[Form of] BASE TRUST AGREEMENT FOR TRUSTS SPONSORED BY STRUCTURED PRODUCTS CORP. Dated as of [________], 2013 RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND AGREEMENT PROVISIONS**

   

 

 

 

[Form of]

BASE TRUST AGREEMENT

 

FOR TRUSTS SPONSORED BY

 

STRUCTURED PRODUCTS CORP.

 

Dated as of [________], 2013

 

RECONCILIATION AND TIE BETWEEN TRUST INDENTURE

 

ACT OF 1939 AND AGREEMENT PROVISIONS*

 

 

Trust Indenture Act Section		Agreement Section
310(a)(1)	…………………………………………………………………………	8.6(a)
(a)(2)	…………………………………………………………………………	8.6(a)
(a)(3)	…………………………………………………………………………	8.10
(a)(4)		8.1(d)
(a)(5)	…………………………………………………………………………	8.6(a)
(b)	…………………………………………………………………………	8.6(b), 8.7
(c)	…………………………………………………………………………	Not Applicable
311(a)	…………………………………………………………………………	6.8
(b)	…………………………………………………………………………	6.8
312(a)	…………………………………………………………………………	3.19, 3.20(a)
(b)	…………………………………………………………………………	3.20(b)
(c)	…………………………………………………………………………	3.20(c)
313(a)	…………………………………………………………………………	——
(b)	…………………………………………………………………………	——
(c)	…………………………………………………………………………	——
(d)	…………………………………………………………………………	——
314(a)	…………………………………………………………………………	6.1(a), 6.1(b)
(b)	…………………………………………………………………………	6.1(f), 6.1(g)
(c)(1)	…………………………………………………………………………	6.1(e)
(c)(2)	…………………………………………………………………………	6.1(e)
(c)(3)	…………………………………………………………………………	6.1(e)
(d)(1)	…………………………………………………………………………	6.1(f)
(d)(2)	…………………………………………………………………………	6.1(f)
(d)(3)	…………………………………………………………………………	Not Applicable
(e)	…………………………………………………………………………	6.1(i)
315(a)	…………………………………………………………………………	8.1(c)
(b)	…………………………………………………………………………	8.1(f)
(c)	…………………………………………………………………………	8.1(a)

(d)	…………………………………………………………………………	8.1(c)
(d)(1)	…………………………………………………………………………	8.1(c)
(d)(2)	…………………………………………………………………………	8.1(c)
(d)(3)	…………………………………………………………………………	8.1(c)
(e)	…………………………………………………………………………	8.5(c)
316(a)(1)(A)	…………………………………………………………………………	5.17
316(a)(1)(B)	…………………………………………………………………………	5.18
316(a)(2)	…………………………………………………………………………	Not Applicable
316(b)	…………………………………………………………………………	5.6(e), 4.1
316(c)	…………………………………………………………………………	5.7
317(a)	…………………………………………………………………………	3.12
317(b)	…………………………………………………………………………	5.14
318(a)	…………………………………………………………………………	10.12

 

ARTICLE I	DEFINITIONS AND ASSUMPTIONS	1
SECTION 1.1	DEFINITIONS	1
SECTION 1.2	RULES OF CONSTRUCTION	14
ARTICLE II	DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES	15
SECTION 2.1	CREATION AND DECLARATION OF TRUSTS; ASSIGNMENT OF TERM ASSETS	15
SECTION 2.2	ACCEPTANCE BY TRUSTEE	16
SECTION 2.3	REPURCHASE OR SUBSTITUTION OF CERTAIN TERM ASSETS BY THE TERM ASSET PROVIDER	16
SECTION 2.4	REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AND REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADMINISTRATIVE AGENT	17
SECTION 2.5	BREACH OF REPRESENTATION, WARRANTY OR COVENANT	19
SECTION 2.6	AGREEMENT TO AUTHENTICATE AND DELIVER CERTIFICATES	19
SECTION 2.7	STATEMENT OF INTENT	19
ARTICLE III	ADMINISTRATION OF EACH TRUST	19
SECTION 3.1	ADMINISTRATION OF EACH TRUST	19
SECTION 3.2	SUB-ADMINISTRATION AGREEMENTS BETWEEN ADMINISTRATIVE AGENT OR TRUSTEE AND SUB-ADMINISTRATIVE AGENTS	20
SECTION 3.3	SUCCESSOR SUB-ADMINISTRATIVE AGENTS	21
SECTION 3.4	LIABILITY OF THE ADMINISTRATIVE AGENT	21
SECTION 3.5	NO CONTRACTUAL RELATIONSHIP BETWEEN CERTAIN SUB-ADMINISTRATIVE AGENTS AND TRUSTEE OR CERTIFICATEHOLDERS	22
SECTION 3.6	ASSUMPTION OR TERMINATION OF SUB-ADMINISTRATION AGREEMENTS BY TRUSTEE	22
SECTION 3.7	COLLECTION OF CERTAIN TERM ASSET PAYMENTS	23
SECTION 3.8	COLLECTIONS BY SUB-ADMINISTRATIVE AGENT	23
SECTION 3.9	CERTIFICATE ACCOUNT	23
SECTION 3.10	INVESTMENT OF FUNDS IN THE ACCOUNTS	24
SECTION 3.11	MAINTENANCE OF CREDIT SUPPORT	25
SECTION 3.12	REALIZATION UPON DEFAULTED TERM ASSETS	26
SECTION 3.13	RETAINED INTEREST	27

 

 

 

 

SECTION 3.14	ADMINISTRATIVE AGENT’S COMPENSATION AND REIMBURSEMENT	27
SECTION 3.15	STATEMENT AS TO COMPLIANCE	28
SECTION 3.16	[INTENTIONALLY OMITTED	28
SECTION 3.17	ACCESS TO CERTAIN DOCUMENTATION	28
SECTION 3.18	DUTIES OF THE ADMINISTRATIVE AGENT	28
SECTION 3.19	DEPOSITOR TO FURNISH NAMES AND ADDRESSES OF HOLDERS TO TRUSTEE	28
SECTION 3.20	PRESERVATION OF INFORMATION, COMMUNICATIONS TO HOLDERS	29
ARTICLE IV	DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS	29
SECTION 4.1	DISTRIBUTIONS	29
SECTION 4.2	REPORTS TO CERTIFICATEHOLDERS	29
SECTION 4.3	ADVANCES	30
SECTION 4.4	COMPLIANCE WITH WITHHOLDING REQUIREMENTS	31
SECTION 4.5	OPTIONAL EXCHANGE	32
ARTICLE V	THE CERTIFICATES	33
SECTION 5.1	THE CERTIFICATES	33
SECTION 5.2	EXECUTION, AUTHENTICATION AND DELIVERY	37
SECTION 5.3	TEMPORARY CERTIFICATES	38
SECTION 5.4	REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE	38
SECTION 5.5	MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES	41
SECTION 5.6	DISTRIBUTION OF INTEREST; INTEREST RIGHTS PRESERVED	41
SECTION 5.7	PERSONS DEEMED OWNERS	42
SECTION 5.8	CANCELLATION	43
SECTION 5.9	GLOBAL SECURITIES	43
SECTION 5.10	NOTICES TO DEPOSITARY	44
SECTION 5.11	DEFINITIVE CERTIFICATES	44
SECTION 5.12	CURRENCY OF DISTRIBUTIONS IN RESPECT OF CERTIFICATES	45
SECTION 5.13	CONDITIONS OF AUTHENTICATION AND DELIVERY OF NEW SERIES	45
SECTION 5.14	APPOINTMENT OF PAYING AGENT	47
SECTION 5.15	AUTHENTICATING AGENT	47

 

 

 

 

SECTION 5.16	EVENTS OF DEFAULT	48
SECTION 5.17	CONTROL BY HOLDERS	48
SECTION 5.18	WAIVER OF PAST DEFAULTS	49
ARTICLE VI	THE DEPOSITOR AND THE ADMINISTRATIVE AGENT	49
SECTION 6.1	PREPARATION AND FILING OF EXCHANGE ACT REPORTS; OBLIGATIONS OF THE DEPOSITOR AND THE ADMINISTRATIVE AGENT	49
SECTION 6.2	MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE ADMINISTRATIVE AGENT	54
SECTION 6.3	LIMITATION ON LIABILITY OF THE DEPOSITOR AND THE ADMINISTRATIVE AGENT	54
SECTION 6.4	LIMITATION ON RESIGNATION OF THE ADMINISTRATIVE AGENT	55
SECTION 6.5	RIGHTS OF THE DEPOSITOR IN RESPECT OF THE ADMINISTRATIVE AGENT	55
SECTION 6.6	DEPOSITOR MAY PURCHASE CERTIFICATES	56
SECTION 6.7	THE ADMINISTRATIVE AGENT AND OTHER PARTIES	56
SECTION 6.8	PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR	56
ARTICLE VII	ADMINISTRATIVE AGENT TERMINATION EVENTS	56
SECTION 7.1	ADMINISTRATIVE AGENT TERMINATION EVENTS	56
SECTION 7.2	TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR	58
SECTION 7.3	NOTIFICATION TO CERTIFICATEHOLDERS	58
SECTION 7.4	WAIVER OF ADMINISTRATIVE AGENT TERMINATION EVENTS	59
ARTICLE VIII	CONCERNING THE TRUSTEE	59
SECTION 8.1	DUTIES OF TRUSTEE; NOTICE OF DEFAULTS	59
SECTION 8.2	CERTAIN MATTERS AFFECTING THE TRUSTEE	62
SECTION 8.3	TRUSTEE NOT LIABLE FOR RECITALS IN CERTIFICATES OR TERM ASSETS	63
SECTION 8.4	TRUSTEE MAY OWN CERTIFICATES	64
SECTION 8.5	TRUSTEE’S FEES AND EXPENSES; INDEMNIFICATION; UNDERTAKING FOR COSTS	64
SECTION 8.6	ELIGIBILITY REQUIREMENTS FOR TRUSTEE	65
SECTION 8.7	RESIGNATION OR REMOVAL OF THE TRUSTEE	65
SECTION 8.8	SUCCESSOR TRUSTEE	66
SECTION 8.9	MERGER OR CONSOLIDATION OF TRUSTEE	66

 

 

 

SECTION 8.10	APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE	66
SECTION 8.11	APPOINTMENT OF OFFICE OR AGENCY	67
SECTION 8.12	REPRESENTATIONS AND WARRANTIES OF TRUSTEE	67
SECTION 8.13	TRUSTEE TO ACT ONLY IN ACCORDANCE WITH THIS AGREEMENT OR PURSUANT TO INSTRUCTIONS OF CERTIFICATEHOLDERS	68
SECTION 8.14	ACCOUNTING AND REPORTS TO CERTIFICATEHOLDERS, INTERNAL REVENUE SERVICE AND OTHERS	68
SECTION 8.15	SIGNATURE ON RETURNS	68
ARTICLE IX	TERMINATION	69
SECTION 9.1	TERMINATION UPON PURCHASE OR LIQUIDATION OF ALL TERM ASSETS	69
ARTICLE X	MISCELLANEOUS PROVISIONS	70
SECTION 10.1	AMENDMENT	70
SECTION 10.2	COUNTERPARTS	71
SECTION 10.3	LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS	71
SECTION 10.4	GOVERNING LAW	72
SECTION 10.5	NOTICES	72
SECTION 10.6	SEVERABILITY OF PROVISIONS	73
SECTION 10.7	NOTICE TO RATING AGENCY	73
SECTION 10.8	GRANT OF SECURITY INTEREST	74
SECTION 10.9	NONPETITION COVENANT	74
SECTION 10.10	NO RECOURSE	74
SECTION 10.11	ARTICLE AND SECTION REFERENCES	75
SECTION 10.12	CONFLICT WITH TRUST INDENTURE ACT	75

THIS BASE TRUST AGREEMENT is dated as of [_________], 2013, and will be incorporated by reference into a Series Supplement between STRUCTURED PRODUCTS CORP., a Delaware corporation, as Depositor or Trustor, and a trustee appointed under such Series Supplement.  This Base Trust Agreement and the applicable Series Supplement are collectively referred to herein as the Trust Agreement.

 

PRELIMINARY STATEMENT

 

The Depositor and the Trustee have duly authorized the execution and delivery of this Trust Agreement to provide for one or more Series (and one or more Classes within each such Series) of Trust Certificates, issuable from time to time as provided in this Agreement.  Each such Series (or each Class within such Series) of Certificates will be issued only under a separate Series Supplement to this Agreement duly executed and delivered by the Depositor, the Administrative Agent, if any, specified in the applicable Series Supplement, and the Trustee.  All representations, covenants and agreements made herein by each of the Depositor, the Administrative Agent, if any, and the Trustee are for the benefit and security of the Certificateholders and, to the extent provided in the applicable Series Supplement, for the benefit and security of any Credit Support Provider.  The Depositor is entering into this Agreement, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.

 

ARTICLE I

 

 

Section 1.1                      Definitions.  Except as otherwise specified herein or in the applicable Series Supplement or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Agreement.

 

“Account”:  As defined in Section 3.10.

 

“Accounting Date”:  With respect to any Series, if applicable, as defined in the related Series Supplement.

 

“Accreted Amount”:  With respect to each Series, if applicable, as defined in the related Series Supplement.

 

“Administrative Agent”:  With respect to any Series of Certificates, the Person, if any, specified in the applicable Series Supplement for such Series (which Person shall have agreed pursuant to such Series Supplement to assume all the duties, obligations, responsibilities and liabilities of the Administrative Agent as set forth in this Agreement and such Series Supplement with respect to such Series), until a successor Person shall have become the Administrative Agent pursuant to the applicable provisions of this Agreement and such Series Supplement, and thereafter “Administrative Agent” shall mean such successor Person.

 

“Administrative Agent Termination Event”:  As defined in Section 7.1.

 

“Administrative Fee”:  With respect to each Series, if applicable, as defined in the related Series Supplement.

 

“Advance”:  As defined in Section 4.3.

 

“Affiliate”:  With respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Agreement”:  With respect to any Series of Certificates, this Trust Agreement and all amendments hereof and, unless the context otherwise requires, the related Series Supplement.

 

“Authenticating Agent”:  As defined in Section 5.15.

 

“Authorized Newspaper”:  A newspaper in an official language of the country of publication customarily published at least once a day, and customarily published for at least five days in each calendar week, and of general circulation in such city or cities specified pursuant to Section 5.1 with respect to the Certificates of any Series. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day in such city.

 

“Available Funds”:  Unless otherwise specified in the applicable Series Supplement, for any Distribution Date in respect of a given Series or Class, the sum of (i) all amounts actually received on or with respect to the Term Assets (including Liquidation Proceeds and investment income on amounts in the Accounts) with respect to such Series during the related Collection Period, (ii) all amounts received pursuant to any Credit Support Instruments with respect to such Series for such Distribution Date and (iii) all other amounts, if any, specified by the applicable Series Supplement.

 

“Basic Documents”:  With respect to any Series, if applicable, as defined in the related Series Supplement.

 

“Board of Directors”:  Either the Board of Directors of the Depositor or any executive or committee of such Board duly authorized under applicable law to act on behalf of such Board.

 

“Board Resolution”:  A copy of a resolution certified by the Secretary or an Assistant Secretary of the Depositor to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivery to the Trustee.

 

“Business Day”:  With respect to any Place of Distribution specified pursuant to Section 5.1, any day that is not a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in such Place of Distribution are authorized or obligated by law, regulation or executive order to close or any day which is not a business day with respect to the Term Assets, except as otherwise specified pursuant to Section 5.1.

 

 

“Calculation Agent”:  With respect to each Series, as defined in the related Series Supplement.

 

“Call Premium Percentage”:  With respect to any Series (or Class within such Series), if applicable, as defined in the related Series Supplement.

 

“Certificate Account”:  As defined in Section 3.9.

 

“Certificate Owner”:  With respect to any Certificate in a Series or Class of Certificates held in book-entry form, the owner of beneficial interests in such Certificate.  With respect to any Definitive Certificate in any Series or Class of Certificates, the holder of such Definitive Certificate.

 

“Certificate Principal Balance”:  With respect to an Outstanding Certificate, as determined at any time, the maximum amount that the Holder thereof is entitled to receive as distributions allocable to principal payments on the Term Assets.  The Certificate Principal Balance, if any, of any Class within a given Series (other than those Classes, if any, specified in the related Series Supplement), as of any date of determination, shall be equal to the aggregate initial Certificate Principal Balance thereof less the sum of (i) all amounts allocable to prior distributions made to such Class in respect of principal of the Term Assets and (ii) any reductions attributable to Certificates surrendered in exchange for Term Assets, as and to the extent provided in the applicable Series Supplement.

 

“Certificate Register” and “Certificate Registrar”:  As respectively defined in Section 5.4.

 

“Certificateholder” or “Holder””  With respect to any Series (or Class within such Series), as defined in the related Series Supplement.

 

“Certificates”:  Any Trust Certificates authorized by, and authenticated and delivered under, this Agreement.

 

“Class”:  With respect to any Series, any one of the classes of Certificates of such Series, each consisting of Certificates having identical terms.

 

“Closing Date”:  With respect to any Series, the day on which Certificates of such Series are first executed, authenticated and delivered.

 

“Code”:  The Internal Revenue Code of 1986, as amended.

 

“Collection Period”:  With respect to any Distribution Date for a Series (or Class within such Series), the period specified in the related Series Supplement.

 

 

 

“Corporate Trust Office”:  The principal corporate trust office of the Trustee located at the address set forth in the related Series Supplement or such other addresses as the Trustee may designate from time to time by notice to the Holders, the Administrative Agent, if any, and the Depositor, or the principal corporate trust office of any successor Trustee (or such other addresses as a successor Trustee may designate from time to time by notice to the Holders, the Administrative Agent, if any, and the Depositor).

 

“Credit Support”:  With respect to any Series (or any Class within such Series), a letter of credit, surety bond, swap agreement, put or call option or other asset intended to support or ensure the timely or ultimate distributions of amounts due in respect of all or certain of the Term Assets for such Series or Class, which in each case is specified as such in the related Series Supplement.

 

“Credit Support Instrument”:  The instrument or document pursuant to which the Credit Support for a given Series (or any Class within such Series) is provided, as specified in the applicable Series Supplement.

 

“Credit Support Provider”:  With respect to any Series (or any Class within such Series), the Person, if any, that will provide any Credit Support with respect to all or a portion of the Term Assets for such Series or Class as specified in the applicable Series Supplement.

 

“Currency”:  Dollars or Foreign Currency.

 

“Cut-off Date”:  With respect to any Series, the date specified as such in the related Series Supplement. For purposes of this Agreement, any Term Asset acquired by the Depositor after the applicable Cut-off Date but prior to the applicable Closing Date and transferred to the related Trust as of such Closing Date shall be deemed to have been Outstanding as of such Cut-off Date and references to the principal balance of such Term Asset as of such Cut-off Date shall be deemed to be to the principal balance of such Term Asset as of the date on which it was acquired by the Depositor.

 

“Definitive Certificates”:  As defined in Section 5.9.

 

“Deleted Term Asset”:  A Term Asset replaced or to be replaced by a Qualified Substitute Term Asset.

 

“Depositary”:  With respect to the Certificates of any Series (or Class within such Series) issuable in whole or in part in the form of one or more Global Securities, the Person designated as Depositary by the Depositor pursuant to Section 5.1 until a successor Depositary shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Certificates of any such Series or Class shall mean the Depositary with respect to the Certificates of that Series or Class.

 

“Depositor”:  Structured Products Corp., a Delaware corporation, in its capacity as Depositor and, if a successor Person shall have become the Depositor pursuant to any applicable provisions of this Agreement, “Depositor” shall mean such successor Person.

 

“Depositor Order” or “Depositor Request”:  A written order or request, respectively, signed in the name of the Depositor by any of its Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, President, a Vice President, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee.

 

 

“Discount Certificate”:  Any Certificate with respect to which the Certificateholder will be treated as receiving “original issue discount” within the meaning of Section 1273(a) of the Code and any other Certificate designated by the Depositor as a Discount Certificate.

 

“Distribution Date”:  With respect to any Series (or Class within such Series) of Certificates, each date specified as a “Distribution Date” for such Series (or Class) in the related Series Supplement.

 

“Dollar” or “$” or “USD”:  Such currency of the United States as at the time of payment is legal tender for the payment of public and private debts.

 

“Eligible Account”:  Either (i) an account or accounts maintained with a Federal or State chartered depository institution or trust company the long term unsecured debt obligations of which are rated by the Rating Agency the higher of (x) at least the then current long-term rating of the Term Assets or (y) in one of its two highest long-term rating categories (unless otherwise specified in the Series Supplement) at the time any amounts or property is held therein or (ii) a trust account maintained with the corporate trust department of a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal Regulations Section 9.10(b) and, in either case, the trust department has corporate trust powers and is acting in its fiduciary capacity.

 

“Event of Default”:  With respect to any Series (or Class within such Series) of Certificates, as specified in the related Series Supplement.

 

“Exchange Act”:  The Securities Exchange Act of 1934, as amended.

 

“Exchange Rate Agent”:  With respect to any Series (or Class within such Series) of Certificates, if applicable, the Depositor or its agent so specified in the related Series Supplement.

 

“Executive Officer”:  With respect to any corporation, the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, any Vice President, the Secretary or the Treasurer of such corporation; with respect to any partnership, any general partner thereof.

 

“Extraordinary Trust Expense”:  With respect to any Series, as specified in the related Series Supplement.

 

“Final Scheduled Distribution Date”:  With respect to each Series, as defined in the Series Supplement.

 

“Fixed Pass Through Rate”:  With respect to any Fixed Rate Certificate, as defined in the related Series Supplement.

 

“Fixed Rate Certificate”:  A Certificate that provides for a payment of interest at a Fixed Pass Through Rate.

 

“Floating Pass Through Rate”:  With respect to any Floating Rate Certificate, as defined in the related Series Supplement.

 

“Floating Rate Certificate”:  A Certificate that provides for the payment of interest at a Floating Pass Through Rate determined periodically by reference to a formula specified pursuant to Section 5.1 and the related Series Supplement.

 

“Foreign Currency”:  A currency issued by the government of any country other than the United States or a composite currency the value of which is determined by reference to the values of the currencies of any group of countries.

 

“Global Security”:  A Certificate evidencing all or part of a Series (or Class within such Series) of Certificates, issued to the Depositary for such Series or Class in accordance with Section 5.9 and bearing the legend prescribed therein.

 

“Guaranteed Investment Contract”:  With respect to any Series (or Class within such Series), a guaranteed investment contract or surety bond provided for in the related Series Supplement, sold to the Trust for the benefit of the Certificateholders for such Series, providing for the investment of funds in a related Account or related Accounts and insuring a minimum or a fixed rate of return on the investment of such funds, which contract or surety bond shall be an obligation of an insurance company or other entity whose rating at the time of purchase of such guaranteed investment contract or surety bond is no lower than the rating on the Term Assets and shall satisfy any other requirements specified in such Series Supplement.

 

“Independent”:  When used with respect to any specified Person means that the Person specifies he or she (1) is in fact independent of the Depositor and the Administrative Agent, if any, and of any Affiliate of any of the foregoing Persons, (2) does not have any direct or indirect financial interest in the Depositor or the Administrative Agent, if any, or in any Affiliate of either of the foregoing Persons which is material with respect to such Person and (3) is not connected with the Depositor or the Administrative Agent, if any, as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

 

“Independent Certificate” means a certificate of an Independent Person, as required by the TIA.

 

“Letter of Credit”:  With respect to any Series or Class within such Series, the letter of credit, if any, providing for the payment of all or a portion of amounts due in respect of such Series or Class, issued to the Trustee for the benefit of the Holders of such Series or Class, issued by the related Credit Support Provider, all as specified in the related Series Supplement.

 

“Limited Guarantor”:  With respect to the Term Assets relating to any Series (or Class within such Series), a Person specified in the related Series Supplement as providing a guarantee or insurance policy or other credit enhancement supporting the distributions in respect of such Series (or Class) as and to the extent specified in such Series Supplement.

 

“Limited Guaranty”:  With respect to any Series or Class within such Series, any guarantee of or insurance policy or other comparable form of credit enhancement with respect to amounts required to be distributed in respect of such Series or Class or payments under all or certain of the Term Assets relating to such Series or Class, executed and delivered by a Limited Guarantor in favor of the Trustee, for the benefit of the Certificateholders, as specified in the related Series Supplement.

 

“Liquidation Proceeds”:  The amounts received by the Administrative Agent, if any, or the Trustee in connection with (i) the liquidation of a defaulted Term Asset or collateral, if any, related thereto or (ii) the repurchase, substitution or sale of a Term Asset.

 

“Notional Amount”:  With respect to any Class of Certificates, if applicable, the initial notional amount specified in the related Series Supplement on which distributions of interest may be determined at the applicable Pass Through Rate, as the same may be adjusted as specified in such Series Supplement.

 

“Officer’s Certificate”:  A certificate signed by any one (or, if specified in this Agreement or any Series Supplement, more than one) Executive Officer of the Depositor or Administrative Agent, as applicable.

 

“Opinion of Counsel”:  A written opinion of counsel, who may, except as otherwise expressly provided in this Agreement, be counsel for the Depositor or the Administrative Agent, if any, acceptable to the Trustee, except that any opinion of counsel relating to the qualification of any account required to be maintained pursuant to this Agreement as an Eligible Account must state that it is an opinion of counsel who is in fact Independent of the Depositor and the Administrative Agent, if any.

 

“Optional Exchange Date”:  With respect to any Series (or Class with such Series), as defined, if applicable, in the related Series Supplement.

 

“Outstanding”:  With respect to Certificates of a specified Series (or Class within such Series), as of any date of determination, all such Certificates theretofore authenticated and delivered under this Agreement and the related Series Supplement except:

 

(i)                          Certificates theretofore cancelled by the Certificate Registrar or delivered to the Certificate Registrar for cancellation; and

 

(ii)                          Certificates in exchange for or in lieu of which other Certificates have been authenticated and delivered pursuant to this Agreement, unless proof satisfactory to the Trustee is presented that any such Certificates are held by a protected purchaser;

 

provided, however, that in determining whether the Holders of the required percentage of the aggregate Voting Rights of the Certificates have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Certificates beneficially owned by the Depositor, or any Affiliate thereof, shall be disregarded and deemed not to be Outstanding, and the Voting Rights to which its Holder would otherwise be entitled shall not be taken into account in determining whether the requisite percentage of aggregate Voting Rights necessary to effect any such consent or take any such action has been obtained except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Certificates with respect to which the Depositor has provided the Trustee an Officer’s Certificate stating that such Certificates are so owned shall be so disregarded.  Certificates so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee by certifying to such effect in an Officer’s Certificate the pledgee’s right so to act with respect to such Certificates and that the pledgee is not, to the actual knowledge of the Trustee without any duty of investigation, the Depositor, the Administrative Agent, if any, or any Affiliate of any thereof so owned. The principal amount or notional amount, as applicable, of a Discount Certificate that shall be deemed to be Outstanding for the determination referred to in the foregoing proviso shall be the Certificate Principal Balance or Certificate Notional Amount, as applicable, with respect thereto as of the date of such determination, and the principal amount or notional amount, as applicable, of a Certificate denominated in a Foreign Currency that shall be deemed to be Outstanding for purposes of the determination referred to in the foregoing provision shall be the amount calculated pursuant to Section 5.12(c).

 

“Participant”:  A broker, dealer, bank, other financial institution or other Person for whom from time to time a Depositary effects book-entry transfers and pledges of securities deposited with the Depositary.

 

“Pass Through Rate”:  With respect to any Series (or Class within such Series) of Certificates (except certain Discount Certificates and Certificates entitled to nominal or no interest distributions) the annual rate at which interest accrues on the Certificates of such Series (or Class), which may be a fixed rate or a floating rate of interest, determined upon the basis and in the manner specified in the related Series Supplement.

 

“Paying Agent”:  As defined in Section 5.14.

 

“Percentage Interest”:  With respect to a Certificate of any Series or Class within a Series, the portion of such Series or Class evidenced by such Certificate, expressed as a percentage, equal to the product of (x) a fraction, the numerator of which is the initial Certificate Principal Balance or Notional Amount, as applicable, represented by such Certificate and the denominator of which is the aggregate initial Certificate Principal Balance or Notional Amount, as applicable, of all the Certificates of such Series or Class and (y) 100.

 

“Permitted Investments”:  With respect to any Series, unless otherwise specified in the related Series Supplement, any one or more of the following obligations or securities, provided that the total return specified by the terms of each such obligation or security is at least equal to the purchase price thereof:

 

(i)           direct obligations of, and obligations fully guaranteed by, the United States, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Federal Farm Credit System or any agency or instrumentality of the United States the obligations of which are backed by the full faith and credit of the United States of America; provided that obligations of, or guaranteed by, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association or the Federal Farm Credit System shall be Permitted Investments only if, at the time of investment, it has the rating specified in such Series Supplement for Permitted Investments;

 

(ii)           demand and time deposits in, certificates of deposit of, or banker’s acceptances issued by any depository institution (including the Trustee or any agent of the Trustee acting in their respective commercial capacities) incorporated under the laws of the United States or any State and subject to supervision and examination by Federal and/or State banking authorities so long as the commercial paper and/or the short-term debt obligations of such depository institution (or, in the case of a depository institution which is the principal subsidiary of a holding company, the commercial paper or other short-term debt obligations of such holding company) at the time of such investment or contractual commitment providing for such investment have the rating specified in such Series Supplement for Permitted Investments; provided, however, that such rating shall be no lower than the rating on the Term Assets at the time of purchase of the investments;

 

(iii)           repurchase agreements with respect to (a) any security described in clause (i) above or (b) any other security issued or guaranteed by an agency or instrumentality of the United States, with an entity having the credit rating specified in such Series Supplement for Permitted Investments;

 

(iv)           securities bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States or any State that have the rating specified in such Series Supplement for Permitted Investments at the time of such investment or contractual commitment providing for such investment; provided, however, that such rating shall be no lower than the rating on the Term Assets; provided further that securities issued by any particular corporation will not be Permitted Investments to the extent that investment therein will cause the then outstanding principal amount of securities issued by such corporation and held as an asset of the Trust for such Series to exceed 10% of the aggregate outstanding principal balances and amounts of all the Term Assets and Permitted Investments held as assets of the Trust for such Series;

 

(v)           commercial paper having at the time of such investment the rating specified in the Series Supplement for Permitted Investments; and

 

(vi)           a Guaranteed Investment Contract if and only if specified in the related Series Supplement, provided that the Rating Agency Condition is met.

 

“Person”:  Any individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Place of Distribution”:  With respect to any Series (or Class within such Series) of Certificates, the place or places where the principal of (and premium, if any) and interest on the Certificates of such Series (or Class) are distributable as specified pursuant to Section 5.1.

 

“Predecessor Certificate”:  With respect to any particular Certificate, every previous Certificate evidencing all or a portion of the same interest as that evidenced by such particular Certificate; and, for the purpose of this definition, any Certificate authenticated and delivered under Section 5.5 in lieu of a lost, destroyed or stolen Certificate shall be deemed to evidence the same interest as the lost, destroyed or stolen Certificate.

 

“Proceeding”:  Any suit in equity, action at law or other judicial or administrative proceeding.

 

“Purchase Price”:  With respect to any Term Asset required to be repurchased by the Term Asset Provider pursuant to Section 2.3 and as confirmed by an Officer’s Certificate from the Administrative Agent, if any, or the Depositor, as the case may be, to the Trustee, an amount equal to the sum of (i) the greater of (x) 100% of the principal balance thereof as of the date of such purchase or (y) if the Term Asset was purchased at a premium above face value, the price paid therefor, (ii) accrued and unpaid interest thereon from the immediately preceding interest allocation date, or if no interest has been paid to the Trust with respect thereto, from the Cut-Off Date, in each case at a rate equal to the Fixed Pass Through Rate or the then applicable Floating Pass Through Rate, as the case may be, as specified in the applicable Series Supplement, on the principal balance of such Term Asset as of the close of business on the Business Day immediately preceding the date of purchase or such other day as may be specified in the applicable Series Supplement on which such purchase is to occur, (iii) any unreimbursed Advances and any unpaid Administrative Fees allocable to such Term Asset, (iv) expenses reasonably incurred or to be incurred by the Administrative Agent, if any, or the Trustee in respect of the breach or defect giving rise to the purchase obligation, including any expenses arising out of the enforcement of the purchase obligation and (v) any realized losses previously incurred with respect to such Term Asset and allocated to Certificateholders on or before the date of purchase.

 

“Qualified Substitute Term Asset”:  With respect to any Series, as defined, if applicable, in the related Series Supplement.

 

“Rating Agency”:  With respect to any Series (or Class within such Series), as defined in the related Series Supplement.

 

“Rating Agency Condition”:  With respect to any action or occurrence, unless otherwise specified in the applicable Series Supplement, that each Rating Agency shall have been given 10 days (or such shorter period acceptable to each Rating Agency) prior notice thereof and that each Rating Agency shall have notified the Depositor, the Trustee and the Administrative Agent, if any, in writing that such action or occurrence will not result in a reduction or withdrawal of the then current rating of any Certificate of the applicable Series.

 

 

“Record Date”:  With respect to any Distribution Date for any Series (or Class within such Series) of Certificates, the date specified in the related Series Supplement.

 

“Regulation AB” Means Subpart ###-###-#### – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ ###-###-#### ###-###-####, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

 

“Required Interest”:  Unless otherwise specified in the related Series Supplement, with respect to the Outstanding Certificates of any Series or any Class thereof, the accrued and undistributed interest on the Certificate Principal Balance or Notional Amount of such Outstanding Certificates computed at the applicable Pass Through Rate.

 

“Required Percentage--Amendment”:  Unless otherwise specified in the related Series Supplement, 66 2/3% of the aggregate Voting Rights of Certificates of such Series (or of a designated Class or group of Classes within such Series) (either voting as separate Classes or as a single Class) applicable to such matter, all as specified in the applicable Series Supplement.

 

“Required Percentage--Definitive Certificates”: Unless otherwise specified in the related Series Supplement, greater than 50% of the aggregate Voting Rights of Certificates of such Series.

 

“Required Percentage--Direction of Trustee”: Unless otherwise specified in the related Series Supplement, greater than 50% of the aggregate Voting Rights of Certificates of such Series.

 

“Required Percentage--Remedies”:  Unless otherwise specified in the related Series Supplement, 66 2/3% of the aggregate Voting Rights of Certificates of such Series.

 

“Required Percentage--Removal of Trustee”:  Unless otherwise specified in the related Series Supplement, greater than 50% of the aggregate Voting Rights of Certificates of such Series.

 

“Required Percentage--Waiver”:  Unless otherwise specified in the related Series Supplement, 66 2/3% of the aggregate Voting Rights of Certificates of such Series.

 

“Required Premium”:  If applicable, unless otherwise specified in the related Series Supplement, with respect to the Certificates of any Series or any Class thereof, an amount equal to the product, as determined on any Distribution Date with respect to such Series or Class, of (i) the Required Principal for such Series or Class and (ii) the Call Premium Percentage for such Series or Class.

 

 

“Sub-Administration Account”:  As defined in Section 3.8.

 

“Sub-Administration Agreement”:  The written contract, if any, between the Administrative Agent, if any, specified in the applicable Series Supplement, or Trustee and a Sub-Administrative Agent and any successor Administrative Agent or Trustee or Sub-Administrative Agent relating to the administration of a Term Asset or certain Term Assets as provided in Section 3.2.

 

“Sub-Administrative Agent”:  Any Person with which the Administrative Agent, if any, specified in the applicable Series Supplement, or the Trustee has entered into a Sub-Administration Agreement and which meets the qualifications of a Sub-Administrative Agent pursuant to Section 3.2.

 

“Surety Bond”:  If so specified in the Series Supplement, with respect to any Series (or Class within such Series) of Certificates, the surety bond providing for the distribution under certain circumstances specified in such Series Supplement of amounts to the Certificateholders of such Series (or Class), which surety bond will be issued to the Trustee for the benefit of such Certificateholders by the related Credit Support Provider, all as specified in such Series Supplement.

 

“Term Asset Provider”:  With respect to any Term Asset purchased pursuant to a Term Asset Purchase Agreement, each entity specified as such in the applicable Series Supplement or its successor in interest.

 

“Term Asset Purchase Agreement”:  With respect to certain Series of Certificates, as designated in the applicable Series Supplement, the purchase agreement providing for the purchase by the Depositor of one or more Term Assets for such Series, substantially in the form acceptable to the Depositor, provided, that if required by the applicable Series Supplement, such agreement shall provide for the repurchase of such Term Assets on the terms set forth in Section 2.3.

 

“Term Assets”:  With respect to any Series, the asset or assets sold to the Trust for such Series or acquired (or, in the case of an agreement, entered into) by the Trustee on behalf of the Trust for the benefit of the Holders of such Series and, if and to the extent provided in the applicable Series Supplement, for the benefit of any Credit Support Provider, all as identified in the Term Assets Schedule to the related Series Supplement.  The Term Assets for any such Series or the related Trust shall not constitute Term Assets for any other Series or any other Trust.

 

“Term Assets Issuer”:  As defined in the related Series Supplement.

 

“Term Assets Schedule”:  With respect to any Series, a listing of the Term Assets for such Series as of the Closing Date, including, with respect to each Term Asset, the obligor and the principal balance thereof, which shall be attached to such Series Supplement as Schedule A.

 

“TIA”:  The Trust Indenture Act of 1939, as amended.

 

“Trust”:  With respect to any Series, the trust created hereby and by the related Series Supplement and administered hereunder and thereunder, the assets of which consist of the Term Assets and the Credit Support, if applicable, and all sums distributed in respect thereof that are specified as held by the Trust for such Series in the related Series Supplement, all for the benefit of the Certificateholders of such Series as of any particular time.

 

“Trustee”:  As defined in the Series Supplement.

 

“Trustor”:  Structured Products Corp., a Delaware corporation, in its capacity as trustor under the applicable Series Supplement, and, if a successor Person shall have become the Trustor pursuant to any applicable provisions of this Agreement, “Trustor” shall mean such successor Person.  With respect to any Series Supplement that identifies a “Trustor” instead of a “Depositor,” references to “Depositor” herein shall be deemed to be references to “Trustor.”

 

“Trust Termination Event”:  With respect to any Series, as specified in the related Series Supplement.

 

“Uniform Commercial Code”:  The Uniform Commercial Code as in effect in the relevant jurisdiction.

 

“United States”:  The United States of America (including the States), its territories, its possessions and other areas subject to its jurisdiction.

 

“Voting Rights”:  With respect to any Series (or Class within such Series) of Certificates, the portion of the aggregate voting rights of the Certificates of such Series or Class which shall be allocated to any Certificate as specified in the applicable Series Supplement.

 

   

 

 

 

 

ARTICLE II

 

 

Section 2.1                   Creation and Declaration of Trusts; Assignment of Term Assets.  (a) The Depositor, concurrently with the execution and delivery of the applicable Series Supplement, does hereby agree to (i) sell, assign, transfer, set-over and otherwise convey to the Trust, on behalf and for the benefit of the Certificateholders of the related Series of Certificates, without recourse, all the right, title and interest of the Depositor, in, to and under the Term Assets attributable to such Series (except for the Term Assets attributable to such Series which are not sold by the Depositor, as specified in the Term Assets Schedule to the applicable Series Supplement), in each case as identified on the applicable Term Assets Schedule, and all other assets to be transferred to the respective Trust for the benefit of the Certificateholders of each such Series (including but not limited to any Credit Support Instrument) or (ii) deliver to the Trustee for credit to the Certificate Account an amount, in immediately available funds in a form acceptable to the Trustee, sufficient to acquire the Term Assets on behalf of the Trust attributable to such Series, in each case as identified on the Term Asset Schedule to the applicable Series Supplement, and all other assets to be transferred to the respective Trust for the benefit of the Certificateholders of each such Series.  To the extent the Depositor causes Term Assets to be acquired by the Trustee pursuant to clause (ii) above, the Depositor will be identified as the Trustor in the related Series Supplement.  Each such sale will include all interest, premium (if any) and principal received by or on behalf of the Depositor of, on or with respect to any such Term Assets due after the applicable Cut-off Date, and, unless otherwise specified in the Series Supplement, will exclude (x) all interest, premium (if any) and principal of, on or with respect to any such Term Assets due on or before the applicable Cut-off Date and (y) any Retained Interest in any such Term Asset.

 

(b)                         In connection with each sale referred to in the preceding paragraph, the Depositor shall, not later than the applicable Closing Date, (i) deposit the Term Assets for a given Series (except for the Term Assets attributable to such Series which are to be acquired from a Person other than the Depositor, as specified on the Term Assets Schedule to the applicable Series Supplement) with the Trustee on behalf of the Trust by physical delivery of such Term Assets, duly endorsed, to the Trustee or by causing such Term Assets to be registered by book entry in the name of the Trust, (ii) with respect to each such Term Asset, deliver or cause to be delivered to the Trustee all documents necessary to transfer ownership of each such Term Asset to the Trust and (iii) assign all of its rights and privileges under each of the Term Asset Purchase Agreements relating to the Term Assets sold to the Trust.

 

(c)                         Unless otherwise specified in the applicable Series Supplement, the sale of such Term Assets by the Depositor for a given Series accomplished hereby and by such Series Supplement is absolute and is intended by the parties hereto as a sale and not a loan.  The Depositor represents and covenants that the Term Assets as of the related Closing Date will be free and clear of any right, charge, security interest or lien or claim in favor of the Depositor and, with respect to any sale of Term Assets, that the Depositor will as of such related Closing Date have the right to sell the applicable Term Assets to the Trust.

 

 

Section 2.2                  Acceptance by Trustee.  (a) With respect to each Series, the Trustee will acknowledge receipt by it, or by a custodian on its behalf, of the related Term Assets and the related documents referred to in Section 2.1, now existing or hereafter acquired, and declares that it will hold such Term Assets and documents and all other documents delivered to it pursuant to this Agreement, and that it will hold all such assets and such other assets (including Term Assets acquired from a Person other than the Depositor) intended to be transferred to the Trust for a given Series of Certificates, in trust for the exclusive use and benefit of all present and future Certificateholders of such Series and for the purposes and subject to the terms and conditions set forth in this Agreement.

 

(b)                         The Trustee, or a custodian on its behalf, shall review all documents received by it pursuant to Section 2.1 within 45 days after receipt thereof.  If in the process of reviewing such documents the Trustee or such custodian discovers any document or documents to be missing or defective, the Trustee shall promptly (but in any event within 10 Business Days) so notify the Depositor and the Administrative Agent, if any.  In addition, upon the discovery by the Depositor, the Administrative Agent, if any, or the Trustee of a breach of any of the representations and warranties made by any Term Asset Provider in the related Term Asset Purchase Agreement, if any, in respect of any Term Asset that materially and adversely affects the interests of the Certificateholders, the party discovering such breach shall give prompt written notice to the other parties hereto (but in any event within 10 Business Days).

 

Section 2.3                  Repurchase or Substitution of Certain Term Assets by the Term Asset Provider.  (a)  If and to the extent provided for in a Series Supplement relating to a given Series of Certificates, upon discovery or receipt of notice pursuant to Section 2.2 that a document is missing or defective, the Trustee shall immediately notify the Depositor, the Administrative Agent, if any, and the Rating Agency that such document is defective or missing and, unless the Depositor provides to the Trustee an Officer’s Certificate stating such missing or defective document will not have a materially adverse effect on the related Trust, the Administrative Agent, if any, shall immediately so notify the Term Asset Provider and require that the Term Asset Provider deliver such missing document or cure such defect within 60 days from the date on which such Term Asset Provider was first notified of such missing document or defect, and if such Term Asset Provider does not deliver such missing document or cure such defect in all material respects during such period, the Administrative Agent, if any, shall use its best efforts to enforce the Term Asset Provider’s obligation, if any, under the related Term Asset Purchase Agreement to repurchase such Term Asset from the Trustee on behalf of the Trust at the applicable Purchase Price within 90 days after the date on which the Term Asset Provider was first notified of such missing document or defect.  The Purchase Price for the repurchased Term Asset shall be delivered to the Administrative Agent, if any, or to the Trustee directly for credit to the Certificate Account and the Trustee, upon receipt either of certification by the Administrative Agent, if any, of such credit or of such credit directly, shall release to the Term Asset Provider the related documents in its possession and shall execute and deliver such instruments of transfer or assignment on behalf of the Trust, in each case without recourse, as shall be necessary to vest in the Term Asset Provider any Term Asset released pursuant hereto, and the Trustee shall have no further obligations with regard to such documents.  The foregoing notwithstanding, if and to the extent the Series Supplement provides, the Term Asset Provider may, as an alternative to repurchasing any such Term Asset as provided above, if and to the extent so provided in the Term Asset Purchase Agreement, cause such Term Asset to be removed from the Trust (in which case it shall become a Deleted Term Asset) by agreeing to substitute one or more Qualified Substitute Term Assets in the manner and subject to the limitations set forth in Section 2.3(b) and the related Series Supplement. It is understood and agreed that the obligation of the Term Asset Provider to repurchase or substitute for any Term Asset as to which a constituent document is missing or a defect in a constituent document exists shall, if such defect is not cured or such missing document is not provided, constitute (unless otherwise specified in the applicable Series Supplement) the sole remedy respecting such omission or defect available to the Certificateholders or the Trustee on behalf of the Certificateholders.  It is further understood and agreed that, unless otherwise provided in the related Series Supplement, in no event shall either the Depositor or the Administrative Agent, if any, be obligated to repurchase or substitute for such a Term Asset, regardless of whether the Term Asset Provider defaults on its obligation to repurchase or substitute for such a Term Asset.

 

 

(b)   If and to the extent provided for in a Series Supplement relating to a given Series of Certificates, with respect to any Deleted Term Asset for which the Depositor or the Term Asset Provider substitutes a Qualified Substitute Term Asset or Assets, such substitution shall be effected by the Depositor or Term Asset Provider delivering to the Trustee or a custodian on its behalf such Qualified Substitute Term Asset or Assets and such documents and agreements, with all necessary endorsements thereon, as would be required under the terms of Section 2.1, together with an Officer’s Certificate of the Depositor or relevant Term Asset Provider certifying that each such Qualified Substitute Term Asset satisfies the definition thereof and the requirements under this Section.  The Trustee or such custodian shall acknowledge receipt of such Qualified Substitute Term Asset or Assets and, within five Business Days thereafter, review such documents in the manner specified in Section 2.2.  The Depositor shall give or cause to be given written notice to the Certificateholders of such Series and the Rating Agency that such substitution has taken place and shall amend the Term Asset Schedule to reflect (with a copy of the amended Term Asset Schedule to the Trustee) the removal of such Deleted Term Asset from the terms of this Agreement and the substitution of the Qualified Substitute Term Asset or Assets.  Upon such substitution, such Qualified Substitute Term Asset or Assets shall be subject to the terms of this Agreement in all respects, including those related to the representations and warranties included in the Term Asset Purchase Agreement as of the date of substitution.  The terms upon which such substitution may be effected shall be specified in the applicable Series Supplement.

 

Section 2.4                   Representations and Warranties of the Depositor and Representations, Warranties and Covenants of the Administrative Agent.  (a)  The Depositor hereby represents and warrants to the Trustee that as of the Closing Date or as of such other date specifically provided herein or in the applicable Series Supplement:

 

	(i)   the Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
	(ii)   with respect to the related Series Supplement, to the Depositor’s knowledge, the information set forth in the related Term Asset Schedule with respect to each Term Asset is true and correct in all material respects at the date or dates respecting which such information is furnished;

                          

                          

 

 

	(iii)   the execution and delivery of this Agreement by the Depositor and its performance of and compliance with the terms of this Agreement will not violate the Depositor’s articles of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Depositor is a party or which may be applicable to the Depositor or any of its assets;
	(iv)   the Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement. This Agreement, upon its execution and delivery by the Depositor and assuming due authorization, execution and delivery by the Trustee, will constitute a valid, legal and binding obligation of the Depositor, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered a proceeding in equity or at law);
	(v)   the Depositor is not in violation, and the execution and delivery of this Agreement by the Depositor and its performance and compliance with the terms of this Agreement will not constitute a violation, of any order or decree of any court or any order or regulation of any Federal, State, municipal or governmental agency having jurisdiction over the Depositor or its properties, which violation would reasonably be expected to have a material and adverse effect on the condition (financial or otherwise) or operations of the Depositor or its properties or on the performance of its duties hereunder; and
	(vi)   any additional representations and warranties, if any, that may be specified in the applicable Series Supplement.

                          

It is understood and agreed that the representations and warranties of the Depositor set forth in this Section 2.4(a) shall survive delivery of the respective documents to the Trustee and shall inure to the benefit of the Trustee on behalf of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment.  Upon discovery by any of the Depositor, the Administrative Agent, if any, or the Trustee of a breach of any of the foregoing representations and warranties which materially and adversely affects the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.

 

(b)    The Administrative Agent, if any, shall make such representations, warranties, if any, and covenants that may be specified in the applicable Series Supplement.

 

Upon discovery by any of the Depositor, the Administrative Agent, if any, or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.

 

Section 2.5                   Breach of Representation, Warranty or Covenant.  (a)  Within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of a breach of any representation or warranty of the Depositor set forth in Section 2.4(a) that materially and adversely affects the interests of the Certificateholders of a given Series of Certificates, the Depositor shall cure such breach in all material respects.

 

(b)                         With respect to an Administrative Agent appointed pursuant to the applicable Series Supplement, within 90 days of the earlier of discovery by such Administrative Agent or receipt of notice by such Administrative Agent of a breach of any representation, warranty or covenant of such Administrative Agent set forth in the applicable Series Supplement that materially and adversely affects the interests of the Certificateholders, such Administrative Agent shall cure such breach in all material respects.

 

Section 2.6                   Agreement to Authenticate and Deliver Certificates.  With respect to each Series of Certificates and the related Trust, the Trustee hereby agrees and acknowledges that it will, concurrently with the transfer of and receipt by it of the related Term Assets and delivery to it by the Depositor of forms of Certificates of such Series, cause to be executed, authenticated and delivered to or upon the order of the Depositor, in exchange for the Term Assets and such other assets to be transferred to the Trust for a given Series, Certificates duly executed and authenticated by or on behalf of the Trustee in authorized denominations evidencing ownership of the entire Trust for such Series, all in accordance with the terms and subject to the conditions of Sections 5.2 and 5.13.

 

Section 2.7                   Statement of Intent.  It is the intention of the parties hereto that, for purposes of federal income taxes, state and local income and franchise taxes and any other taxes imposed upon, measured by or based upon gross or net income, the Trust shall be treated as a grantor trust, but failing that, as a partnership.  The terms of this Agreement shall be interpreted to further this intention of the parties.  The parties hereto agree that, unless otherwise required by a change in law occurring after the date hereof, a closing agreement with an applicable tax authority or a final non-appealable judgment of a court of competent jurisdiction, the Trust shall file or cause to be filed annual or other necessary returns, reports and other forms consistent with such intended characterization.  Each Certificateholder and each beneficial owner of a Certificate by acceptance of its Certificate (or its beneficial interest therein) agrees, unless otherwise required by a change in law occurring after the date hereof, a closing agreement with an applicable tax authority or a final non-appealable judgment of a court of competent jurisdiction, to file its own tax returns and reports in a manner consistent with such characterization.

 

ARTICLE III

 

 

Section 3.1                   Administration of each Trust.  (a)  The Trustee (and, to the extent required in the applicable Series Supplement, any Administrative Agent) shall administer the Term Assets owned by each given Trust for the benefit of the Certificateholders of the related Series.  In engaging in such activities, the Trustee (or the Administrative Agent, if applicable) shall, subject to the provisions of Article VI hereof, follow or cause to be followed collection procedures in accordance with the terms of this Agreement and the applicable Series Supplement, the respective Term Assets and any applicable Credit Support Instruments.  With respect to each Trust, and subject only to the above-described standards and the terms of this Agreement, the related Series Supplement and the respective Term Assets and applicable Credit Support Instruments, if any, the Trustee (or the Administrative Agent, if applicable) shall have full power and authority, acting alone or through Sub-Administrative Agents as provided in Section 3.2, to do or cause to be done any and all things in connection with such administration which it deems necessary to comply with the terms of this Agreement and the applicable Series Supplement.

 

(b)                         Without limiting the generality of the terms of paragraph (a) of this Section 3.1, with respect to any Series of Certificates, the Administrative Agent, if any, specified in the applicable Series Supplement shall be hereby authorized and empowered by the Depositor, when such Administrative Agent believes it appropriate in its reasonable judgment and when otherwise required by a Series Supplement, in its own name or in the name of a Sub-Administrative Agent, (i) to instruct the Trustee in writing to make distributions or payments from the Certificate Account or any other Account for such Series, as set forth herein or in the related Series Supplement, and (ii) to the extent specified in the related Series Supplement, to execute and deliver, on behalf of the Certificateholders of such Series and the Trustee or any of them, and upon notice to the Trustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to any of the Term Assets relating to such Series.

 

(c)                         The duties of the Trustee and the Administrative Agent, if any, shall be performed in accordance with applicable local, State and Federal law, and the Trustee (or, if specified in the applicable Series Supplement, the Administrative Agent) shall make any and all filings, reports, notices or applications with, and seek any comments and authorizations from, the Commission and any State securities authority on behalf of the Trust for each Series.  If the applicable Series Supplement appoints an Administrative Agent, the Trustee, in its capacity as Trustee, shall execute, at the written direction of such Administrative Agent, any powers of attorney and other documents necessary or appropriate to enable the Administrative Agent to carry out any of its administrative duties hereunder; provided, however, that the Trustee, in its capacity as Trustee, shall not be accountable for the actions of the Administrative Agent or any Sub-Administrative Agents under such powers of attorney.

 

Section 3.2                   Sub-Administration Agreements Between Administrative Agent or Trustee and Sub-Administrative Agents.

 

(a)                         Unless otherwise provided in a Series Supplement, an Administrative Agent specified in the applicable Series Supplement and the Trustee may enter into Sub-Administration Agreements with one or more Sub-Administrative Agents in order to delegate their administrative obligations with respect to a related Series under this Agreement to such Sub-Administrative Agents; provided, however, that (i) such delegation shall not release either such Administrative Agent or the Trustee, as applicable, from the duties, obligations, responsibilities or liabilities arising under this Agreement; (ii) the Rating Agency Condition shall have been satisfied with respect to the entering into of any such agreement and (iii) such agreements are consistent with the terms of this Agreement and, with respect to Certificates of any Series, the related Series Supplement.  With respect to any Series (or Class within such Series) of Certificates, each Sub-Administration Agreement shall impose on the Sub-Administrative Agent requirements conforming to the provisions set forth in Section 3.1 and provide for administration of the related Trust and all or certain specified Term Assets for such Series consistent with the terms of this Agreement. Additional requirements relating to the scope and contents of any Sub-Administration Agreement may be provided in the applicable Series Supplement.  Such Administrative Agent shall deliver to the Trustee and the Depositor copies of all Sub-Administration Agreements which it enters into, and any amendments or modifications thereof, promptly upon the Administrative Agent’s execution and delivery of any such instruments.

 

 

 

 

 

 

 

 

 

 

 

	(iii)     the amount of compensation received by any Administrative Agent and such other customary information as the Trustee or Administrative Agent, as applicable, deems necessary or desirable, or that any such Certificateholder reasonably requests, to enable such Certificateholders to prepare their tax returns;
	(iv)     if the Series Supplement provides for Advances, the aggregate amount of Advances, if any, included in such distribution, and the aggregate amount of unreimbursed Advances, if any, at the close of business on such Distribution Date;
	(v)     the aggregate stated principal amount and, if applicable, notional amount of the Term Assets related to such Series, the current rating assigned by the Rating Agency thereon and the current interest rate or rates thereon at the close of business on such Distribution Date;
	(vi)     the aggregate Certificate Principal Balance (or Notional Amount, if applicable) of each Class of such Series at the close of business on such Distribution Date; and
	(vii)     as to any Series (or any Class within such Series) for which Credit Support has been obtained, the amount or notional amount of coverage of each element of Credit Support (and rating, if any, thereof) included therein as of the close of business on such Distribution Date.

                          

 

 

 

 

(c)                         Upon the completion of any such Optional Exchange, the Trustee shall give prompt written notice thereof to the Rating Agency.

 

ARTICLE V

 

 

Section 5.1                   The Certificates.  The Certificates of any Series (or Class within such Series) will be issued in fully registered form as Certificates and shall be substantially in the form of the exhibits with respect thereto attached to the applicable Series Supplement.  The aggregate Certificate Principal Balance or Notional Amount of Certificates which may be authenticated and delivered under this Agreement is unlimited.

 

The Certificates may be issued in one or more Series, each of which Series may be issued in one or more Classes, with such further particular designations added or incorporated in such title for the Certificates of any particular Series or Class within such Series as the Board of Directors may determine.  Each Certificate shall bear upon its face the designation so selected for the Series and Class to which it belongs.  All Certificates of the same Series and Class shall be identical in all respects except for the denominations thereof.  All Certificates of all Classes within any one Series at any time Outstanding shall be identical except for differences among the Certificates of the different Classes within such Series specified in the applicable Series Supplement.  Except as otherwise provided in a Series Supplement, all Certificates of a particular Series (and all Classes within such Series) issued under this Agreement shall be in all respects equally and ratably entitled to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery, all in accordance with the terms and provisions of this Agreement.

 

Each Series (and all Classes within such Series) of Certificates shall be created by a Series Supplement authorized by the Board of Directors and establishing the terms and provisions of such Series.  The several Series may differ as between Series and any Class may vary as between the other Classes within any given Series in respect of any of the following matters:

 

 

 

 

 

 

 

 

        

 

 

 

 

 

 

A different Trustee and an Administrative Agent may be appointed by the Depositor for each Series of Certificates prior to the issuance of such Series provided that the Rating Agency Condition is met.  Such Series Supplement shall provide for the appointment of the Trustee or the Administrative Agent or both, as applicable, of such Series and shall add or change any of the provisions of this Agreement as shall be necessary to provide for or facilitate the administration of the trusts hereunder and of the Term Assets; it being understood that nothing contained herein or in such Series Supplement shall constitute the Trustees for different Series as co-trustees for the same Series or the administrative agents for different Series as co-administrative agents for the same Series, and that each Trustee shall be a trustee of a trust or trusts separate and apart from any trust or trusts hereunder of any other Trustee, and that each Administrative Agent shall be an administrative agent of a Trust separate and apart from any other Trust.  Upon final appointment of any new Trustee or Administrative Agent, the Trustee shall provide a notice of such appointment to the Rating Agency not later than 15 days following such appointment.

 

Section 5.2                  Execution, Authentication and Delivery.  (a)  The Certificates shall be executed by the Trustee by a Responsible Officer.  The signature of any of the Responsible Officer may be manual or facsimile.  Certificates bearing the manual or facsimile signature of individuals who were at the time of execution the proper officers of the Trustee shall be binding, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Certificates or did not hold such offices at the date of such Certificates.

 

(b)    Each Certificate shall be dated as of the later of the date specified in the related Series Supplement and the date of its authentication.

 

(c)    No Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, unless there appears on such Certificate a certificate of authentication substantially in one of the forms provided for herein executed by the Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder and is entitled to the benefits of this Agreement.

 

Section 5.3                  Temporary Certificates.  Pending the preparation of Definitive Certificates of any Series (or Class within such Series), the Trustee may execute, and upon receipt of a Depositor Order, the Trustee shall authenticate and deliver temporary Certificates which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Certificates in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as may be authorized by such Depositor Order.  Any such temporary Certificate may be in global form, representing all or a portion of the Outstanding Certificates of such Series or Class.  Every such temporary Certificate shall be executed by the Trustee and shall be authenticated and delivered by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Definitive Certificate or Definitive Certificates in lieu of which it is issued.

 

If temporary Certificates of any Series (or Class within such Series) are issued, the Depositor will cause Definitive Certificates of such Series or Class to be prepared without unreasonable delay and (a) after the preparation of Definitive Certificates of such Series or Class, the temporary Certificates of such Series or Class shall be exchangeable for Definitive Certificates of such Series or Class upon surrender of the temporary Certificates of such Series or Class at the office of the Trustee in a Place of Distribution for such Series or Class, without charge to the Holder, except as provided in Section 5.4 in connection with a transfer and (b) upon surrender for cancellation of any one or more temporary Certificates of any Series or Class within such Series the Trustee shall execute and the Trustee shall authenticate and deliver in exchange therefor Definitive Certificates with a like Certificate Principal Balance or Notional Amount, as applicable, of the same Series (or Class within such Series) of authorized denominations and of like tenor.  Until so exchanged, temporary Certificates of any Series (or Class within such Series) shall in all respects be entitled to the same benefits under this Agreement as Definitive Certificates of such Series or Class, except as otherwise specified in the applicable Series Supplement with respect to the payment of interest on Global Securities in temporary form.

 

Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Definitive Certificates represented thereby pursuant to this Section 5.3 or Section 5.4, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the aggregate Certificate Principal Balance or Notional Amount, as applicable, evidenced thereby, whereupon the aggregate Certificate Principal Balance or Notional Amount, as applicable, of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.

 

Section 5.4                   Registration; Registration of Transfer and Exchange.  The Trustee shall cause to be kept a register for each Series of Certificates (the registers maintained in such office and in any other office or agency of the Trustee in a Place of Distribution being herein sometimes collectively referred to as the “Certificate Register”) in which a transfer agent and registrar (which may be the Trustee) (the “Certificate Registrar”) shall provide for the registration of Certificates and the registration of transfers and exchanges of Certificates.  The Trustee is hereby initially appointed Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided; provided, however, that the Trustee may appoint one or more co-Certificate Registrars.  Upon any resignation of any Certificate Registrar, the Trustee shall promptly appoint a successor or, in the absence of such appointment, assume the duties of Certificate Registrar.

 

 

 

If a Person other than the Trustee is appointed by the Trustee as Certificate Registrar, the Trustee will give the Depositor prompt written notice of the appointment of a Certificate Registrar and of the location, and any change in the location, of the Certificate Register, and the Trustee shall have the right to rely upon a certificate executed on behalf of the Certificate Registrar by an Executive Officer thereof as to the names and addresses of the Holders of the Certificates and the principal amounts and numbers of such Certificates.

 

Upon surrender for registration of transfer of any Certificate of any Series (or Class within such Series) at the office or agency of the Trustee, if the requirements of Article 8 of the Uniform Commercial Code are met to the Trustee’s satisfaction, the Trustee shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of any authorized denominations, of a like Series, Class and aggregate Certificate Principal Balance or Notional Amount, as applicable.

 

Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the individual Certificates represented thereby, a Global Security representing all or a portion of the Certificates of a Series (or Class within such Series) may not be transferred except as a whole by the Depositary for such Series or Class to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such Series or Class or a nominee of such successor Depositary.

 

At the option of the Holder, Certificates of any Series (or Class within such Series) (other than a Global Security, except as set forth below) may be exchanged for other Certificates of the same Series or Class of any authorized denomination or denominations of like tenor and aggregate Certificate Principal Balance or Notional Amount, as applicable, upon surrender of the Certificates to be exchanged at the office or agency of the Trustee maintained for such purpose.

 

Whenever any Certificates are so surrendered for exchange, the Trustee shall execute and the Trustee shall authenticate and deliver the Certificates that the Holder making the exchange is entitled to receive.

 

If at any time the Depositary for the Certificates of a Series (or Class within such Series) notifies the Depositor that it is unwilling or unable to continue as Depositary for the Certificates of such Series or Class or if at any time the Depositary for the Certificates of such Series or Class shall no longer be eligible under Section 5.9(b), the Depositor shall appoint a successor Depositary with respect to the Certificates of such Series or Class.  If a successor Depositary for the Certificates of such Series or Class is not appointed by the Depositor within 90 days after the Depositor receives such notice or becomes aware of such ineligibility, the Depositor’s election pursuant to Section 5.1 shall no longer be effective with respect to the Certificates of such Series or Class and the Trustee will execute, and the Trustee, upon receipt of a Depositor Order for the authentication and delivery of individual Certificates of such Series or Class, will authenticate and deliver individual Certificates of such Series or Class in an aggregate Certificate Principal Balance or Notional Amount, as applicable, equal to the aggregate Certificate Principal Balance or Notional Amount, as applicable, of the Global Security or Securities representing Certificates of such Series or Class in exchange for such Global Security or Securities.

 

To the extent permitted by law, the Depositor may at any time and in its sole discretion determine that individual Certificates of any Series (or Class within such Series) issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities.  In such event the Trustee shall execute, and the Trustee, upon receipt of a Depositor Order for the authentication and delivery of individual Certificates of such Series or Class, shall authenticate and deliver, individual Certificates of such Series or Class in an aggregate Certificate Principal Balance or Notional Amount, as applicable, equal to the aggregate Certificate Principal Balance or Notional Amount, as applicable, of the Global Security or Securities representing Certificates of such Series or Class in exchange for such Global Security or Securities.

 

If specified by the Depositor pursuant to Section 5.1 with respect to a Series (or Class within such Series) of Certificates, the Depositary for such Series may surrender a Global Security for such Series or Class in exchange in whole or in part for individual Certificates of such Series or Class on such terms as are acceptable to the Depositor and such Depositary.  Thereupon, the Trustee shall execute, and the Trustee, upon receipt of a Depositor Order, shall authenticate and deliver, without service charge,

 

                         

In any exchange provided for in any of the preceding three paragraphs, the Trustee shall execute, and the Trustee, upon receipt of a Depositor Order, will authenticate and deliver individual Certificates in registered form in authorized denominations.

 

Upon the exchange of a Global Security for individual Certificates, such Global Security shall be cancelled by the Trustee.  Individual Certificates issued in exchange for a Global Security pursuant to this Section 5.4 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its Participants, any indirect participants or otherwise, shall instruct the Trustee.  The Trustee shall deliver such Certificates to the Persons in whose names such Certificates are so registered.

 

All Certificates issued upon any registration of transfer or exchange of Certificates shall constitute complete and indefeasible evidence of beneficial ownership in the Trust related to such Certificates and be entitled to the same benefits under this Agreement as the Certificates surrendered upon such registration of transfer or exchange.

 

Every Certificate presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar, duly executed, by the Holder thereof or its attorney duly authorized in writing, with such signature guaranteed by a brokerage firm or financial institution that is a member of a Securities Approved Medallion Program such as Securities Transfer Agents Medallion Program (STAMP), Stock Exchange Medallion Program (SEMP) or New York Stock Exchange Inc. Medallion Signature Program (MSP).

 

No service charge shall be made to a Holder for any registration of transfer or exchange of Certificates, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Certificates, other than exchanges pursuant to Section 5.3 not involving any transfer.

 

Section 5.5                   Mutilated, Destroyed, Lost and Stolen Certificates.  If (i) any mutilated Certificate is surrendered to the Trustee at its Corporate Trust Office (in the case of Certificates) or (ii) the Depositor and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Certificate, and there is delivered to the Depositor and the Trustee such security or indemnity as they may require to hold each of them and any Paying Agent harmless, and neither the Depositor nor the Trustee receives notice that such Certificate has been acquired by a protected purchaser, then the Trustee shall execute and the Trustee, upon receipt of a Depositor Order, shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate a new Certificate of the same Series and Class of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding.

 

Upon the issuance of any new Certificate under this Section, the Depositor may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Certificate of any Series or Class issued pursuant to this Section shall constitute complete and indefeasible evidence of beneficial ownership in the Trust related to such Series, whether or not the destroyed, lost or stolen Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Certificates of that Series or Class duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates.

 

Section 5.6                   Distribution of Interest; Interest Rights Preserved.  (a)  Interest on any Certificate that is payable and is punctually paid or duly provided for on any Distribution Date shall be distributed to the Person in whose name such Certificate (or one or more Predecessor Certificates) is registered at the close of business on the related Record Date notwithstanding the cancellation of such Certificate upon any transfer or exchange subsequent to such related Record Date. The distribution of interest on Certificates shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 5.1) or, at the option of the Trustee, by check mailed to the address of the Person entitled thereto as such address shall appear in the Certificate Register or, if provided pursuant to Section 5.1 and in accordance with arrangements satisfactory to the Trustee, at the option of the Holder by wire transfer to an account designated by the Holder.

 

(b)    Subject to the foregoing provisions of this Section 5.6, each Certificate delivered under this Agreement upon transfer of or in exchange for or in lieu of any other Certificate shall carry the rights to interest accrued and undistributed, and to accrue, that were carried by such other Certificate.

 

(c)    All computations of interest due with respect to any Certificate of any Series or Class within such Series shall be made as specified in the Series Supplement applicable to that particular Series or Class of Certificates.

 

(d)    With respect to any computations or calculations to be made under this Agreement, the applicable Series Supplement and the Certificates, except as otherwise provided, (i) all percentages resulting from any calculation of accrued interest will be rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001), with five one-millionths of a percentage point rounded upward, and (ii) all currency amounts will be rounded to the nearest one-hundredth of a unit (with .005 of a unit being rounded upward).

 

(e)    Notwithstanding any other provisions in this Agreement, the right of the Holder of any Certificate to receive any of the payments described above in this Section 5.6, and to institute suit for the enforcement of any such payment on or after the date such payment is payable, shall not be impaired without the consent of such Holder.

 

Section 5.7                   Persons Deemed Owners.  The Depositor, the Trustee and the Administrative Agent, if any, and any agent of the Depositor, the Trustee or the Administrative Agent, if any, may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions of principal of (and premium, if any) and (subject to Section 5.6) interest, if any, on such Certificate and for all other purposes whatsoever, whether or not such Certificate be overdue, and neither the Depositor, the Trustee, the Administrative Agent, if any, nor any agent of the Depositor, the Trustee nor the Administrative Agent, if any, shall be affected by notice to the contrary.  All distributions made to any Holder, or upon its order, shall be valid, and, to the extent of the sum or sums paid, effectual to satisfy and discharge the liability for moneys distributable upon such Certificate.

 

None of the Depositor, the Trustee, the Administrative Agent, if any, or any of their agents will have any responsibility or liability for any aspect of the records relating to or distributions made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

In connection with any notice or other communication to be provided to Holders pursuant to this Agreement by the Trustee with respect to any consent or other action to be taken by Holders, the Trustee shall establish a record date for such consent or other action and in the case of Global Certificates, give the Depositary notice of such record date not less than 15 calendar days in advance of such record date to the extent possible.  Such record date shall be the later of thirty (30) days prior to the first solicitation of such consent or other action or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 3.19 hereof.

 

Section 5.8                   Cancellation.  Unless otherwise specified pursuant to Section 5.1 for Certificates of any Series, all Certificates surrendered for payment, redemption, transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it.  No Certificates shall be authenticated in lieu of or in exchange for any Certificates cancelled as provided in this Section, except as expressly permitted by this Agreement.

 

Section 5.9                   Global Securities.  (a)  If the Series Supplement pursuant to Section 5.1 provides that a Series (or Class within such Series) of Certificates shall be represented by one or more Global Securities, then the Trustee shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent an aggregate initial Certificate Principal Balance or Notional Amount, as applicable, equal to the aggregate initial Certificate Principal Balance or Notional Amount, as applicable, of the Certificates of such Series or Class to be represented by such one or more Global Securities, (ii) shall be registered, in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:  “Unless and until it is exchanged in whole or in part for the individual Certificates represented hereby, this Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”

 

No Holder of a Certificate of such Series or Class will receive a Definitive Certificate representing such Holder’s interest in such Certificate or Certificates, except as provided in Section 5.11.  Unless and until definitive, fully registered Certificates (the “Definitive Certificates”) have been issued to Holders of such Series or Class pursuant to Section 5.11:

 

	(i)   the provisions of this Section 5.9 shall be in full force and effect;
	(ii)   the Certificate Registrar and the Trustee shall be entitled to deal with the Depositary for all purposes of this Agreement (including the distribution of principal of, and premium, if any, and interest on the Certificates and the giving of instructions or directions hereunder) and shall have no obligation to the Certificate Owners;
	(iii)   to the extent that the provisions of this Section 5.9 conflict with any other provisions of this Agreement, the provisions of this Section 5.9 shall control;
	(iv)   the rights of Certificate Owners of such Series or Class shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such Certificate Owners and the Depositary or its Participants; and

 

 

 

 

(v)      whenever this Agreement requires or permits actions to be taken based upon instructions or directions of Holders of Certificates of such Series or Class evidencing a specified percentage of the aggregate Voting Rights of such Series or Class, the Depositary shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Certificate Owners of such Series or Class or Participants in such Depositary’s system owning or representing, respectively, such required percentage of the beneficial interest in the Certificates of such Series or Class and has delivered such instructions to the Trustee.

                          

(b)                         Each Depositary designated pursuant to Section 5.1 for a Global Security in registered form must, at the time of its designation and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

 

Section 5.10                 Notices to Depositary.  Whenever a notice or other communication to the Holders of a Series or Class within such Series represented by one or more Global Securities is required under this Agreement, unless and until Definitive Certificates for such Series or Class shall have been issued to such Certificate Owners pursuant to Section 5.11, the Trustee shall give all such notices and communications specified herein to be given to Holders of the Certificates of such Series to the Depositary, and shall have no obligation to the Certificate Owners.

 

Section 5.11                 Definitive Certificates.  If in respect of a Series (or Class within such Series) represented by one or more Global Securities (i) the Depositor advises the Trustee in writing that the Depositary is no longer willing or able to properly discharge its responsibilities with respect to the Certificates of such Series or Class and the Depositor is unable to locate a qualified successor, (ii) to the extent permitted by law, the Depositor at its option advises the Trustee in writing that it elects to terminate the book-entry system for such Series or Class through the Depositary or (iii) after the occurrence of an Administrative Agent Termination Event, Certificate Owners representing beneficial interests aggregating at least a majority (or such other Required Percentage--Definitive Certificates that may be specified in a Series Supplement) of the Voting Rights of the Certificates of such Series or Class advise the Depositary in writing that the continuation of a book-entry system for such Series or Class through the Depositary is no longer in the best interests of the Certificate Owners of such Series or Class, then the Depositary shall notify all Certificate Owners or Participants in the Depositary’s system with respect to such Series or Class and the Trustee of the occurrence of any such event and of the availability of Definitive Certificates for such Series or Class to Certificate Owners of such Series or Class.  Upon surrender to the Trustee of the Global Securities of such Series or Class by the Depositary, accompanied by registration instructions, the Trustee shall execute and the Trustee shall authenticate the Definitive Certificates of such Series or Class in accordance with the instructions of the Depositary.  None of the Depositor, the Certificate Registrar or the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates of such Series or Class, the Trustee shall recognize the holders of the Definitive Certificates of such Series or Class as Holders.

 

Section 5.12                 Currency of Distributions in Respect of Certificates.

 

(a)                         Except as otherwise specified pursuant to Section 5.1 for Certificates of any Series (or Class within such Series), distributions of the principal of (and premium, if any) and interest on Certificates of such Series or Class will be made in Dollars.

 

(b)                         For purposes of any provision of the Agreement where the Holders of Outstanding Certificates may perform an act that requires that a specified percentage of the aggregate Voting Rights of the Certificates of all Series perform such act and for purposes of any decision or determination by the Trustee of amounts due and not distributed for the principal of (and premium, if any) and interest on the Certificates of all Series in respect of which moneys are to be disbursed ratably, the principal of (and premium, if any) or notional amount of, as applicable, and interest on the Outstanding Certificates denominated in a Foreign Currency will be the amount in Dollars based upon exchange rates, determined as specified pursuant to Section 5.1 for Certificates of such Series, as of the date for determining whether the Holders entitled to perform such act have performed it or as of the date of such decision or determination by the Trustee, as the case may be.

 

(c)                         With respect to Certificates of any Series (or Class within such Series), any decision or determination to be made regarding exchange rates shall be made by an Exchange Rate Agent appointed by the Depositor; provided that such Exchange Rate Agent shall accept such appointment in writing and the terms of such appointment shall be acceptable to the Trustee and shall, in the opinion of the Depositor at the time of such appointment, require such Exchange Rate Agent to make such determination by a method consistent with the method provided in the applicable Series Supplement for the making of such decision or determination. All decisions and determinations of such Exchange Rate Agent regarding exchange rates shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Depositor, the Trustee and all Holders of the Certificates of such Series or Class.

 

(d)                         If distributions in respect of a Certificate are required to be made in a Specified Currency other than Dollars and such currency is unavailable due to the imposition of exchange controls or other circumstance beyond the control of the Trustee, the Administrative Agent, if any, and the Depositor or is no longer used by the government of the country issuing such Specified Currency or is no longer commonly used for the settlement of transactions by public institutions of or within the international banking community, then all distributions in respect of such Certificate shall be made in Dollars until such Specified Currency is again so used in the manner specified in the related Series Supplement.

 

Section 5.13                 Conditions of Authentication and Delivery of New Series.  Certificates of a new Series may be issued at any time and from time to time after the execution and delivery of this Agreement.  The Trustee shall execute and deliver Certificates of such Series to the Trustee and the Trustee shall authenticate and deliver such Certificates upon a Depositor Order and upon delivery by the Depositor to the Trustee of the following:

 

Section 5.14                 Appointment of Paying Agent.  The Trustee may appoint one or more paying agents (each, a “Paying Agent”) with respect to the Certificates of any Series.  Any such Paying Agent shall be authorized to make distributions to Certificateholders of such Series from the Certificate Account for such Series pursuant to the provisions of the applicable Series Supplement and shall report the amounts of such distributions to the Trustee.  Any Paying Agent shall have the revocable power to withdraw funds from such Certificate Account for the purpose of making the distributions referred to above.  The Trustee may revoke such power and remove the Paying Agent if the Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect.  The Paying Agent shall initially be the Trustee and any co-paying agent chosen by the Depositor and acceptable to the Trustee, including, if and so long as any Series or Class within such Series is listed on the Luxembourg Stock Exchange and such exchange so requires, a co-paying agent in Luxembourg or another European city.  Any Paying Agent shall be permitted to resign as Paying Agent upon 30 days’ written notice to the Trustee.  In the event that the Trustee shall no longer be the Paying Agent, the Trustee shall appoint a successor or additional Paying Agent.  The Trustee shall cause each successor to act as Paying Agent to execute and deliver to the Trustee an instrument in which such successor or additional Paying Agent shall agree with the Trustee that (i) it will hold all sums, if any, held by it for distribution to the Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums shall be distributed to such Certificateholders and (ii) it will give the Trustee notice of any default by any obligor on the applicable Series of Certificates or on the Term Assets.  The Paying Agent shall return all unclaimed funds to the Trustee and upon removal shall also return all funds in its possession to the Trustee.  The provisions of Sections 8.1, 8.2, 8.3, 8.5 and 8.9 shall apply to the Trustee also in its role as Paying Agent, for so long as the Trustee shall act as Paying Agent.  Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise.  Notwithstanding anything contained herein to the contrary, the appointment of a Paying Agent pursuant to this Section 5.14 shall not release the Trustee from the duties, obligations, responsibilities or liabilities arising under this Agreement other than with respect to funds paid to such Paying Agent.

 

Section 5.15                 Authenticating Agent.  (a)  The Trustee may appoint one or more Authenticating Agents (each, an “Authenticating Agent”) with respect to the Certificates of any Series which shall be authorized to act on behalf of the Trustee in authenticating such Certificates in connection with the issuance, delivery and registration of transfer or exchange of such Certificates.  Whenever reference is made in this Agreement to the authentication of Certificates by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.  Each Authenticating Agent must be acceptable to the Depositor and the Administrative Agent, if any.

 

Notwithstanding anything contained herein to the contrary, the appointment of an Authenticating Agent pursuant to this Section 5.15 shall not release the Trustee from the duties, obligations, responsibilities or liabilities arising under this Agreement.

 

(b)                         Any institution succeeding to the corporate agency business of any Authenticating Agent shall continue to be an Authenticating Agent without the execution or filing of any power or any further act on the part of the Trustee or such Authenticating Agent.  An Authenticating Agent may at any time resign by giving notice of resignation to the Trustee and to the Depositor.  The Trustee may at any time terminate the agency of an Authenticating Agent by giving notice of termination to such Authenticating Agent and to the Depositor.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time an Authenticating Agent shall cease to be acceptable to the Trustee or the Depositor, the Trustee promptly may appoint a successor Authenticating Agent.  Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.  No successor Authenticating Agent shall be appointed unless acceptable to the Administrative Agent, if any, and the Depositor.  The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.  The provisions of Section 8.1, 8.2 and 8.3 shall be applicable to any Authenticating Agent.

 

(c)                         Pursuant to an appointment made under this Section, the Certificates may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:

 

This is one of the Certificates described in the Trust Agreement and the related Series Supplement.

 

 

			as Authenticating Agent
			for the Trustee,
		By
			Authorized Signatory

 

Section 5.16                 Events of Default.  If any Event of Default shall occur and be continuing with respect to any class of Certificates, then, and in each and every case, the Trustee shall exercise any rights in respect of the related Term Assets as provided in the applicable Series Supplement.

 

Section 5.17                Control by Holders.  The Holders of Outstanding Certificates representing the Required Percentage -- Direction of Trustee shall, subject to provision being made for indemnification against costs, expenses and liabilities in a form satisfactory to the Trustee, have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Trustee with respect to any Term Assets Issuer payment default; provided, however, that:

 

	(i)   such direction shall not be in conflict with any rule of law or with this Agreement;
	(ii)   subject to Section 8.7, the Trustee need not take any action that it determines might cause it to incur any liability or might materially adversely affect the rights of any Holders not consenting to such action.

Section 5.18                 Waiver of Past Defaults.

 

The Holders of Outstanding Certificates representing the Required Percentage -- Direction of Trustee may waive any past default and its consequences except (i) a Term Assets Issuer payment default or other default in the payment of principal of or interest on any of the Certificates or (ii) a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Certificate.  In the case of any such waiver, the Depositor, the Trustee and the Holders shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereto.

 

ARTICLE VI

 

 

Section 6.1                   Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent.

 

 

    (2)             The names of such Reports and the dates on which they are required to be filed with the Commission are as follows:

 

 

 

 

Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Regulation S-K under the Securities Act.

 

The Depositor acknowledges and agrees that the performance of the Trustee’s obligations under this Section 6.1 is in part dependent upon the Depositor providing certain of  the relevant information to be included in the applicable reports in a timely fashion and upon one or more officers of the Depositor executing the applicable reports in a timely manner. The Depositor shall reasonably cooperate with the Trustee in connection with the Trustee’s performance of its obligations under this Section 6.1.  The Depositor shall designate the financial printer or other entity (the “Report Filer”) (which may be the Depositor) that will be responsible for the processing of the applicable reports and the Depositor shall reimburse the Trustee for the reasonable out of pocket fees of the Financial Filer; provided that, to the extent the Depositor fails to designate the Report Filer, the Trustee shall choose a Financial Filer. Notwithstanding the immediately preceding sentence, the Trustee shall have no liability for the performance of the Financial Filer to the extent any failure of the Financial Filer occurs through no fault of the Trustee. The Trustee shall have no liability with respect to any failure to properly or timely file such periodic reports resulting from or relating to the Trustee’s inability or failure to obtain any information required to be obtained by it not resulting from its own negligence or willful misconduct.

 

(b)                         The Depositor shall deliver to the Trustee, not less often than annually, an Officer’s Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:

 

	(i)   a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer’s supervision;
	(ii)   to the best of such Executive Officer’s knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
	(iii)   to the best of such Executive Officer’s knowledge, based on such review, the reports filed pursuant to Section 6.1(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
	(iv)   to the best of such Executive Officer’s knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports.

 

The text of the Officer’s Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission.

 

A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.

 

(c)    Each of the Trustee and the Administrative Agent (if any) shall provide, at the Depositor’s direction and expense, (i) reports on assessments of compliance with servicing criteria applicable to it under the Trust Agreement and (ii) attestation reports on assessments of compliance with servicing criteria prepared by a registered public accounting firm, both in order to satisfy the Trust’s obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB.

 

A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.

 

(d)    The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.

 

(e)    The Depositor shall deliver to the Trustee, which shall then transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to this Section 6.1 if any, as may be required by rules and regulations prescribed from time to time by the Commission or as directed in writing by the Depositor.

 

(f)     If and only if the Series Supplement provides for the grant of a security interest in the Term Assets to the Trustee, on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the filing of any financing statements and continuation statements as are necessary to perfect and make effective the security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.

 

(g)    If and only if the Series Supplement provides for the grant of a security interest in the Term Assets to the Trustee, at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the filing of any financing statements and continuation statements as is necessary to maintain the security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the security interest created by this Agreement.  Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the security interest of this Agreement until such date in the following calendar year.

 

 

(h)    If and only if the Series Supplement provides for the grant of a security interest in the Term Assets to the Trustee,

 

 

 

 

 

 

 

 

 

 

 

 

(b)    Neither the Depositor, an Administrative Agent, if any, nor any of the directors, officers, employees or agents of the Depositor or such Administrative Agent shall be under any liability to any Trust or the Certificateholders of any Series for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, any such Administrative Agent or any such person against any breach of warranties, representations or covenants made herein, or against any specific liability imposed on such Administrative Agent pursuant hereto, or against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations and duties hereunder.

 

 

Neither the Depositor nor an Administrative Agent, if any, shall be under any obligation to appear in, prosecute or defend any legal action unless such action is related to its respective duties under this Agreement and, in its opinion, does not involve it in any expense or liability; provided, however, that either of the Depositor or such Administrative Agent may in its discretion undertake any such action which it may deem necessary or desirable with respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders hereunder.  The legal expenses and costs of such action and any liability resulting (except any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of reckless disregard of obligations and duties hereunder) shall be allocated as specified in the applicable Series Supplement.

 

Section 6.4                   Limitation on Resignation of the Administrative Agent.  An Administrative Agent appointed pursuant to the applicable Series Supplement shall not resign from the obligations and duties hereby imposed on it except (a) upon appointment by the Trustee of a successor administrative agent and receipt by the Trustee of a letter from the Rating Agency that such a resignation and appointment will satisfy the Rating Agency Condition or (b) upon a determination that its duties hereunder are no longer permissible under applicable law.  Any such determination pursuant to clause (b) of the preceding sentence permitting the resignation of the Administrative Agent shall be evidenced by an Opinion of Counsel to such effect delivered to the Trustee and the Depositor.  No resignation of an Administrative Agent shall become effective until a successor administrative agent shall have assumed the Administrative Agent’s responsibilities, duties, liabilities (other than those liabilities arising prior to the appointment of such successor) and obligations under this Agreement.

 

Section 6.5                   Rights of the Depositor in Respect of the Administrative Agent.  An Administrative Agent appointed pursuant to the applicable Series Supplement shall afford the Depositor and the Trustee, upon reasonable notice, during normal business hours, access to all records maintained by the Administrative Agent in respect of its rights and obligations hereunder and access to officers of the Administrative Agent responsible for such obligations. Upon request, the Administrative Agent shall furnish to the Depositor and the Trustee the Administrative Agent’s most recent financial statements and such other information relating to its capacity to perform its obligations under this Agreement as the Administrative Agent possesses.  To the extent such information is not otherwise available to the public, the Depositor and the Trustee shall not disseminate any information obtained pursuant to the preceding two sentences without the Administrative Agent’s written consent, except as required pursuant to this Agreement to the extent that it is appropriate to do so (i) in working with legal counsel, auditors, taxing authorities or other governmental agencies or (ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Depositor, the Trustee or the Trust.  The Depositor may, but is not obligated to, enforce the obligations of the Administrative Agent under this Agreement and may, but is not obligated to, perform, or cause a designee to perform, any defaulted obligation of the Administrative Agent under this Agreement or exercise the rights of the Administrative Agent under this Agreement; provided, however, that the Administrative Agent shall not be relieved of any of its obligations under this Agreement by virtue of such performance by the Depositor or its designee.  The Depositor shall not have any responsibility or liability for any action or failure to act by the Administrative Agent and is not obligated to supervise the performance of the Administrative Agent under this Agreement or otherwise.

 

 

 

Section 6.6                   Depositor May Purchase Certificates.  The Depositor may at any time purchase Certificates in the open market or otherwise.  Certificates so purchased by the Depositor may, at the discretion of the Depositor, be held or resold.  Certificates beneficially owned by the Depositor will be disregarded for purposes of determining whether the required percentage of the aggregate Voting Rights has given any request, demand, authorization, direction, notice, consent or waiver hereunder.

 

Section 6.7                   The Administrative Agent and Other Parties.  The Person serving as an Administrative Agent, if any, appointed pursuant to the applicable Series Supplement may be the Depositor, the Trustee or an Affiliate of either thereof, and may have normal business relationships with the Depositor, the Trustee or any Affiliates thereof.

 

Section 6.8                   Preferential Collection of Claims Against Depositor.  The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b).  A trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent required by TIA Section 311(a).

 

ARTICLE VII

 

 

Section 7.1                   Administrative Agent Termination Events.  (a) “Administrative Agent Termination Event,” wherever used herein with respect to any Series of Certificates, means any one of the following events:

 

	(i)   a failure by any Administrative Agent specified in the applicable Series Supplement to remit to the Trustee, pursuant to the terms of this Agreement, any funds in respect of collections on Term Assets, Credit Support, if any, and Advances, if any, collected by the Administrative Agent pursuant to the terms of this Agreement that continues unremedied for a period of five days after the date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Administrative Agent by the Depositor or the Trustee (in which case notice shall be provided by telecopy), or to the Administrative Agent, the Depositor and the Trustee by the Holders of Certificates of such Series representing at least 25% of the aggregate Voting Rights; or
	(ii)   a failure on the part of any Administrative Agent specified in the applicable Series Supplement to observe or perform in any material respect any other of the covenants or agreements on the part of the Administrative Agent contained in the Certificates of such Series or in this Agreement which continues unremedied for a period of 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Administrative Agent by the Depositor or the Trustee, or to the Administrative Agent, the Depositor and the Trustee by the Holders of Certificates of such Series representing at least 25% of the aggregate Voting Rights; or

 

                          

 

 

Section 7.2                   Trustee to Act; Appointment of Successor.  The Trustee shall promptly appoint, or petition a court of competent jurisdiction to appoint, an Administrative Agent acceptable to the Rating Agency (such acceptance to be evidenced by satisfaction of the Rating Agency Condition with respect to such appointment) and having a net worth of not less than $15,000,000, as the successor to such Administrative Agent under this Agreement with respect to such Series in the assumption of all or any part of the responsibilities, duties or liabilities of such Administrative Agent under this Agreement with respect to such Series.  The Trustee, the Depositor and any such successor Administrative Agent may agree upon the compensation to be paid with respect thereto.  No appointment of a successor Administrative Agent under this Agreement shall be effective until the assumption by the successor Administrative Agent of all the responsibilities, duties and liabilities placed on the Administrative Agent hereunder and under the related Series Supplement.

 

Section 7.3                   Notification to Certificateholders.  (a) Upon any such termination pursuant to Section 7.2 or appointment of a successor Administrative Agent, the Trustee shall give prompt written notice thereof to Certificateholders of the affected Series in the manner provided in Section 10.5.

 

(b)    Within 60 days after the occurrence of any Administrative Agent Termination Event or event which but for the lack of notice or passage of time or both would constitute an Administrative Agent Termination Event with respect to any Series, the Trustee shall transmit by mail to all Certificateholders of such Series notice of each such Administrative Agent Termination Event or event which but for lack of notice or passage of time or both would constitute an Administrative Agent Termination Event which is known to the Trustee, unless such Administrative Agent Termination Event or event which but for lack of notice or passage of time or both would constitute an Administrative Agent Termination Event shall have been cured or waived.

 

 

Section 7.4                   Waiver of Administrative Agent Termination Events.  Unless otherwise provided in the applicable Series Supplement, the Holders of Certificates of the related Series evidencing not less than the Required Percentage--Waiver of the aggregate Voting Rights may, on behalf of all Certificateholders of such Series, (i) if so provided in the applicable Series Supplement, waive compliance by the Depositor, the Trustee or the Administrative Agent, if any, with certain restrictive provisions of this Agreement as set forth in such Series Supplement prior to the time such compliance is required and (ii) waive any Administrative Agent Termination Event or event which but for lack of notice or passage of time or both would constitute an Administrative Agent Termination Event with respect to such Series; provided, however, that an Administrative Agent Termination Event or event which but for lack of notice or passage of time or both would constitute an Administrative Agent Termination Event with respect to such Series regarding the failure to distribute, in accordance with the terms of this Agreement, amounts received with respect to any Term Asset or any such event with respect to such Series in respect of a covenant or provision of this Agreement the modification or amendment of which would require the consent of the Holders of all outstanding Certificates of such Series, may be waived only by all the Certificateholders of such Series.  Upon any such waiver of an Administrative Agent Termination Event or event which but for lack of notice or passage of time or both would constitute an Administrative Agent Termination Event with respect to such Series, such Administrative Agent Termination Event or event which but for lack of notice or passage of time or both would constitute an Administrative Agent Termination Event shall cease to exist and shall be deemed to have been remedied for every purpose hereunder.  No such waiver shall extend to any subsequent or other Administrative Agent Termination Event or event which but for lack of notice or passage of time or both would constitute an Administrative Agent Termination Event or impair any right consequent thereon except to the extent expressly so waived.

 

ARTICLE VIII

 

 

Section 8.1                   Duties of Trustee; Notice of Defaults.  (a) The Trustee, prior to the occurrence of an Event of Default with respect to any Series and after the curing of all such Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and the related Series Supplement.  During the period an Event of Default with respect to any Series shall have occurred and be continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.  Any permissive right of the Trustee enumerated in this Agreement shall not be construed as a duty.

 

(b)    The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement.  If any such instrument is found not to conform to the requirements of this Agreement, the Trustee shall take action as it deems appropriate to have the instrument corrected, and if the instrument is not corrected to the Trustee’s satisfaction, the Trustee will provide notice thereof to the Depositor, Administrative Agent, if any, and Certificateholders.

 

 

 

 

(d)                         The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Term Assets in which the Certificates evidence an interest.  However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Term Assets or Certificates.

(g)                         Holders of Certificates shall have no recourse against the Depositor or the Trustee for payment defaults on the Term Assets.

 

 

 

 

(h)    Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

Section 8.2                  Certain Matters Affecting the Trustee.  (a)  Except as otherwise provided in Section 8.1:

 

 

 

 

 

 

(b)    All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by it without the possession of any of the Certificates of any Series (or Class within such Series), or the production thereof at the trial or other Proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.

 

(c)    To the extent that the Trust is incompetent or unqualified to perform any obligation required to be performed by the Trust by the terms of this Agreement, then the Trustee on behalf of the Trust shall perform such obligation (unless the Trustee is also incompetent or unqualified, in which case Sections 8.7 and 8.10 shall apply).

 

Section 8.3   Trustee Not Liable for Recitals in Certificates or Term Assets.  The Trustee assumes no responsibility for the correctness of the recitals contained herein and in the Certificates or in any document issued in connection with the sale of the Certificates (other than the signature and authentication on the Certificates).  Except as set forth in Section 8.12, the Trustee makes no representations or warranties as to the validity or sufficiency of this Agreement or of the Certificates of any Series (other than the signature and authentication on the Certificates) or of any Term Asset or related document. The Trustee shall not be accountable for the use or application by the Depositor or the Administrative Agent, if any, of any of the Certificates or of the proceeds of such Certificates.

 

Section 8.4   Trustee May Own Certificates.  The Trustee in its individual capacity or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not Trustee.

 

Section 8.5   Trustee’s Fees and Expenses; Indemnification; Undertaking for Costs.  (a) The Trustee shall be entitled to receive from the Depositor or an affiliate of the Depositor as compensation for the Trustee’s services hereunder, trustee’s fees pursuant to a separate written agreement between the Trustee and the Depositor, and shall be reimbursed for all reasonable expenses, disbursements and advances incurred or made by the Trustee (including the reasonable compensation, disbursements and expenses of its counsel and other persons not regularly in its employ).  The Depositor shall indemnify and hold harmless the Trustee and its successors, assigns, agents and servants against any and all loss, liability or reasonable expense (including attorney’s fees) incurred by it in connection with the administration of this trust and the performance of its duties thereunder.  The Trustee shall notify the Depositor promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Depositor shall not relieve the Depositor of its obligations hereunder.  The Depositor need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.  The indemnities contained in this Section 8.5(a) shall survive the resignation or termination of the Trustee or the termination of this Agreement.

 

(b)    Failure by the Depositor to pay, reimburse or indemnify the Trustee shall not entitle the Trustee to any payment, reimbursement or indemnification from the Trust, nor shall such failure release the Trustee from the duties it is required to perform under this Agreement.  Any unpaid, unreimbursed or unindemnified amounts shall not be borne by the Trust and shall not constitute a claim against the Trust.

 

(c)    All parties to this Agreement agree, and each Holder of any Certificate by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any Proceeding for the enforcement of any right or remedy under this Agreement, or in any Proceeding against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such Proceeding of an undertaking to pay the costs of such Proceeding and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such Proceeding, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 8.5(c) shall not apply to:

 

 

 

 

 

 

Section 8.6    Eligibility Requirements for Trustee.  (a)  The Trustee shall at all times satisfy the requirements of TIA Section 310(a).  The Trustee hereunder shall at all times be a corporation which is not an Affiliate of the Depositor (but may have normal banking relationships with the Depositor or any obligor with respect to the Term Assets with respect to such Series of Certificates and their respective Affiliates) organized and doing business under the laws of any State or the United States, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority.  If such corporation or association publishes reports of conditions at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation or association shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published.  Such corporation or association must be rated in one of the four highest rating categories by the Rating Agency.

 

(b)    The Trustee shall comply with Section 310(b); provided, however, that there shall be excluded from the operation of TIA Section 310(b)(1), any Series Supplement under which other securities are outstanding evidencing ownership interest in obligations of the Term Assets Issuer if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.

 

Section 8.7    Resignation or Removal of the Trustee.  (a)  The Trustee may, with respect to any Series of Certificates, at any time resign and be discharged from any trust hereby created by giving written notice thereof to the Depositor, the Administrative Agent, if any, the Rating Agency and to all Certificateholders of such Series.  Upon receiving such notice of resignation, the Depositor shall promptly appoint a successor trustee for such Series by written instrument, in duplicate, which instrument shall be delivered to the resigning Trustee and to the successor trustee.  A copy of such instrument shall be delivered to such Certificateholders and the Administrative Agent, if any, by the Depositor.  If no such successor trustee shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee for such Series.

 

(b)    If at any time the Trustee shall cease to be eligible in accordance with the provisions of Section 8.6 and shall fail to resign after written request therefor by the Depositor, or if at any time the Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Depositor may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, which instrument shall be delivered to the Trustee so removed and to the successor trustee.  A copy of such instrument shall be delivered to the Certificateholders and the Administrative Agent, if any, by the Depositor.

 

(c)    The Holders of Certificates of any Series representing the Required Percentage--Removal of Trustee of the aggregate Voting Rights may at any time remove the Trustee and appoint a successor trustee by written instrument or instruments, in triplicate, signed by such Holders or their attorneys-in-fact and duly authorized, one complete set of which instruments shall be delivered to the Depositor, one complete set to the Trustee so removed and one complete set to the successor trustee so appointed.  A copy of such instrument shall be delivered to the Certificateholders and the Administrative Agent, if any, by the Depositor.

 

(d)    Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor trustee as provided in Section 8.8.

 

Section 8.8     Successor Trustee.  (a) Any successor trustee appointed as provided in Section 8.7 shall execute, acknowledge and deliver to the Depositor and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder (either with respect to a given Series of Certificates or with respect to all Certificates issued under this Agreement), with the like effect as if originally named as trustee herein.  The predecessor trustee shall deliver to the successor trustee all documents, statements, and other property (including the Term Assets) held by it hereunder, and the Depositor and the predecessor trustee shall execute and deliver such instruments and do such other things as may reasonably be required for more fully and certainly vesting and confirming in the successor trustee all such rights, powers, duties and obligations.  No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 8.6.

 

(b)    Upon acceptance of appointment by a successor trustee as provided in this Section, the Depositor shall transmit notice of the succession of such trustee hereunder to all Holders of Certificates and to the Rating Agency in the manner provided in Section 10.5.

 

Section 8.9     Merger or Consolidation of Trustee.  Any corporation or association into which the Trustee may be merged or converted or with which it may be consolidated or any corporation or association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or association succeeding to the business or substantially all of the assets of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation or association shall be eligible under the provisions of Section 8.6, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.

 

Section 8.10   Appointment of Co-Trustee or Separate Trustee.  (a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the assets of the Trust for a given Series may at the time be located, the Depositor and the Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or separate trustee or separate trustees, of all or any part of such assets of the Trust, and to vest in such Person or Persons, in such capacity, such title to such assets of the Trust, or any part thereof, and, subject to the other provisions of this Section 8.10, such powers, duties, obligations, rights and trusts as the Depositor and the Trustee may consider necessary or desirable.  If the Depositor shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, or in case an Administrative Agent Termination Event shall have occurred and be continuing, the Trustee alone shall have the power to make such appointment.  No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 8.6 hereunder and no notice to Holders of Certificates of the appointment of co-trustee or co-trustees or separate trustee or trustees shall be required under Section 8.8 hereof.  Notwithstanding anything contained herein to the contrary, the appointment of a co-trustee pursuant to this Section 8.10 shall not release the Trustee from the duties, obligations, responsibilities or liabilities arising under this Agreement.

 

 

 

(b)    In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 8.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed by the Trustee, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to such assets of the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee.

 

(c)    Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them.  Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article VIII.  Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee.  Every such instrument shall be filed with the Trustee.

 

(d)    Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.  If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

 

Section 8.11   Appointment of Office or Agency.  As specified in a Series Supplement, the Trustee shall appoint an office or agency in the City of New York where the Certificates may be surrendered for registration of transfer or exchange, and presented for the final distribution with respect thereto, and where notices and demands to or upon the Trustee in respect of the Certificates of the related Series and this Agreement may be served.

 

Section 8.12   Representations and Warranties of Trustee.  The Trustee represents and warrants that:

 

(i)    the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or association;

 

 

 

 

Section 8.13   Trustee to Act Only in Accordance With This Agreement or Pursuant to Instructions of Certificateholders.  The Trustee shall only take such action or shall refrain from taking such action under this Agreement as directed pursuant to a specific provision of this Agreement or, if required hereunder, by all the Certificateholders, and the Trustee shall not otherwise act in respect of the Trust; provided, however, that the Trustee shall not be required to take any such action if it reasonably determines, or receives, at the expense of the Certificateholders, an Opinion of Counsel (with copies thereof delivered to the Certificateholders and the Depositor), that such action is inconsistent with the purpose of the Trust set forth in Section 2.7 or contrary to the terms hereof.

 

Section 8.14   Accounting and Reports to Certificateholders, Internal Revenue Service and Others.  The Trustee shall (a) maintain the books of the Trust on a calendar year basis on the accrual method of accounting, (b) after the close of each calendar year, deliver to each Certificateholder, as may be requested in writing by such Certificateholder and required by the Code and applicable Treasury Regulations or otherwise, such information for such year as may be required to enable such Certificateholder to prepare its federal income tax returns, (c) as specifically directed in writing by the Depositor, file such tax returns relating to the Trust and make such elections as may from time to time be required or appropriate under any applicable state or federal statute or rule or regulation thereunder so as to maintain the Trust’s characterization as other than an association taxable as a corporation for federal income tax purposes, (d) cause such tax returns to be signed in the manner required by law and (e) collect or cause to be collected any withholding tax as described in and in accordance with Subsection 4.4 with respect to income or distributions to Certificateholders.

 

Section 8.15   Signature on Returns.  Except as required by law, the Trustee shall sign on behalf of the Trust any and all tax returns of the Trust presented to it by the Depositor in final execution form.

 

ARTICLE IX

 

 

Section 9.1   Termination upon Purchase or Liquidation of All Term Assets.  (a) The respective obligations and responsibilities under this Agreement of the Depositor, the Administrative Agent, if any, and the Trustee (other than the obligations of any such Administrative Agent to provide for and the Trustee to make distributions to Holders of the Certificates of any given Series as hereafter set forth) shall terminate upon the distribution to such Holders of all amounts held in all the Accounts for such Series or by an Administrative Agent, if any, and required to be paid to such Holders pursuant to this Agreement on the Distribution Date coinciding with or following the earlier to occur of (i) if and as provided in the Series Supplement for such Series, the purchase by, and at the sole option of, the Administrative Agent, if any, as provided in the Series Supplement for such Series, of all remaining Term Assets for such Series held by the Trust for such Series on any Distribution Date, provided that such option may be exercised only if the aggregate principal amount of such Term Assets at the time of any such purchase is less than 10% (or such other percentage as may be specified in such Series Supplement) of the aggregate principal amount of all Term Assets held by such Trust as of the applicable Cut-off Date and (ii) the final payment on or other liquidation (which may include redemption or other purchase thereof by the applicable Term Assets Issuer) (or any Advance with respect thereto) of the last Term Asset held by the Trust for such Series or the disposition of all property acquired upon foreclosure or liquidation of any such Term Asset; provided, however, that in no event shall the trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James, living on the date hereof.

 

(b)    The Administrative Agent shall exercise its option to purchase all the Term Assets held by the Trust pursuant to clause (i) of Section 9.1(a) not later than 91 days prior to the anticipated date of purchase of all such Term Assets, at a price as may be specified in the applicable Series Supplement; provided, however, that such price shall not be less than the then outstanding aggregate principal amount of such Term Assets as determined on the date of purchase.  The proceeds of such purchase will be deposited into the Certificate Account and applied in the same manner and priority that collections on Term Assets would be applied as provided in the applicable Series Supplement.

 

(c)    Written notice of any termination shall be provided as set forth in Section 10.5.

 

(d)    Upon presentation and surrender of the Certificates by the Certificateholders on the Final Scheduled Distribution Date, or the Distribution Date coinciding with or next following the earlier to occur of the occurrences specified in clauses (i) and (ii) of Section 9.1(a), with respect to the applicable Series of Certificates, the Trustee shall distribute to each Holder presenting and surrendering its Certificates (i) the amount otherwise distributable on such Distribution Date in accordance with Section 4.1 in respect of the Certificates so presented and surrendered, if not in connection with the purchase by an Administrative Agent of all the Term Assets or (ii) as specified in the applicable Series Supplement, if in connection with an Administrative Agent’s purchase of all the remaining Term Assets.  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, and shall be disposed of in accordance with this Section 9.1 and Section 4.1 hereof.  Immediately following the deposit of funds in trust hereunder, the Trust for such Series shall terminate.

 

 

 

ARTICLE X

 

 

Section 10.1   Amendment.  (a) This Agreement may be amended from time to time by the Depositor and the Trustee without notice to or the consent of any of the Certificateholders for any of the following purposes:  (i) to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein; (ii) to add or supplement any Credit Support for the benefit of any Certificateholders (provided that if any such addition affects any series or class of Certificateholders differently that any other series or class of Certificateholders, then such addition will not, as evidenced by an Opinion of Counsel, have a material adverse effect on the interests of any affected series or class of Certificateholders); (iii) to add to the covenants, restrictions or obligations of the Depositor, the Administrative Agent, if any, or the Trustee for the benefit of the Certificateholders; (iv) to add, change or eliminate any other provisions with respect to matters or questions arising under this Agreement, so long as (x) any such amendment described in (i) through (iv) will not, as evidenced by an Opinion of Counsel, cause the Trust (unless otherwise specified in a related Series Supplement) to fail to qualify as either a grantor trust or a partnership (other than a publicly traded partnership treated as a corporation) for U.S. federal income tax purposes or result in a sale or exchange of any Certificate for tax purposes and (y) the Trustee has received written confirmation from each Rating Agency rating such Certificates that such amendment will not cause such Rating Agency rating such Certificates to reduce or withdraw the then current rating thereof; (v) to comply with any requirements imposed by the Code; (vi) to evidence and provide for the acceptance of appointment hereunder of a Trustee, as Trustee for a Series of Certificates, and to add to or change any of the provisions of this Agreement as shall be necessary to provide for or facilitate the administration of the separate Trusts  hereunder by more than one Trustee, pursuant to the requirements of Section 5.1 hereof; (vii) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Certificates of one or more Series or to add or change any of the provisions of this Agreement as shall be necessary to provide for or facilitate the administration of the trusts hereunder; or (viii) to provide for the issuance of a new Series of Certificates pursuant to a Series Supplement issued hereunder pursuant to Sections 5.1 and 5.13 hereof.

 

(b)    Without limiting the generality of the foregoing, with respect to any Series this Agreement may also be modified or amended from time to time by the Depositor and the Trustee with the consent of the Holders of Certificates representing the Required Percentage--Amendment of the aggregate Voting Rights of those Certificates to which such modification or amendment relates for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders of Certificates; provided, however, that no such amendment shall (i) reduce in any manner the amount of, or alter the timing of, payments received on Term Assets which are required to be distributed on any Certificate without the unanimous consent of the Holders of such Certificates, (ii) adversely affect in any material respect the interests of the Holders of any Series (or Class within such Series) of Certificates in a manner other than as described in (i), without the consent of the Holders of Certificates of such Series or Class evidencing not less than the Required Percentage--Amendment of the aggregate Voting Rights of such Series or Class or (iii) reduce the percentage of aggregate Voting Rights required by (ii), as described in (ii), without the consent of the Holders of all Certificates of such Series or Class then Outstanding; and provided further that the Depositor shall furnish to the Trustee an Opinion of Counsel (unless otherwise indicated in a related Series Supplement) stating that, in the opinion of such counsel, any such amendment would not affect the characterization of the Trust as either a a grantor trust or a partnership (other than a publicly traded partnership treated as a corporation) for U.S. federal income tax purposes.  Notwithstanding any other provision of this Agreement, for purposes of the giving or withholding of consents pursuant to this Section 10.1, Certificates registered in the name of the Depositor, or any Affiliate thereof, shall be entitled to Voting Rights with respect to matters affecting such Certificates; and provided further that in the event the Rating Agency Condition is not satisfied with respect to such modification or amendment, the Required Percentage--Amendment shall be increased to require an aggregate percentage of the aggregate Voting Rights in the amount specified in the applicable Series Supplement. Notwithstanding any other provision of this Agreement, this Section 10.1(b) shall not be amended without the unanimous consent of the Holders of all such Certificates.

 

(c)    Promptly after the execution of any such amendment or modification, the Trustee shall furnish a copy of such amendment or modification to each Certificateholder of the affected Series or Class and to the Rating Agency. It shall not be necessary for the consent of Certificate-holders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof.  The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Trustee may prescribe.

 

(d)    In executing any amendment, the Trustee shall receive (unless such amendment is consented to by all of the affected Certificateholders), and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that such amendment is the legal, valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with its terms.  The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's own rights, duties or immunities under this Agreement or otherwise.

 

Section 10.2   Counterparts.  This Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument.

 

Section 10.3   Limitation on Rights of Certificateholders.  (a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of the applicable Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of then.

 

(b)    No Certificateholder of a given Series shall have any right to vote (except as expressly provided for herein) or in any manner otherwise control the operation and management of any Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.

 

(c)    No Certificateholder of a given Series shall have any right by virtue of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, unless (i) such Holder previously shall have given to the Trustee a written notice of breach and of the continuance thereof and unless also the Holders of Certificates of such Series evidencing not less than the Required Percentage--Remedies of the aggregate Voting Rights of such Series shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 15 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding. It is understood and agreed that the Trustee shall not be obligated to make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any Certificateholders unless such Certificateholders have offered to the Trustee the reasonable indemnity referred to above.  It is further understood and agreed, and expressly covenanted by each Certificateholder of each Series with every other Certificateholder of such Series and the Trustee, that no one or more Holders of Certificates of such Series shall have any right in any manner whatever by virtue of any provision of this Agreement to affect, disturb or prejudice the rights of the Holders of any other of the Certificates of such Series, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Agreement, except in the manner herein provided and for the equal, ratable and common benefit of all Certificateholders of such Series.  For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Section 10.4   Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely therein without reference to such State’s principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.  EACH OF THE DEPOSITOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CERTIFICATES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 10.5   Notices.  All directions, demands and notices hereunder shall be in writing and shall be delivered as set forth in the applicable Series Supplement.  Any notice required to be provided to a Holder of a Certificate shall be given by first class mail, postage prepaid, at the last address of such Holder as shown in the Certificate Register.  Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given when mailed, whether or not the Certificateholder receives such notice.

 

 

Section 10.6   Severability of Provisions.  If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.

 

Section 10.7   Notice to Rating Agency.  The Trustee shall use its best efforts promptly to provide notice to the Rating Agency with respect to each of the following of which it has actual knowledge:

 

 

	(i)	each annual statement as to compliance described in Section 3.15; and
	(ii)	each annual independent public accountants’ servicing report described in Section 3.1(c).

 

Any such notice pursuant to this Section shall be in writing and shall be deemed to have been duly given if personally delivered or mailed by first class mail, postage prepaid, or by express delivery service to each Rating Agency at the address specified in the applicable Series Supplement.

 

Section 10.8   Grant of Security Interest.  It is the express intent of the parties hereto that each conveyance of any Term Assets by the Depositor to the Trust be, and be construed as, a sale of the Term Assets by the Depositor and not a pledge of or grant of a security interest in any Term Assets by the Depositor to secure a debt or other obligation of the Depositor.  However, in the event that, notwithstanding the aforementioned intent of the parties, any Term Assets are held to be property of the Depositor, then, (a) it is the express intent of the parties that such conveyance constitute a grant of a security interest in such Term Assets by the Depositor to the Trust to secure the obligations of the Depositor under this Agreement and the applicable Series Supplement and (b)(1) this Agreement shall also be a security agreement within the meaning of Article 9 of the New York Uniform Commercial Code; (2) the Depositor hereby grants to the Trustee a security interest in all the Depositor’s right, title and interest, whether now owned or hereafter acquired, in and to such Term Assets and all proceeds thereof, to service the Depositor’s obligations under the Agreement and the applicable Series Supplement.  The Depositor shall take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Term Assets, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such for so long as any of the Term Assets remain outstanding.  Without limiting the generality of the foregoing, the Depositor shall file, or shall cause to be filed, all filings identified by the Depositor to be necessary to maintain the perfection of the Trustee’s security interest in the Term Assets, including (x) continuation statements and (y) such other financing statements as may be occasioned by (1) any change of name of the Depositor or the Trustee, (2) any change of the type or jurisdiction of organization of the Depositor or (3) any transfer of any interest of the Depositor in any Term Asset.

 

Section 10.9   Nonpetition Covenant.  Notwithstanding any prior termination of this Agreement, each of the Trustee (including any Co-Trustee) the Administrative Agent, if any, (including any Sub-Administrative Agent, Authenticating Agent, Calculation Agent, or Paying Agent), the Depositor, each Certificateholder, and each Certificate Owner agrees that it shall not, until the date which is one year and one day after the earlier of a Trust Termination Event or the Final Scheduled Distribution Date, acquiesce, petition or otherwise invoke or cause the Trust to invoke the process of the United States of America, any State or other political subdivision thereof or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government for the purpose of commencing or sustaining a case by or against the Trust under a Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Trust or all or any part of the property or assets of the Trust or ordering the winding up or liquidation of the affairs of the Trust.  The provisions of this Section 10.9 shall survive any termination of the Trust and any termination of the Agreement for one year and one day.

 

Section 10.10   No Recourse.  Provided that there exists no default on the Term Assets, neither the Trustee (including any Co-Trustee), the Administrative Agent, if any (including any Sub-Administrative Agent, Authenticating Agent, Calculation Agent, or Paying Agent) nor the Depositor shall have any recourse to the Term Assets, except as specifically provided in the related Series Supplement.  The provisions of this Section 10.10 shall survive any termination of the Trust and any termination of the Agreement for one year and one day.

 

Section 10.11   Article and Section References.  All article and section references used in this Agreement, unless otherwise provided, are to articles and sections in this Agreement.

 

Section 10.12   Conflict with Trust Indenture Act.

 

(a)    If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Agreement by any of the provisions of the TIA, such required provision shall control.

 

(b)    The provisions of TIA Sections 310 through 317 that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded  by this Agreement) are a part of and govern this Agreement, whether or not physically contained herein.

 

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