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Atherton Capital / Bankers Trust - MASTER CUSTODIAL AGREEMENT
EXHIBIT 10.10 - --------------------------------------------------------------------------------
MASTER CUSTODIAL AGREEMENT
BANKERS TRUST COMPANY,
as Note Custodian
ORINDA MANAGEMENT COMPANY
as Depositor
Dated March 14, 1997
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
ARTICLE II
CUSTODY ACCOUNTS AND CUSTODY RECEIPTS
Section 2.01. Creation of Custody Accounts................................. 4
Section 2.02. Custody Receipts............................................. 5
Section 2.03. Delivery of Custody Receipts................................. 6
Section 2.04. Mutilated, Lost, Stolen or Destroyed Custody Receipts........ 7
Section 2.05. Registration and Transfer of Ownership;
Persons Treated as Owners.................................... 8
Section 2.06. Deposits With Depositories................................... 12
SECTION 2.07. Payment on Custody Receipts.................................. 14
ARTICLE III
ADMINISTRATION AND CUSTODY ACCOUNTS
Section 3.01. Payments in Respect of the Underlying Securities............. 15
Section 3.02. Redemptions; Notices; Consents to Amendments
to Issuance Agreements...................................... 16
Section 3.03. Statements to Owners......................................... 17
Section 3.04. Defaults..................................................... 18
Section 3.05. Unclaimed Monies............................................. 20
Section 3.06. Obligation of Owners With Respect to Certain
Taxes and Filings.......................................... 20
Section 3.07. Transfers of Related Underlying Securities by
Note Custodian............................................. 20
Section 3.08. Termination of Custody Accounts.............................. 20
ARTICLE IV
THE NOTE CUSTODIAN
Section 4.01. Standard of Liability........................................ 21
Section 4.02. Resignation and Removal of the Note
Custodian; Appointment of Successor........................ 23
Section 4.03. Charges and Expenses......................................... 24
Section 4.04. Limitation of Liability...................................... 24
Section 4.05. Non-Petition................................................. 25
ARTICLE V
Section 5.01. Amendments, Etc............................................. 25
Section 5.02. Counterparts................................................ 26
Section 5.03. Exclusive Benefit of Parties; Effective Date................ 26
Section 5.04. Invalidity of Provisions.................................... 26
Section 5.05. Notices..................................................... 26
Section 5.06. Business Day................................................ 27
Section 5.07. Term of Agreement........................................... 27
Section 5.08. Governing Law............................................... 27
Section 5.09. Headings.................................................... 27
APPENDIX A - Definitions EXHIBIT 1 - Form of Class A Custody Receipt EXHIBIT 2 - Form of Class A-IO Custody Receipt EXHIBIT 3 - Form of Investment Letter Annex 1 - Form of Terms Agreement
MASTER CUSTODIAL AGREEMENT
PRELIMINARY STATEMENT
MASTER CUSTODIAL AGREEMENT dated March 14, 1997, between BANKERS TRUST COMPANY, a New York banking corporation, as custodian for the Owners from time to time of Custody Receipts (the "Note Custodian"), and Orinda Management Company, as depositor (the "Depositor"), for the benefit of the Owners from time to time of Custody Receipts. (Capitalized terms used herein and not otherwise defined shall have the meanings provided in Article I hereof.)
WHEREAS, the Note Custodian and the Depositor desire to enter into this Custodial Agreement to provide for the issuance of one or more Series of Custody Receipts, each Series of Custody Receipts to be composed of Class A Custody Receipts and Class A-IO Custody Receipts evidencing the Underlying Securities indicated on the related Custody Receipts Register on the terms and conditions set forth herein and in the related Terms Agree ment; and
WHEREAS, the parties hereto desire to establish the terms and conditions pursuant to which the Underlying Securities are to be deposited with, and held in custody by, the Note Custodian, the terms and conditions for the issuance, transfer and exchange of Custody Receipts and the terms for the payment of certain fees and expenses associated with this Custodial Agreement;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree, for the benefit of the Owners from time to time of Custody Receipts, as follows:
ARTICLE I
Capitalized terms used herein and not defined in this Article I are used with the definitions assigned thereto in Appendix A to the related Terms Agreement which is incorporated herein and made a part hereof.
"Authorized Denomination" means, with respect to a Series of Custody Receipts, the Authorized Denomination set forth in the related Terms Agreement.
"Authorized Officer" means with respect to the Note Custodian, any officer assigned to the Corporate Trust Office, including any managing director, vice president, assistant vice president, assistant treasurer, assistant secretary or any other officer of the Note Custodian customarily performing functions
similar to those performed by any of the above designated officers and having direct responsibility for the administration of this Agreement, and also, with respect to a particular matter, any other officer, to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject.
"Beneficial Owner" means, with respect to a Custody Receipt that is a Book- Entry Custody Receipt, the person or entity who is the beneficial owner of such Book-Entry Custody Receipt.
"Book-Entry Custody Receipt" means any beneficial interest in the Custody Receipts, ownership and transfers of which shall be made through book entries by the Depository as described in Section 2.06(c) hereof.
"Class A Distribution Amount" means, as to the Class A Custody Receipts and any Payment Date, an amount equal to the sum of (i) the related Scheduled Principal Amount, (ii) the Class A Custody Receipt Interest Distribution and (iii) the Class A Custody Receipt Yield Maintenance Amount, to the extent received with respect to such Payment Date.
"Custody Account" means, with respect to a Series of Custody Receipts, the account relating to such Series established and maintained pursuant to Section 2.01 of this Custodial Agreement.
"Definitive Custody Receipts" has the meaning set forth in Section 2.06(c).
"Depository" means, with respect to a Series of Custody Receipts which are Book-Entry Custody Receipts or any Underlying Securities which are issued in book-entry form, the securities depository with which the Related Underlying Securities or one or both classes of such Series of Custody Receipts are deposited, which depository shall be registered under Section 17A of the Securities Exchange Act of 1934.
"Depository Agreement" means, with respect to a Series of Book-Entry Custody Receipts, the letter of representations relat ing to such Series among the Depositor, the Note Custodian and the Depository substantially in the form attached to the related Terms Agreement.
"Depository Participant" means a broker, dealer, bank, other financial institution or other person or entity for whom from time to time a Depository effects book-entry transfers and pledges of Custody Receipts deposited with such Depository.
"Fee Letter" means the side letter between the Depositor and the Note Custodian dated March 14, 1997 regarding the amounts payable to the Note Custodian in respect of its fees and expenses
under this Custodial Agreement, as amended from time to time by written agreement of the parties hereto.
"Issuance Agreement" means, with respect to a Series of Custody Receipts, the agreement pursuant to which the related Underlying Securities were issued and which is specified in the related Terms Agreement.
"Issuer" means, with respect to a Series of Custody Receipts, the Issuer of the related Underlying Securities, if any, specified in the related Terms Agreement.
"Mail" means mail by first-class postage to specified Owners of a Series of Custody Receipts at their addresses set forth in the Related Custody Receipts Register.
"Note Custodian's Principal Office" means the principal office of the Note Custodian at which at any particular time its corporate trust business shall be administered which office at the date of the execution of this Agreement is located at Four Albany Street, New York, New York 10006, Attention: Corporate Trust and Agency Group - Structured Finance Team or at any other time at such other address as the Note Custodian may designate from time to time by notice to the Depositor.
"Notice of Transfer or Exchange" means the Notice of Transfer or Exchange printed on a Custody Receipt.
"Payment Date" means, with respect to the Underlying Securities of a Series of Custody Receipts, any Payment Date set forth in the related Terms Agreement.
"Series" means all Custody Receipts issued and outstanding from time to time that represent the Underlying Securities of the same issue deposited at the same time with the Note Custodian pursuant to Section 2.03 of this Custodial Agreement.
"Servicer" means, with respect to a Series of Custody Receipts, the person or entity as specified in the related Terms Agreement.
"Terms Agreement" means, with respect to a Series of Custody Receipts, the Terms Agreement, substantially in the form set forth in Annex I hereto, delivered by the Depositor to the Note Custodian pursuant to this Custodial Agreement and accepted by the Note Custodian in connection with the issuance of such Series of Custody Receipts.
"Transfer Limitations" means, with respect to a Series of Custody Receipts, the Transfer Limitations set forth in the related Terms Agreement.
"Trustee" means, with respect to a Series of Custody Receipts, the bank or trust company serving as trustee or indenture trustee with respect to the Underlying Securities, as specified in the related Terms Agreement.
"Underlying Securities" means, with respect to a Series of Custody Receipts, the Underlying Securities specified in the related Terms Agreement.
"Voting Rights" means, with respect to the Class A Custody Receipts 90% and with respect to the Class A-IO Custody Receipt 10% and such Voting Rights with respect to each Custody Receipt of a Class means the pro rata share of the percentage allocated to the related Class of Custody Receipts based on the Initial Custody Receipt Balance or the Initial Aggregate Class A-IO Custody Receipt Notional Amount, as the case may be.
ARTICLE II
CUSTODY ACCOUNTS AND CUSTODY RECEIPTS
Section 2.01. Creation of Custody Accounts. The Note Custodian shall
---------------------------- establish and maintain, with respect to each Series of Custody Receipts, a separate Custody Account in the corporate trust office of the Note Custodian to be designated "[Name of Related Underlying Securities (as specified in the related Terms Agreement) --Custody Receipts Series [ ]] --Custody Account." The Note Custodian shall purchase the Underlying Securities from the Depositor, without recourse, in return for the Custody Receipts. The Note Custodian shall deposit into such Custody Account the related Underlying Securities, and any monies received in connection therewith. Each Custody Account shall at all times be maintained as a custodial account for the benefit of the related Owners, separated and segregated on the books of the Note Custodian from all other accounts, funds and property in the possession of the bank or trust company acting as Note Custodian, including any other Custody Account. The related Underlying Securities and any monies held in a related Custody Account shall not at any time be commingled on the books of the Note Custodian with any other assets or property held by the Note Custodian, including the assets or property of any other Custody Account. The Note Custodian shall maintain separate records in connection with any monies which it may hold, in such Custody Account or otherwise, in connection with the Related Underlying Securities. To the extent practicable, the Note Custodian shall arrange for distributions on the related Underlying Securities to be made in immediately available funds to the Note Custodian, by wire transfer or otherwise, pursuant to the payment provisions of each Issuance Agreement. Each Custody Account shall be maintained at all times with an Eligible Institution. If the Note Custodian ceases to be an Eligible Institution, the Custody Account shall
be transferred to an Eligible Institution within five Business Days.
It is the express intent of the parties hereto that the conveyance of the Underlying Securities and any monies received in connection therewith to the Note Custodian, by the Depositor be, and be construed as, an absolute sale of the Underlying Securities and related property. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Underlying Securities and related property by the Depositor to the Note Custodian to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, the Underlying Securities or any related property is held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Underlying Securities or any related property, then:
(1) this Agreement shall be deemed to be a security agreement; and
(2) the conveyance provided for hereunder shall be deemed to be a grant by
the Depositor to the Note Custodian, of a security interest in all of
the Depositor's right, title, and interest, whether now owned or
hereafter acquired, in and to the Underlying Securities, any monies
received in connection therewith and any proceeds thereof.
The Depositor shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. The Depositor shall file all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect such security interest in such property. In connection herewith, the Note Custodian shall have all of the rights and remedies of a secured party and creditor under the Uniform Commercial Code as in force in the relevant jurisdiction.
Section 2.02. Custody Receipts. The Note Custodian shall issue one or
---------------- more Series of Custody Receipts in Authorized Denominations from time to time as hereinafter provided, each such Series to be composed of Class A Custody Receipts and Class A-IO Custody Receipts evidencing a beneficial ownership interest in the related Underlying Securities for such Custody Receipts (as set forth in such Custody Receipt and in the related Custody Receipt Register) on the terms and conditions set forth herein and in the related Terms Agreement. Class A Custody Receipts
shall be substantially in the form set forth in Exhibit 1 hereto, unless otherwise agreed to by the parties hereto in connection with a particular Series of Custody Receipts, in which case they shall be substantially in the form set forth in Schedule A to the related Terms Agreement, and shall be assigned consecutive registration numbers. The Class A-IO Custody Receipts shall be substantially in the form set forth in Exhibit 2 hereto unless otherwise agreed to by the parties hereto in connection with a particular Series of Custody Receipts, in which case they shall be substantially in the form set forth in Exhibit B to the related Terms Agreement, and shall be assigned consecutive registration numbers. Each Custody Receipt shall be executed by the Note Custodian by the manual signature of an Authorized Officer and no Custody Receipt shall be entitled to any benefits under this Custodial Agreement, or be valid or obligatory for any purpose, unless so executed by the Note Custodian. In case any Authorized Officer whose signature shall appear on any Custody Receipt shall cease to be an Authorized Officer, such signature shall nevertheless be valid and sufficient for all purposes as if such person had remained in office. The Custody Receipts shall not evidence any financial obligation of the Depositor or the Note Custodian except that the Note Custodian shall be required, as provided in Section 3.01 hereof, to distribute in the amount specified in the related Terms Agreement all payments received in respect of the related Underlying Securities deposited hereunder to the Custody Receipts evidencing such Underlying Securities without making any deduction whatsoever, other than as expressly provided in this Custodial Agreement.
Section 2.03. Delivery of Custody Receipts. Unless other wise specified
---------------------------- in the related Terms Agreement, the Note Custodian shall deliver, at the direction of the Depositor, to the Owners thereof the initial Custody Receipts of a Series, registered in the names and in the denominations specified in writing by the Depositor at least three Business Days prior to such delivery, upon receipt by the Note Custodian of the following:
(a) original executed counterparts of the related Terms Agreement;
(b) in the case of related Underlying Securities issued in
certificated form, the related Underlying Securities in the aggregate
outstanding principal amount specified in the related Terms Agreement,
registered in the name of the Note Custodian (or its nominee or its agent's
nominee) or endorsed by the registered owner thereof for transfer to the
Note Custodian (or its nominee or its agent's nominee) or in blank, and all
documents necessary to effect the registra tion of the related Underlying
Securities (as specified in the related Issuance Agreement) in the name of
the Note Custodian;
(c) a list of the names, addresses and United States taxpayer
identification numbers (or, if a United States taxpayer identification
number is not appropriate, a copy of Form W-8 or such other appropriate
federal tax identifica tion as the Note Custodian may reasonably request)
of the persons in whose names, and the denominations in which, such Custody
Receipts are to be registered; and
(d) a copy of the related Issuance Agreement.
The Note Custodian may accept the form of the related Issuance Agreement delivered to it by the Depositor as being a true and correct copy of such Issuance Agreement and shall not be deemed to have knowledge of, and need not give effect to, any amendment unless a copy of such amendment is delivered to it.
The initial Custody Receipts of a Series to be executed and delivered by the Note Custodian as provided in this Section 2.03 shall be delivered to or upon the written order of the Depositor in The City of New York (or such other city in the United States of America as may be specified by the Depositor and agreed upon by the Note Custodian) at a location specified by the Depositor and agreed upon by the Note Custodian. Such delivery shall be made on the date that the related Underlying Securities are received by the Note Custodian as provided in paragraph (b) of this Section 2.03. If the Depositor shall so request reasonably in advance, the Note Custodian shall make such Custody Receipts available to the Depositor or the person designated by the Depositor for inspection on the Business Day preceding the date of any such delivery, at a location in The City of New York (or such other city specified above) specified by the Depositor and agreed upon by the Note Custodian. The Depositor shall provide the Note Custodian, on (and in the numbers specified in) the Note Custodian's reasonable request, Custody Receipt forms to facili tate issuance and transfer of Custody Receipts and permit any temporary Custody Receipts issued to be exchanged for permanent Custody Receipts.
Any temporary Custody Receipts that may be issued shall be exchangeable for definitive Custody Receipts upon surrender of the temporary Custody Receipts at the Note Custodian's Principal Office without charge to the Owner and after any waiting period that may be applicable. Any tax or governmental charge that may be imposed in connection with any such exchange shall be borne by the Owner. Upon surrender for cancellation of any one or more temporary Custody Receipts, the Note Custodian shall execute and deliver in exchange therefor definitive Custody Receipts of like denominations. Until so exchanged, the temporary Custody Receipts shall in all respects be entitled to the same benefits under this Agreement as definitive Custody Receipts.
Section 2.04. Mutilated, Lost, Stolen or Destroyed Custody Receipts. In
----------------------------------------------------- the event a Custody Receipt is mutilated, lost,
stolen or destroyed, the Note Custodian shall cancel such Custody Receipt, if possible, and execute and deliver in lieu thereof a new Custody Receipt of the same Series, Class and denomination, provided that:
(a) in the case of any mutilated Custody Receipt, such mutilated
Custody Receipt shall be first surrendered to the Note Custodian; and
(b) in the case of any lost, stolen or destroyed Custody Receipt,
there shall first be delivered to the Note Custodian evidence of such loss,
theft or destruction satis factory to the Note Custodian and the
Depositor, together with indemnity satisfactory to each of them, and
neither the Depositor nor the Note Custodian shall have received written
notice that such Custody Receipt has been acquired by a bona fide purchaser
for value.
All replacement Custody Receipts issued pursuant to this Section shall be entitled to the full benefits hereunder, whether or not, in the case of clause (b), any lost, stolen or destroyed Custody Receipt shall be found at any time. The Note Custodian shall be entitled to customary compensation from the Owner for its expenses, including any tax or governmental charge that may be payable by it, in connection with any such replacement of Custody Receipts.
Section 2.05. Registration and Transfer of Ownership; Persons Treated as
---------------------------------------------------------- Owners. - ------
(a) The Note Custodian shall maintain a Custody Receipts Register for
each Series of Custody Receipts at the Note Custodian's Principal Office to
provide for the registration of such Custody Receipts and the registration
of transfers of such Custody Receipts entitled to be registered or
transferred as herein provided. A copy of the Custody Receipts Register
for both classes of any Series of Custody Receipts shall be provided by the
Note Custodian to the Depositor (or its designee), to a designated
representative of Owners of Custody Receipts of such Series evidencing more
than 25% of the Initial Custody Receipt Balance or of the Initial Aggregate
Class A-IO Custody Receipt Notional Amount at the expense of and upon
written request by the Depositor or such Owners, as the case may be. The
Note Custodian shall maintain on the Custody Receipts Register for any
Series of Custody Receipts, with respect to each such Custody Receipt, (i)
the name, address and, unless not required to be maintained under
applicable laws and regulations, United States taxpayer identification
number of the Owner of such Custody Receipt, (ii) the registration number
of such Custody Receipt and (iii) the Custody Receipt Balance or the
Custody Receipt Notional Amount.
(b) The initial issuance of the Custody Receipts of a Series shall be
recorded on the related Custody Receipts Register in such names as the
Depositor shall specify upon satisfaction of the conditions set forth in
Section 2.05(g) and as provided in Section 2.03 hereof. Thereafter, regis
tration of transfer of such Custody Receipts may be made only on the
Related Custody Receipts Register upon satisfac tion of the conditions set
forth in Section 2.05(g). Upon (i) surrender for registration of transfer
of any Custody Receipt to the Note Custodian at the Note Custodian's
Principal Office, with the Notice of Transfer or Exchange for such Custody
Receipt fully completed, (ii) receipt by the Note Custodian of a
certificate of the proposed transferee in the form annexed to the related
Terms Agreement that it has fully complied, in respect of such transfer,
with any Transfer Limitations applicable to Custody Receipts of such Series
and (iii) receipt by the Note Custodian of a written agreement on the part
of such transferee that it agrees to indemnify the Note Custodian for any
expenses or liability that may result from such transfer, the Note
Custodian shall (A) execute and deliver to the transferee or transferees
named in such Notice at the Note Custodian's Principal Office a new Custody
Receipt or Receipts of the same Series and Class in Authorized Denomi
nations, evidencing Initial Custody Receipt Balance or Initial Aggregate
Class A-IO Custody Receipt Notional Amount, as the case may be, or portion
thereof of the surrendered Custody Receipt so transferred, registered in
the name or names of such transferee or transferees and (B) execute and
deliver to the Owner of the surrendered Custody Receipt at the Note
Custodian's Principal Office a new Custody Receipt or Receipts of the same
Series and Class in Authorized Denominations evidencing the portion of
Initial Custody Receipt Balance or Initial Aggregate Class A-IO Custody
Receipt Notional Amount of the surrendered Custody Receipt not so
transferred. Each Custody Receipt issued upon such a registration of
transfer shall bear a registra tion number not assigned previously.
(c) A Custody Receipt or Receipts may be exchanged for a Custody
Receipt or Receipts of the same Series and Class evidencing in the
aggregate the same Initial Custody Receipt Balance or Initial Aggregate
Class A-IO Custody Receipt Notional Amount, but having different
denominations, upon surrender of such Custody Receipt or Receipts to the
Note Custodian at the Note Custodian's Principal Office with the Notice
of Transfer or Exchange for such Custody Receipt fully completed. The Note
Custodian shall execute and deliver to the Owner of the exchanged Custody
Receipt, at the Note Custodian's Principal Office, a Custody Receipt or
Receipts of the same Series and Class, denominated in Authorized
Denominations registered in the name of such
Owner and bearing registration numbers not assigned previously.
(d) The Note Custodian may require payment by the Owner of a Custody
Receipt of a sum sufficient to cover any tax, governmental fee or other
governmental charge that may be imposed in connection with any registration
of a transfer or exchange of such Custody Receipt, and may require that
such taxes, fees or other charges be paid prior to the issuance of a new
Custody Receipt, and shall have no obligation to issue such new Custody
Receipt in the absence of such payment. The Note Custodian may, but shall
not be required to, issue or register the transfer of any Custody Receipt
during any period when the related Trustee would not be required to issue
or register the transfer of any related Underlying Security pursuant to the
terms of the related Issuance Agreement.
(e) The Note Custodian may treat the person in whose name a Custody
Receipt is registered as the absolute owner thereof, for all purposes
whatsoever, and shall not be bound or affected by any notice to the
contrary, other than an order of a court having jurisdiction in the
(f) Whenever any Custody Receipt shall be delivered to the Note
Custodian for registration of transfer, exchange or final payment, upon
such registration of transfer, exchange or payment, the Note Custodian
shall cancel such Custody Receipt, and shall maintain a record of such
cancellation, in accordance with its standard procedures.
(g) If so specified in the related Terms Agreement
(i) Each Class A Custody Receipt and Class A-IO Custody Receipt
is required to bear the following legend:
"THIS [CLASS A CUSTODY RECEIPT/CLASS A-IO CUSTODY RECEIPT] HAS
NOT BEEN REGISTERED UNDER THE SECURI TIES ACT OF 1933, AS
AMENDED ("1933 ACT"), OR THE SECURITIES LAWS OR "BLUE SKY" LAWS
OF ANY STATE AND HAS BEEN SOLD IN RELIANCE UPON AN EXEMPTION
PROVIDED IN THE 1933 ACT AND APPLICABLE STATE SECURITIES AND BLUE
SKY LAWS. THIS [CLASS A CUSTODY RECEIPT/CLASS A-IO CUSTODY
RECEIPT] MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF (EACH A "TRANSFER") UNLESS REGISTERED UNDER
THE 1933 ACT AND APPLICABLE STATE SECURITIES AND BLUE SKY LAWS OR
UNLESS AN EXEMP TION FROM SUCH REGISTRATION IS AVAILABLE AND THE
DEPOSITOR OR THE NOTE CUSTODIAN MAY, AS CONTEMPLATED IN THE
MASTER CUSTODIAL AGREEMENT,
REQUIRE AN OPINION OF COUNSEL TO SUCH EFFECT PRIOR TO EFFECTING
ANY SUCH TRANSFER."
(ii) No Class A Custody Receipt and Class A-IO Custody Receipt
(or any interest therein) may be Trans ferred (including, without
limitation, by pledge or hypothecation) except in accordance with the
following restrictions:
(a) no sale, assignment, pledge, hypothecation, transfer (each a
"Transfer") of a Class A Custody Receipt or of a Class A-IO Custody
Receipt or any beneficial interest therein will be made to any Person
unless such Transfer is exempt from the registration requirements of
the 1933 Act and any applicable state securities law or is made in
accordance with the 1933 Act and state laws. In the event of any such
Transfer, (i) unless such transfer is made in reliance upon Rule 144A
under the 1933 Act, the Note Custodian, the Issuer, the Indenture
Trustee, the Servicer and the Depositor shall require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and
in form and substance reasonably satisfactory to the Note Custodian,
the Issuer, the Trustee, the Servicer, the Depositor and the Credit
Enhancer that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall not be an expense of the Note Custodian, the Issuer, the
Trustee, the Servicer or the Depositor and (ii) the Note Custodian
shall require the transferee to execute an Investment Letter (in
substantially the form attached hereto as Exhibit 3) acceptable to and
in form and substance reasonably satisfactory to the Note Custodian,
the Issuer, the Trustee, the Servicer and the Depositor certifying to
the Note Custodian, the Issuer, the Trustee, the Servicer and the
Depositor the facts surrounding such transfer, which investment letter
shall not be an expense of the Note Custodian, the Issuer, the
Trustee, the Servicer and the Depositor;
(b) the Holder of a Class A Custody Receipt or of a Class A-IO
Custody Receipt desiring to effect a Transfer of a Class A Custody
Receipt or of a Class A-IO Custody Receipt shall indemnify the Note
Custodian, the Issuer, the Trustee, the Servicer and the Depositor
against any liability that may result if the Transfer is not so exempt
or is not made in accor dance with such federal and state laws; and
(c) the Class A Custody Receipts and Class A-IO Custody Receipts
may not be Transferred, directly or
indirectly, to any Person unless such transferee certifies in an
Officer's Certificate to the Issuer, the Depositor, the Note Custodian
and the Trustee (and in a form reasonably acceptable to the Issuer,
the Depositor and Trustee) that such Person is either (x) an
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3)
and (7) under the 1933 Act (each an "institutional accredited
investor"), (y) a Qualified Institutional Buyer as defined in Rule
144A under the 1933 Act, or (z) a Person (other than the Rating
Agencies) involved in the organization and operation of the Issuer or
an affiliate, as defined in Rule 405 under the 1933 Act, of such
Person within the meaning of Rule 3a-7 under the 1940 Act, and, if
requested by the Issuer or the Trustee, the transferee delivers an
Opinion of Counsel to such effect.
(iii) All Opinions of Counsel required in connec tion with any
Transfer shall be by counsel reasonably acceptable to the Issuer, the
Trustee and the Credit Enhancer. None of the Note Custodian, the
Issuer or the Indenture Trustee is obligated to register the Custody
Receipts or the related Underlying Securities under the 1933 Act or
any other securities law. Any Transfer in violation of the provision
hereof will be void ab initio.
Section 2.06. Deposits With Depositories.
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(a) Notwithstanding anything in this Custodial Agree ment to the
contrary, to the extent Underlying Securities are eligible for deposit with
a Depository, the Note Custodian may take delivery of the related
Underlying Securities by transfer of such Underlying Securities to its
account (or the account of its nominee or the nominee of its agent) with
such Depository and may maintain such Underlying Securities on deposit with
such Depository.
(b) In the event the related Terms Agreement provides that one or both
Classes of Custody Receipts will be Book Entry Custody Receipts, then such
Class of Custody Receipts shall, upon original issuance, be issued in the
form of one or more typewritten certificates representing such Class of
Book-Entry Custody Receipts and shall be delivered to the Depository by, or
on behalf of, the Deposito...
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