number of days elapsed in the related Interest Accrual Period on the
basis of a year consisting of 360 days.
The Auction Agent shall promptly give written notice to the
Trustee and the Depositor of the applicable Auction Rate for each Class of
Auction Rate Certificates. The Trustee shall notify the Certificateholders of
the applicable Auction Rate for the related Interest Accrual Period no later
than 5:00 p.m. Eastern Standard Time on the first Business Day of such
Interest Accrual Period; provided it has previously received notice of such
Auction Rate from the Auction Agent.
ARTICLE 2
SECTION 2.1 AUCTION RATE.
SECTION 2.1.1 DETERMINING THE AUCTION RATE FOR THE AUCTION RATE
CERTIFICATES.
By purchasing an Auction Rate Certificate, whether in an
Auction or otherwise, each such purchaser and its Broker-Dealer shall be
deemed by such purchase to have agreed (i) to participate in Auctions on the
terms described herein, (ii) to have its beneficial ownership of the Auction
Rate Certificates maintained at all times in Book-Entry Form through the
account of its Participant, which in turn will maintain records of such
beneficial ownership, and (iii) to authorize such Participant to disclose to
the Auction Agent information with respect to such beneficial ownership as the
Auction Agent may request.
An Existing Certificateholder may sell, transfer or otherwise
dispose of Auction Rate Certificates pursuant to a Sell Order placed in an
Auction or otherwise through a Broker-Dealer, provided that, in the case of
all transfers other than pursuant to an Auction, such Existing
Certificateholder, its Broker-Dealer or its Participant shall advise the
Auction Agent of such transfer. Auctions shall be conducted on each applicable
Auction Date in the following manner:
(a) (i) Prior to the Submission Deadline on each related
Auction Date:
(A) each Existing Certificateholder may submit to a
Broker-Dealer (by telephone or otherwise) information as to:
(1) the principal amount of the Outstanding class owned
by such Existing Certificateholder which such Existing
Certificateholder desires to continue to own without regard to
the Auction Spread Amount for such Class for the next
succeeding Interest Accrual Period;
(2) the principal amount of the Outstanding Class owned
by such Existing Certificateholder which such Existing
Certificateholder offers to sell if the Auction Spread Amount
for such Class for the next succeeding related Interest Accrual
Period shall be less than the Sell Spread Amount specified by
such Existing Certificateholder;
(3) the principal amount of the Outstanding Class owned
by such Existing Certificateholder which such Existing
Certificateholder offers to sell without regard to the Auction
Spread Amount for such Class for the next succeeding related
Interest Accrual Period; and/or
(4) the principal amount of the Outstanding Class that
the Existing Certificateholder offers to purchase if the
Auction Spread Amount for such Class for the next succeeding
related Interest Accrual Period exceeds the Bid Spread Amount
specified by such Existing Certificateholder.
(B) one or more Broker-Dealers may contact Potential
Certificateholders to determine the principal amount of Certificates
of the related Class which each Potential Certificateholder offers to
purchase, if the Auction Spread Amount for such Class for the next
succeeding related Interest Accrual Period equals or exceeds the Bid
Spread Amount specified by such Potential Certificateholder.
The statement of an Existing Certificateholder or a Potential
Certificateholder referred to in (A) or (B) of this paragraph (i) is herein
referred to as an "Order," and each Existing Certificateholder and each
Potential Certificateholder placing an Order is herein referred to as a
"Bidder"; an Order described in clause (A)(1) is herein referred to as a "Hold
Order"; an Order described in clauses (A)(4) and (B) is herein referred to as
a "Bid"; and an Order described in clause (A)(2) and (A)(3) is herein referred
to as a "Sell Order."
(ii) Each Broker-Dealer shall submit in writing to the Auction
Agent prior to the Submission Deadline on each Auction Date, all Orders
obtained by such Broker-Dealer and shall specify with respect to each such
Order:
(A) the name of the Bidder placing such Order;
(B) the aggregate principal amount of the Outstanding Class
that are the subject of such Order;
(C) if such Bidder is an Existing Certificateholder:
(1) the principal amount of the Outstanding Class, if
any, subject to any Hold Order placed by such Existing
Certificateholder;
(2) the principal amount of the Outstanding Class, if
any, subject to any Bid placed by such Existing
Certificateholder and the Bid Spread Amount specified in such
Bid; and
(3) the principal amount of the Outstanding Class, if
any, subject to any Sell Order placed by such Existing
Certificateholder (and the Sell Spread Amount, if any,
specified in such Sell Order); and
(D) to the extent such Bidder is a Potential Certificateholder,
the Bid Spread Amount specified in such Potential Certificateholder's
Bid.
(iii) The Bid Spread Amount or Sell Spread Amount specified in
any Bid or Sell Order, shall be expressed as a percentage and the Auction
Agent shall round such Bid Spread Amount or Sell Spread Amount to the nearest
one thousandth of one percent.
(iv) If an Order or Orders covering all of the Auction Rate
Certificates owned by an Existing Certificateholder is not submitted to the
Auction Agent prior to the Submission Deadline, the Auction Agent shall deem a
Hold Order to have been submitted on behalf of such Existing Certificateholder
covering the principal amount of the Certificates owned by such Existing
Certificateholder and not subject to an Order submitted to the Auction Agent.
(v) None of the Depositor, the Trustee or the Auction Agent
shall be responsible for any failure of a Broker-Dealer to submit an Order to
the Auction Agent on behalf of any Existing Certificateholder or Potential
Certificateholder.
(vi) If any Existing Certificateholder submits one or more
Orders covering in the aggregate more than the principal amount of the
Outstanding Class owned by such Existing Certificateholder, such Order(s)
shall be considered valid as follows and in the following order of priority:
(A) All Hold Orders shall be considered valid but only up to
the aggregate principal amount of the Outstanding Class owned by such
Existing Certificateholder;
(B) (1) any Bid shall be considered valid up to an amount
equal to the excess of the principal amount of the Outstanding
Class owned by such Existing Certificateholder over the
aggregate principal amount of such Class subject to any Hold
Order referred to in clause (A) of this paragraph (vi);
(2) if more than one Bid with different rates is
submitted on behalf of such Existing Certificateholder, such
Bids shall be considered valid (to the extent of the excess of
the principal amount of the Outstanding Class owned by the
Existing Certificateholder over the aggregate principal amount
of such Class subject to any Hold Order referred to in clause
(A) of this paragraph (vi)) first in the ascending order of
their respective Bid Spread Amounts until the highest Bid
Spread Amount is reached and the amount of such excess is
covered; and
(3) in any such event, the amount of the Outstanding
Class, if any, subject to Bids not valid under this clause (B)
shall be treated as the subject of a Bid by a Potential
Certificateholder at the Bid Spread Amounts therein specified;
and
(C) All Sell Orders shall be considered valid up to an amount
equal to the excess of the principal amount of the Outstanding Class
owned by such Existing Certificateholder over the sum of the
aggregate principal amount of such Certificates subject to Hold
Orders referred to in clause (A) of this paragraph (vi) and Bids
referred to in clause (B) of this paragraph (vi).
(vii) If more than one Bid for a Class is submitted on behalf
of any Potential Certificateholder, each Bid submitted shall be a separate Bid
with the Bid Spread Amounts and principal amount therein specified.
(viii) An Existing Certificateholder that offers to purchase
additional Certificates of any Class is, for purposes of such offer, treated
as a Potential Certificateholder.
(ix) Any Bid or Sell Order submitted by an Existing
Certificateholder covering an aggregate principal amount of Certificates not
equal to an Authorized Denomination shall be rejected and shall be deemed a
Hold Order. Any Bid submitted by a Potential Certificateholder covering an
aggregate principal amount of a Class not equal to an Authorized Denomination
shall be rejected.
(x) Any Order submitted in an Auction by a Broker-Dealer to the
Auction Agent shall be irrevocable after the Submission Deadline.
(b) (i) Not earlier than the Submission Deadline on each
Auction Date, the Auction Agent shall assemble all Orders submitted to it by
the Broker-Dealers (each such Order as submitted by a Broker-Dealer being
herein referred to individually as a "Submitted Hold Order," a "Submitted Bid"
or a "Submitted Sell Order," as the case may be, or as a "Submitted Order,"
and collectively as "Submitted Hold Orders," "Submitted Bids" or "Submitted
Sell Orders," as the case may be, or as "Submitted Orders") and:
(A) shall determine the excess of the total principal amount of
the Outstanding Class over the sum of the aggregate principal amount
of such Outstanding Class subject to Submitted Hold Orders (such
excess being herein referred to as the "Available Certificates").
(B) from the Submitted Orders the Auction Agent shall (i)
select the Clearing Bids and (ii) establish the Auction Rate.
(C) the Clearing Bids will be selected by the Auction Agent as
follows:
(1) the Auction Agent shall select the "Clearing Bids"
from the Submitted Orders, in order of increasing Bid Spread
Amounts (beginning with the Submitted Order with the lowest Bid
Spread Amount), until the Auction Agent has cleared an
aggregate principal amount of Submitted Bids which is at least
equal to the aggregate principal amount of the Available
Certificates, and
(2) the highest Bid Spread Amount in any Clearing Bid
which, when added to [describe Index] for the related Interest
Accrual Period, equals a rate which is less than or equal to
the Maximum Auction Rate shall be the Auction Spread Amount
used to calculate the Auction Rate for such Auction Rate
Certificates for the following Interest Accrual Period;
(D) in the event the final Submitted Bid (or Submitted Bids if
more than one Submitted Bid has the same Bid Spread Amount) to be
cleared by the Auction Agent in accordance with sub-clause
2.1.1(b)(i)(C) above results in an aggregate principal amount of the
Clearing Bids in excess of the aggregate principal amount of the
Available Certificates, the Auction Agent shall reduce each of the
Clearing Bids pro rata.
(E) If the Auction Agent determines that it has received
Clearing Bids in an aggregate principal amount equal to 100% of the
aggregate principal amount of the Available Certificates which have
Bid Spread Amounts which when added to [describe Index] will be equal
to or less than the Maximum Auction Rate ("Sufficient Bids"), then,
the Auction Agent shall deliver a notice to each Bidder that
submitted a Clearing Bid which notifies such Bidder that its bid has
been accepted and which sets forth (a) the aggregate amount of
Auction Rate Certificates to be purchased by the Bidder, (b) the Bid
Spread Amount and (c) payment delivery instructions (such notice a
"Funding Notice") and shall send copies thereof to the Trustee, the
Depositor and each Broker-Dealer.
(F) Each Bidder will be required, pursuant to the terms of each
Funding Notice, to fund payment for its portion of the Auction Rate
Certificates to an account held by the Trustee (the "Auction Rate
Certificate Funding Account") by the close of business on the first
Business Day of the related Interest Accrual Period; provided,
however that any Existing Certificateholder will not be required to
make a deposit in the Auction Rate Certificate Funding Account,
except to the extent such Existing Certificateholder is purchasing
Auction Rate Certificates in an aggregate principal amount in excess
of the aggregate principal amount of the Auction Rate Certificates
previously owned by such Existing Certificateholder, in which case
the Existing Certificateholder shall be required to fund the
difference between the aggregate principal amount of Auction Rate
Certificates previously held by it and the aggregate principal amount
of Auction Rate Certificates to be purchased by it.
(G) If the Trustee has not received a notice from the Auction
Agent by the close of business on the Business Day following the
Auction Date that the Auction Agent received Sufficient Bids, the
Trustee shall notify the Auction Agent and the Depositor by no later
than the first Business Day of the Interest Accrual Period that it
has not received such notice.
(ii) if all the Outstanding Class is subject to Submitted Hold
Orders, the Auction Rate for such Class for the next succeeding Interest
Accrual Period shall be equal to the All Hold Rate for such Class;
(iii) if Sufficient Bids for a Class do not exist (other than
because all of the Outstanding Certificates in such Class is subject to
Submitted Hold Orders) (a "Failed Auction"), the Auction Rate for such Class
for the next succeeding Interest Accrual Period shall be equal to the Maximum
Auction Rate for such Class;
(iv) if a scheduled Auction is not being held for any reason
with respect to a Class, the Auction Rate for such Class for the next
succeeding Interest Accrual Period shall be equal to the Maximum Auction Rate
for such Class; or
(v) promptly after the Auction Agent has made the
determinations pursuant to Sections 2.1.1(b)(i), (ii), (iii) and (iv) hereof,
the Auction Agent shall advise the Trustee of the applicable Auction Rate for
each Class, the All Hold Rate, if applicable, the Maximum Auction Rate, and
the components thereof on the Auction Date.
(c) Existing Certificateholders shall continue to own the principal
amount of Auction Rate Certificates that are subject to Submitted Hold Orders.
(i) If all of the Outstanding Class are subject to Submitted
Hold Orders, all Submitted Bids shall be rejected.
(ii) If, as a result of the procedures described herein, any
Existing Certificateholder or Potential Certificateholder would be
entitled or required to purchase less than an Authorized Denomination
of any Class, the Auction Agent shall, in its sole discretion,
allocate such Certificates for purchase among such Existing
Certificateholders and Potential Certificateholders so that only
Certificates in Authorized Denominations or integral multiples of
[$25,000] in excess thereof are purchased by each Existing
Certificateholder or Potential Certificateholder, even if such
allocation results in one or more of such Existing Certificateholders
or Potential Certificateholders not purchasing any such Certificates.
SECTION 2.1.2 AUCTION AGENT FEES AND EXPENSES.
The Auction Agent Fee will be paid by the Depositor pursuant to
the Auction Agent Agreement.
SECTION 2.1.3 CALCULATION OF MAXIMUM AUCTION RATE, ALL HOLD
RATE [AND [DESCRIBE INDEX]].
The Auction Agent shall, to the extent necessary, for each
Class, calculate the Maximum Auction Rate, the All Hold Rate, [and [describe
index]], on each Auction Date (or on such other date as may be determined by
the Auction Agent), as provided in the Auction Agent Agreement. If the
ownership of a Class is no longer maintained in Book-Entry Form by the
Depository, the Trustee shall calculate the Maximum Auction Rate and the All
Hold Rate (if applicable) on the Business Day immediately preceding the first
day of each related Interest Accrual Period. The Auction Agent shall also
determine [describe index] for each related Interest Accrual Period (other
than the Initial Period) on the Auction Date (or on such other date as may be
determined by the Auction Agent); provided, that if the ownership of a Class
is no longer maintained in Book-Entry Form, then the Trustee shall determine
[describe Index] in accordance herewith for each such Interest Accrual Period.
The determination by the Trustee or the Auction Agent, as the case may be, of
[describe Index] shall (in the absence of manifest error) be final and binding
upon all parties.
SECTION 2.1.4 AUCTION AGENT.
(a) [BAS Affiliate] is hereby appointed as Initial Auction
Agent to serve as agent for the Trustee in connection with Auctions. The
Trustee will enter into the Auction Agent Agreement with [BAS Affiliate], as
the Initial Auction Agent. Any Substitute Auction Agent shall be (i) a bank,
national banking association or trust company duly organized under the laws of
the United States of America or any state or territory thereof having its
principal place of business in the Borough of Manhattan, New York, or such
other location as approved by the Trustee and the Auction Agent in writing and
having a combined capital stock or surplus of at least $50,000,000, or (ii) a
member of the National Association of Securities Dealers, Inc., having a
capitalization of at least $50,000,000, and, in either case, authorized by law
to perform all the duties imposed upon it hereunder and under the Auction
Agent Agreement. The Auction Agent may at any time resign and be discharged of
the duties and obligations created by these Auction Procedures by giving at
least 90 days' notice to the Trustee and the Depositor. The Auction Agent may
be removed at any time by the Trustee or the Certificateholders of [66-2/3%]
of the aggregate principal amount of the Auction Rate Certificates then
Outstanding, and if by such Certificateholders, by an instrument signed by
such Certificateholders or their attorneys and filed with the Auction Agent,
the Depositor, and the Trustee upon at least 90 days' notice. Neither
resignation nor removal of the Auction Agent pursuant to the preceding two
sentences shall be effective until and unless a Substitute Auction Agent has
been appointed and has accepted such appointment. If required by the
Certificateholders of [66-2/3%] of the aggregate principal amount of the
Auction Rate Certificates then outstanding or by the Auction Agent, a
Substitute Auction Agent Agreement shall be entered into with a Substitute
Auction Agent. Notwithstanding the foregoing, the Auction Agent may terminate
the Auction Agent Agreement if, within 25 days after notifying the Trustee,
the Depositor and the Auction Agent in writing that it has not received
payment of any Auction Agent Fee due it in accordance with the terms of the
Auction Agent Agreement, the Auction Agent does not receive such payment.
(b) If the Auction Agent shall resign or be removed or be
dissolved, or if the property or affairs of the Auction Agent shall be under
receivership or otherwise under the control of any state or federal court or
administrative body because of bankruptcy or insolvency, or for any other
reason, the Trustee (after receipt of a certificate from the Auction Agent
confirming that any proposed Substitute Auction Agent meets the requirements
described in the immediately preceding paragraph) shall use its best efforts
to appoint a Substitute Auction Agent.
(c) The Auction Agent is acting as agent for the Trustee in
connection with Auctions. In the absence of bad faith or negligence on its
part, the Auction Agent shall not be liable for any action taken, suffered or
omitted in good faith or for any error of judgment made by it in the
performance of its duties under the Auction Agent Agreement. The Auction Agent
shall not be liable for any error of judgment made in good faith unless the
Auction Agent shall have been negligent in ascertaining the pertinent facts.
SECTION 2.1.5 BROKER-DEALERS.
(a) The Auction Agent will enter into a Broker-Dealer Agreement
with [BAS Affiliate] ("[BAS Affiliate]") as the initial Broker-Dealer. The
Depositor may, from time to time, approve one or more additional persons to
serve as Broker-Dealers under Broker-Dealer Agreements and shall be
responsible for providing such Broker-Dealer Agreements to the Trustee and the
Auction Agent. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) Any Broker-Dealer may be removed at any time, at the
request of the Depositor, but there shall, at all times, be at least one
Broker-Dealer appointed and acting as such.
SECTION 2.1.6 CHANGES IN THE AUCTION DATE.
The Auction Agent may specify an earlier or later Auction Date
for a Class of Auction Rate Certificates (but in no event more than five
Business Days earlier or later) than the Auction Date that would otherwise be
determined in accordance with the definition of "Auction Date" in Article 1 of
these Auction Procedures with respect to one or more specified Interest
Accrual Periods 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 or the determination of the Auction Rate. The Auction Agent shall provide
notice of its determination to specify an earlier or later Auction Date for
one or more Interest Accrual Periods by means of a written notice delivered at
least 10 days prior to the proposed changed Auction Date to the Trustee, the
Auction Agent, the Depositor and the Depository.
In connection with any change described in this Section 2.1.6,
the Auction Agent shall provide such further notice to such parties as is
specified in the Auction Agent Agreement.
SECTION 2.2 ADDITIONAL PROVISIONS REGARDING THE AUCTION RATES
ON THE AUCTION RATE CERTIFICATES.
The determination of the Auction Rate for each Class by the
Auction Agent, the Trustee or any other Person pursuant to the provisions of
the applicable Section of this Article 2 shall be conclusive and binding on
the Certificateholders which hold Auction Rate Certificates, and the Trustee
may rely thereon for all purposes. In no event shall the cumulative amount of
interest paid or payable on the Auction Rate Certificates (including interest
calculated as provided herein, plus any other amounts that constitute interest
on the Auction Rate Certificates under applicable law, which are contracted
for, charged, reserved, taken or received pursuant to such Certificates or
related documents) calculated from the date of issuance of such Certificates
through any subsequent day during the term of the applicable Auction Rate or
otherwise prior to payment in full of such Certificates exceed the amount
permitted by applicable law.
SCHEDULE I
SERIES 20[ ] -[ ]
Underlying Securities Schedule
Underlying Securities: [to come]
Underlying Securities Issuer: [to come]
CUSIP Number: [to come]
Principal Amount Deposited: [to come]
Original Issue Date: [to come]
Principal Amount of [to come]
Underlying Securities
Originally Issued: [$______]
Maturity Date: [to come]
Principal Payment Date: [to come]
Interest Rate [____%] per annum.
Interest Payment Dates: [ ] and [ ]
Underlying Securities Record Dates: The day immediately preceding
each Distribution Date.
Initial Accrued Interest:
Redemption Dates:
Redemption Prices:
Priority:
Security:
Rating as of Closing Date:
Form of Underlying Securities:
[Retained Interest:]
SCHEDULE II
ACCRETING PRINCIPAL SCHEDULE
Year Ending Balance
---- --------------
SCHEDULE III
SERIES 20[ ]-[ ]
DESCRIPTION OF THE RETAINED INTEREST
EXHIBIT A
STANDARD TERMS FOR TRUST AGREEMENTS
EXHIBIT B-1
FORM OF TRUST CERTIFICATE CLASS A-[ ]
EXHIBIT B-2
FORM OF TRUST CERTIFICATE CLASS A-[ ]
EXHIBIT B-3
FORM OF TRUST CERTIFICATE CLASS A-[ ]
TABLE OF CONTENTS
Section 1. Incorporation of Standard Terms........................... 1
Section 2. Definitions............................................... 2
Section 3. Designation of Trust and Certificates..................... 10
Section 4. Satisfaction of Conditions to Execution and Delivery
of Trust Certificates................................. 11
Section 5. Distributions............................................. 14
Section 6. Trustee's Fees............................................ 16
Section 9. Termination Events........................................ 22
Section 10. Reports of Independent Public Accountants................. 24
Section 11. Miscellaneous............................................. 24
Section 12. Counterparts.............................................. 27
Section 13. Termination of the Trust.................................. 27
Section 14. [Reserved]................................................ 28
Section 15. [Voting of Underlying Securities, Modification of
Underlying Securities Agreements...................... 28
ANNEX I [AUCTION PROCEDURES]
SCHEDULE I SERIES 200[ ]-[ ] Underlying Securities Schedule
SCHEDULE II Accreting Principal Schedule
SCHEDULE III Description of Retained Interest
EXHIBIT A STANDARD TERMS FOR TRUST AGREEMENTS
EXHIBIT B-1 FORM OF TRUST CERTIFICATE CLASS A-[ ]
EXHIBIT B-2 FORM OF TRUST CERTIFICATE CLASS A-[ ]
EXHIBIT B-3 FORM OF TRUST CERTIFICATE CLASS A-[ ]