Exhibit 6
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
SERIES 2001-4 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of January 29, 2001
TABLE OF CONTENTS
PAGE
Section 1.Incorporation of Standard Terms.....................................1
Section 2.Definitions.........................................................1
Section 3.Designation of Trust and Certificates...............................7
Section 0.Xxxxx Certificates..................................................8
Section 5.Distributions.......................................................8
Section 6.Trustee's Fees.....................................................10
Section 7.Optional Exchange; Optional Call...................................10
Section 0.Xxxxxx of Default..................................................12
Section 9. Miscellaneous.....................................................12
Section 10 Governing Law.....................................................15
Section 11 Counterparts......................................................15
Section 12 Termination of the Trust..........................................15
Section 13 Sale of Underlying Securities.....................................15
Section 14. Amendments.......................................................15
Section 00.Xxxxxx of Underlying Securities, Modification of Indenture........16
SCHEDULE I SERIES 2001-4 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A FORM OF TRUST CERTIFICATE
i
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
Series 2001-4 TRUST
SERIES SUPPLEMENT, Series 2001-4, dated as of January 29, 2001 (the
"Series Supplement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated herein
(the "Trust") by executing and delivering this Series Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
January 16, 2001 (the "Standard Terms"; together with this Series Supplement,
the "Trust Agreement"), by and between the Depositor and the Trustee, as
modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit the Underlying Securities
set forth on Schedule I attached hereto (the "Underlying Securities Schedule")
into the Trust;
WHEREAS, in connection with the creation of the Trust and the deposit
therein of the Underlying Securities, it is desired to provide for the issuance
of trust certificates (the "Certificates") evidencing undivided interests in the
Trust; and
WHEREAS, the Trustee has joined in the execution of the Standard
Terms and this Series Supplement to evidence the acceptance by the Trustee of
the Trust;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee as follows:
Section 1. Incorporation of Standard Terms. Except as otherwise
provided herein, all of the provisions of the Standard Terms are hereby
incorporated herein by reference in their entirety, and this Series Supplement
and the Standard Terms shall form a single agreement between the parties. In the
event of any inconsistency between the provisions of this Series Supplement and
the provisions of the Standard Terms, the provisions of this Series Supplement
will control with respect to the Series 2001-4 Certificates and the transactions
described herein.
Section 2. Definitions. (a) Except as otherwise specified herein or
as the context may otherwise require, the following terms shall have the
respective meanings set forth below for all purposes under this Series
Supplement. (Section 2(b) below sets forth terms listed in the Standard Terms
which are not applicable to this Series.) Capitalized terms used but not defined
herein shall have the meanings assigned to them in the Standard Terms.
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"Available Funds" shall have the meaning specified in the
Standard Terms, except that investment income earned on funds invested pursuant
to Section 3.05 of the Standard Terms and proceeds of redemption of the
Underlying Securities shall be included in Available Funds.
"Business Day" shall mean any day other than (i) Saturday
and Sunday or (ii) a day on which banking institutions in New York City, New
York are authorized or obligated by law or executive order to be closed for
business or (iii) a day that is not a business day for the purposes of the
Underlying Securities Indenture.
"Call Date" shall mean any date occurring on or after
January 15, 2006, or after the announcement of any redemption or other
unscheduled payment of the Underlying Securities on which the Call Rights are
exercised and the proceeds of an Optional Call are distributed to Holders of the
Certificates pursuant to Section 7 hereof.
"Call Price" shall mean, for each related Call Date the
principal amount of the Certificates to be purchased by the Rights Holder on
such date, plus any accrued and unpaid interest on such amount to but excluding
the Call Date.
"Call Request" shall have the meaning specified in Section
7(b) hereof.
"Call Rights" shall mean the rights to purchase in whole or
in part at the Call Price the Certificates, and thereby cause an Optional Call
of the Certificates on any Call Date pursuant to the Optional Call provisions of
Section 7 hereof.
"Certificate Account" shall have the meaning specified in
the Standard Terms.
"Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described in Section 3
hereof and in the Certificates.
"Closing Date" shall mean January 29, 2001.
"Collection Period" shall mean, (i) with respect to each
July Distribution Date, the period beginning on the day after the January
Distribution Date and ending on such July Distribution Date, inclusive and, (ii)
with respect to each January Distribution Date, the period beginning on the day
after the July Distribution Date of a given year and ending on the January
Distribution Date of the following year, inclusive; provided, however, that
clauses (i) and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank
Trust National Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
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"Depository" shall mean The Depository Trust Company.
"Distribution Date" shall mean January 15 and July 15 of
each year (or if such date is not a Business Day, the next succeeding Business
Day), commencing on July 15, 2001 and ending on the Final Scheduled Distribution
Date (absent the exercise by the Underlying Securities Issuer of its right to
defer interest payments) or any date on which the Underlying Securities Issuer
exercises an optional redemption right.
"Eligible Account" shall have the meaning specified in the
Standard Terms.
"Eligible Investments" shall be as defined in the Standard
Terms; provided, however, that (i) the minimum required rating for long-term
instruments will be equal to the rating of the Underlying Securities, and (ii)
the rating of any short-term instruments will be A-1+ by S&P and P1 by Moody's;
and provided, further, that any such investment matures no later than the
Business Day prior to any related Distribution Date and that any such investment
be denominated in U.S. dollars.
"Event of Default" shall mean (i) a default in the payment
of any interest on any Underlying Security after the same becomes due and
payable (subject to any applicable grace period), (ii) a default in the payment
of the principal of or any installment of principal of any Underlying Security
when the same becomes due and payable and (iii) any other event specified as an
"Event of Default" in the Indenture for the Junior Subordinated Debentures.
"Extraordinary Trust Expenses" shall have the meaning
specified in the Standard Terms.
"Final Scheduled Distribution Date" shall mean July 15,
2037.
"Indenture" shall mean the indenture pursuant to which the
assets of the Underlying Securities Issuer were issued.
"Interest Accrual Period" shall mean for any Distribution
Date, the period from and including the preceding Distribution Date (or in the
case of the first Interest Accrual Period, from and including January 29, 2001)
to but excluding the current Distribution Date.
"Liquidation Price" shall mean the price at which the
Trustee sells the Underlying Securities.
"Liquidation Proceeds" shall have the meaning specified in
the Standard Terms.
"Maturity Date" shall have the meaning specified in
Schedule I hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
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"Optional Call" shall mean the call of the Certificates by
the Rights Holder, in whole or in part, resulting from the exercise of Call
Rights by the Rights Holder, pursuant to Section 7 hereof.
"Optional Exchange" shall mean the exchange of the
Certificates by the Trust for the Underlying Securities, pursuant to Section 7
hereof.
"Optional Exchange Date" shall mean any Distribution Date
on which Underlying Securities subject to Optional Exchange are distributed to
the Depositor or any of its Affiliates, as a Certificateholder.
"Ordinary Expenses" shall mean the Trustee's ordinary
expenses and overhead in connection with its services as Trustee, including the
items referred to in the definition of Ordinary Expenses in the Standard Terms.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus
Supplement, dated January 18, 2001, relating to the Certificates.
"Rating Agency" shall mean Moody's and S&P.
"Rating Agency Condition" shall have the meaning specified
in the Standard Terms.
"Record Date" shall mean, with respect to each Distribution
Date, the day immediately preceding the related Distribution Date.
"Required Interest" shall have the meaning specified in the
Standard Terms.
"Required Percentage-Amendment" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Direction of Trustee" shall be 66-2/3%
of the aggregate Voting Rights.
"Required Percentage-Remedies" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Removal" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Rating" shall mean, in the case of Moody's, the
rating assigned to the Underlying Securities by Moody's as of the Closing Date,
and, in the case of S&P, the rating assigned to the Underlying Securities by S&P
as of the Closing Date.
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"Rights Holder" shall mean the holder of the Call Rights.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies Inc.
"Series" shall mean Series 2001-4.
"Trustee Fee" shall mean the amount paid to the Trustee by
the Depositor on the Closing Date.
"Trust Property" shall mean the Underlying Securities
described on Schedule I hereto and the Certificate Account.
"Underlying Securities" shall mean $37,940,000 aggregate
principal amount of 8.072% Exchange Capital Securities due 2037 issued by the
Underlying Securities Issuer, as set forth on Schedule I attached hereto.
"Underlying Securities Issuer" shall mean Safeco Capital
Trust I.
"Underlying Securities Trustee" shall mean Chase Manhattan
Bank (Delaware) (predecessor in interest to Chase Manhattan Bank USA, N.A.)
"Underwriters" shall mean Xxxxxx Brothers Inc., an
affiliate of the Depositor and Prudential Securities Incorporated.
"Voting Rights" shall, in the entirety, be allocated among
all Certificateholders in proportion to the then unpaid principal amounts of
their respective Certificates.
(b) The terms listed below are not applicable to this
Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Calculation Agent"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
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"Credit Support Provider"
"Cut-off Date"
"Eligible Expense"
"Exchange Rate Agent"
"Fixed Pass-Through Rate"
"Floating Pass-Through Rate"
"Guaranteed Investment Contract"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Notional Amount"
"Optional Exchange Date"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
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"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Corporate -Backed Trust Certificates, Series
2001-4 Trust." The Certificates evidencing certain undivided ownership interests
therein shall be known as "Corporate -Backed Trust Certificates, Series 2001-4."
The Certificates shall consist of one class of Certificates (the
"Certificates").
(a) The Certificates shall be held through the Depository in
book-entry form and shall be substantially in the form attached hereto as
Exhibit A. The Certificates shall be issued in denominations of $25. Except as
provided in the Standard Terms and in paragraph (d) in this Section, the Trust
shall not issue additional Certificates or incur any indebtedness.
(b) The Certificates have an initial aggregate certificate principal
amount ("Certificate Principal Amount") of $35,000,000.
(c) The Holders of the Certificates will be entitled to receive on
each Distribution Date the interest, if any, received on the Underlying
Securities, to the extent necessary to pay interest at a rate of 8.75% per annum
on the outstanding Certificate Principal Amount of the Certificates. On July 15,
2001, the Trustee will pay to the Depositor the amount of interest accrued on
the Underlying Securities from January 15, 2001 to but not including the Closing
Date.
(d) The Depositor may sell to the Trustee additional Underlying
Securities on any date hereafter upon at least 5 Business Days notice to the
Trustee and upon (i) satisfaction of the Rating Agency Condition and (ii)
delivery of an Opinion of Counsel to the effect that the sale of such additional
Underlying Securities will not materially increase the likelihood that the Trust
would fail to qualify as a grantor trust under the Code. Upon such sale to the
Trustee, the Trustee shall deposit such additional Underlying Securities in the
Certificate Account, and shall authenticate and deliver to the Depositor, or its
order, Certificates in a Certificate Principal Amount equal to the principal
amount of such additional Underlying Securities. Any such additional
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Certificates authenticated and delivered shall have the same terms and rank pari
passu with any Certificates previously issued in accordance with this Series
Supplement.
Section 4. Trust Certificates. The Trustee hereby acknowledges
receipt, on or prior to the Closing Date, of:
(i) the Underlying Securities set forth on the Underlying Securities
Schedule; and
(ii) all documents required to be delivered to the Trustee pursuant
to Section 2.01 of the Standard Terms.
Section 5. Distributions. (a)On each applicable Distribution Date,
the Trustee shall apply Available Funds in the Certificate Account as follows
(subject to Section 5(b) below), in the following order of priority:
(i) the Trustee will pay the interest portion of Available Funds:
(a) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee
in accordance with Section 6(b) below and approved by
100% of the Certificateholders;
(b) second, to the Holders of the Certificates, as
interest at the rate of 8.75% per annum (subject to
Section 5(b) hereof) on the principal amount of the
Certificates; and
(c) third, any remainder to the Depositor.
(ii) the Trustee will pay the principal portion of Available Funds:
(a) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee
in accordance with Section 6(b) below and approved by
100% of the Certificateholders; and
(b) second, to the Holders of the Certificates the
remaining principal portion of Available Funds.
(b) Distributions of interest on the Certificates shall be deferred
in the event of the deferral of payment on the Underlying Securities.
Distributions on the Underlying Securities may be deferred pursuant to the
Underlying Securities Indenture for up to ten consecutive semiannual interest
periods (each a "Deferral Period") provided that no Deferral Period may extend
beyond the Final Scheduled Distribution Date. During any Deferral Period,
interest on the Underlying Securities will continue to accrue at the applicable
rate per annum compounded semi-annually. However, interest that accrues on
deferred and compounded interest on the Underlying Securities will not be
sufficient to pay interest at the otherwise applicable rate of 8.75% on deferred
8
and compounded interest on the Certificates. Interest on deferred and compounded
interest on the Certificates will be owing only to the extent that such interest
is actually received by the Trustee on the Underlying Securities.
(c) Notwithstanding any other provision hereof, amounts recovered in
respect of the Underlying Securities prior to the Final Scheduled Distribution
Date following (i) an acceleration of the date of maturity of the Underlying
Securities, (ii) the redemption or other prepayment of the Underlying Securities
by the Underlying Securities Issuer or (iii) the sale of the Underlying
Securities by the Trust, shall be distributed pursuant to the priorities
specified in Section 5(a) hereof. The Certificates shall be subject to a
mandatory redemption on any Distribution Date on which the Underlying Securities
are redeemed by the Underlying Securities Issuer.
(d) Notwithstanding any other provision hereof, in the event of the
occurrence of (i) a payment default on the Underlying Securities or (ii) an
acceleration of the date of maturity of the Underlying Securities in connection
with a default thereon, the Trustee shall proceed against the Underlying
Securities Issuer on behalf of the Certificateholders to enforce the Underlying
Securities or otherwise to protect the interests of the Certificateholders,
provided that, Holders of the Certificates representing a majority of the Voting
Rights on the Certificates will be entitled to direct the Trustee in any such
proceeding or direct the Trustee to sell the Underlying Securities. If the
Trustee is directed to sell the Underlying Securities, the Trustee shall solicit
bids for the sale of the Underlying Securities with settlement thereof on or
before the third (3rd) Business Day after such sale from three leading dealers
in the relevant market. Any of the following dealers (or their successors) shall
be deemed to qualify as leading dealers: (1) Credit Suisse First Boston
Corporation, (2) Xxxxxxx, Xxxxx & Co., (3) Xxxxxx Brothers Inc., (4) Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (5) UBS Securities LLC and (6)
Xxxxxxx Xxxxx Xxxxxx Inc. The Trustee shall not be responsible for the failure
to obtain a bid so long as it has made reasonable efforts to obtain bids. If a
bid for the sale of the Underlying Securities has been accepted by the Trustee
but the sale has failed to settle on the proposed settlement date, the Trustee
shall request new bids from such leading dealers. In the event of such sale or
of an acceleration and a corresponding payment on the Underlying Securities, the
Trustee shall distribute the proceeds to the Certificateholders no later than
two Business Days after the receipt of immediately available funds.
(e) In the event that the Trustee receives non-cash property in
respect of the Underlying Securities as a result of a payment default on the
Underlying Securities (including from the sale thereof), the Trustee will
promptly give notice to the Depositary, or for any Certificates which are not
then held by DTC or any other depository, directly to the registered Holders of
the Certificates then outstanding and unpaid. Such notice shall state that, not
later than 30 days after the receipt of such moneys or other property, the
Trustee will allocate and distribute such property to the Holders of
Certificates then outstanding and unpaid, pro rata by principal amount (after
deducting the costs incurred in connection therewith). Property other than cash
will be liquidated by the Trustee, and the proceeds thereof distributed in cash,
only to the extent necessary to avoid distribution of fractional securities to
9
Certificateholders. In-kind distribution of such property to Certificateholders
will be deemed to reduce the principal amount of Certificates on a
dollar-for-dollar basis.
(f) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any required distributions due to the Certificates on any
Distribution Date, any shortfall will be carried over and will be distributed on
the next Distribution Date (or date referred to in Section 5(g) hereof) on which
sufficient funds are available on the Available Funds to pay such shortfall.
(g) If a payment with respect to the Underlying Securities is made to
the Trustee after the payment date of the Underlying Securities on which such
payment was due, then the Trustee will distribute any such amounts received on
the next occurring Business Day (a "Special Distribution Date") as if the funds
had constituted Available Funds on the Distribution Date immediately preceding
such Special Distribution Date; provided, however, that the Record Date for such
Special Distribution Date shall be five Business Days prior to the day on which
the related payment was received from the Underlying Securities Trustee.
Section 6. Trustee's Fees. (a) As compensation for its services
hereunder, the Trustee shall be entitled to the Trustee Fee. The Trustee Fee
shall be paid by the Depositor and not from Trust Property. The Trustee shall
bear all Ordinary Expenses. Failure by the Depositor to pay such amount shall
not entitle the Trustee to any payment or reimbursement from the Trust, nor
shall such failure release the Trustee from the duties it is required to perform
under the Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust
Property unless all the Holders of the Certificates then outstanding have voted
to require the Trustee to incur such Extraordinary Expenses. The Trustee may
incur other Extraordinary Expenses if any lesser percentage of the
Certificateholders requesting such action pursuant hereto reimburse the Trustee
for the cost thereof from their own funds in advance. If Extraordinary Expenses
are not approved unanimously as set forth in the first sentence of this Section
6(b), such Extraordinary Expenses shall not be an obligation of the Trust, and
the Trustee shall not file any claim against the Trust therefor notwithstanding
failure of Certificateholders to reimburse the Trustee.
Section 7. Optional Exchange; Optional Call.
(a) (i) On each Distribution Date (or, if the Depositor or an
Affiliate of the Depositor holds all of the Certificates, on any other date) any
Affiliate of the Depositor, if it is then the Holder of Certificates of a
certain principal amount, may tender such Certificates to the Trustee on such
date and receive a distribution of Underlying Securities representing a like
percentage of the Underlying Securities to the percentage of the Certificates
being tendered by the Depositor or Affiliate to the Trustee; provided, however,
that any right to exchange shall be exercisable only (a) to the extent that the
Depositor provides upon the Trustee's request an opinion of counsel that such
10
exchange would not affect the characterization of the Trust as a "grantor trust"
for federal income tax purposes and (b) to the extent permitted under Section
7(a)(iv) hereof.
(ii) Any such Affiliate of the Depositor must provide notice to the
Trustee (an "Exchange Request") no less than 15 days (or such shorter period
acceptable to the Trustee) but not more than 30 days prior to an Optional
Exchange Date that it requests an Optional Exchange of Certificates on such
Optional Exchange Date.
(iii) The Trustee shall not be obligated to determine whether an
Optional Exchange complies with the applicable provisions for exemption under
Rule 3a-7 of the Investment Company Act of 1940, as amended, or the rules or
regulations promulgated thereunder.
(iv) Any such Optional Exchange by any Affiliate of the Depositor,
will be subject to the following restrictions: (a) certification to the Trustee
that any Certificates to be exchanged have been held for a minimum of six months
and (b) each Optional Exchange is limited in amount to a maximum of 5% (except
for Certificates acquired by the Underwriter but never distributed to investors,
in which case 25%) of the then outstanding principal amount of the Certificates,
provided, however, that such restrictions shall not apply to the exchange of
Certificates that were acquired pursuant to Section 7(b).
(v) The provisions of Section 4.07 of the Standard Terms shall not
apply to an Optional Exchange pursuant to this Section. This Section 7 shall not
provide the Depositor with a lien against, an interest in or a right to specific
performance with respect to the Underlying Securities.
(b) (i) On any Call Date, the Certificates may be called at the Call
Price, in whole or in part, by the Rights Holder, or an affiliate thereof, upon
payment of the Call Price on or prior to such Call Date.
(ii) The Rights Holder may provide notice to the Trustee (a "Call
Request") no less than 5 Business Days prior to any Call Date, that it is
exercising its Call Rights with respect to the Underlying Securities on such
Call Date.
(iii) Upon receipt of a Call Request, the Trustee shall provide a
conditional call notice to the Depository not less than 3 Business Days prior to
the applicable Call Date.
(iv) As a condition to any Optional Call, an opinion of counsel to
the Rights Holder shall be delivered to the Rating Agencies, in form
satisfactory to the Rating Agencies, indicating that payment of the Call Price
shall not be recoverable as a preferential transfer or fraudulent conveyance
under the United States Bankruptcy Code. Such opinion may contain customary
assumptions and qualifications. In addition, the Rights Holder shall provide a
certificate of solvency to the Trustee.
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(v) Deliveries of the Certificates called to the Rights Holder (the
"Purchaser") will only be made against payment by the Purchaser of the Call
Price in immediately available funds. Such payment must occur no later than
10:00 a.m. New York City time on the Call Date. In the event that the Purchaser
fails to make such payment by such time (a "Purchase Default"), the sale shall
be voided and the Optional Call will be deemed not to be effective with respect
to such Distribution Date, and the Certificates and the Call Rights shall
continue to remain outstanding. Subject to receipt of the Call Price as
aforesaid, the Trustee shall pay the Call Price to the Certificateholders on the
Call Date.
(vi) The Trustee shall not consent to any amendment or modification
of this Agreement (including the Standard Terms) which would alter the timing or
amount of any payment of the Call Price without the prior written consent of the
Rights Holder.
(vii) The Trustee shall not be obligated to determine whether an
Optional Call complies with the applicable provisions for exemption under Rule
3a-7 of the Investment Company Act of 1940, as amended, or the rules or
regulations promulgated thereunder.
(viii) This Section 7 shall not provide the Rights Holder with a lien
against, an interest in or a right to specific performance with respect to the
Underlying Securities.
(ix) The Rights Holder shall initially be the Depositor and such Call
Rights may be transferred upon giving notice of such transfer to each Rating
Agency. However, the Trustee is under no obligation to recognize any notice of
transfer unless it is signed by the transferor and the transferee.
Section 8. Events of Default.
Within 30 days of the occurrence of an Event of Default in respect of
the Certificates, the Trustee will give notice to the Certificateholders,
transmitted by mail, of all such uncured or unwaived Events of Default known to
it. However, except in the case of an Event of Default relating to the payment
of principal, if any, or interest on any of the Underlying Securities, the
Trustee will be protected in withholding such notice if in good faith it
determines that the withholding of such notice is in the interest of the
Certificateholders.
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms
shall not apply to the Series 2001-4 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the
Standard Terms shall not apply to the Series 2001-4 Certificates.
(c) The Trustee shall simultaneously forward reports to
Certificateholders pursuant to Section 4.03 of the Standard Terms and to the New
York Stock Exchange.
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(d) Except as expressly provided herein, the Certificateholders shall
not be entitled to terminate the Trust or cause the sale or other disposition of
the Underlying Securities.
(e) The provisions of Section 3.07(d) of the Standard Terms shall not
apply to the Series 2001-4 Certificates.
(f) If the Trustee has not received payment with respect to a
Collection Period on the Underlying Securities on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of such
payment. No additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Certificateholders, proportionately to
the ratio of their respective entitlements to interest.
(g) The outstanding principal balance of the Certificates shall not
be reduced by the amount of any Realized Losses (as defined in the Standard
Terms).
(h) The Trust may not engage in any business or activities other than
in connection with, or relating to, the holding, protecting and preserving of
the Trust Property and the issuance of the Certificates, and other than those
required or authorized by the Trust Agreement or incidental and necessary to
accomplish such activities. The Trust may not issue or sell any certificates or
other obligations other than the Certificates or otherwise incur, assume or
guarantee any indebtedness for money borrowed.
(i) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee may be removed upon 60 days prior written notice delivered by the
Holders of Certificates representing the Required Percentage-Removal.
(j) In the event that the Internal Revenue Service challenges the
characterization of the Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application of
Subchapter K of the Code and is hereby empowered to execute such forms on behalf
of the Certificateholders.
(k) Notwithstanding anything in the Standard Terms to the contrary,
the Trustee, upon written direction by the Depositor, will execute the
Certificates.
(l) In relation to Section 7.01(f) of the Standard Terms, any
periodic reports filed by the Trustee pursuant to the Securities and Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder,
in accordance with the customary practices of the Depositor, need not contain
any independent reports.
(n) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee will have no recourse to the Underlying Securities.
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(o) The Trust will not merge or consolidate with any other entity
without confirmation from each Rating Agency that such merger or consolidation
will not result in the qualification, reduction or withdrawal of its
then-current rating on the Certificates.
(p) Notices. All directions, demands and notices hereunder or under
the Standard Terms shall be in writing and shall be delivered as set forth below
(unless written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxx ABS Corporation
3 World Financial Center
New York, New York 10285
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
14
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE
TRANSACTIONS DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF
LAWS PROVISIONS THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon
the earliest to occur of (i) the payment in full at maturity or sale by the
Trust after a payment default on or an acceleration or other early payment of
the Underlying Securities and the distribution in full of all amounts due to the
Certificateholders; (ii) the Final Scheduled Distribution Date and (iii) the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
Section 13. Sale of Underlying Securities. In the event of a sale of
the Underlying Securities pursuant to Section 5(d) hereof, the Liquidation
Proceeds, if any, shall be deposited into the Certificate Account for
distribution to the Certificateholders. The Trustee shall only deliver the
Underlying Securities to the purchaser of such Underlying Securities against
payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust
Agreement to the contrary, in addition to the other restrictions on modification
and amendment contained therein, the Trustee shall not enter into any amendment
or modification of the Trust Agreement which would adversely affect in any
material respect the interests of the Holders of Certificates without the
15
consent of the Holders of 100% of such Certificates; provided, however, that no
such amendment or modification will be permitted which would alter the status of
the Trust as a grantor trust for federal income tax purposes. Further, no
amendment shall be permitted which would adversely affect in any material
respect the interests of any Certificateholders without confirmation by each
Rating Agency that such amendment will not result in a downgrading or withdrawal
of its rating of such Certificates.
Section 15. Voting of Underlying Securities, Modification of
Indenture. The Trustee, as Holder of the Underlying Securities, has the right to
vote and give consents and waivers in respect of the Underlying Securities as
permitted by the Depository and except as otherwise limited by the Trust
Agreement. In the event that the Trustee receives a request from the Depository,
the Underlying Securities Trustee or the Underlying Securities Issuer for its
consent to any amendment, modification or waiver of the Underlying Securities,
the Underlying Securities Indenture or any other document thereunder or relating
thereto, or receives any other solicitation for any action with respect to the
Underlying Securities, the Trustee shall mail a notice of such proposed
amendment, modification, waiver or solicitation to each Certificateholder of
record as of such date. The Trustee shall request instructions from the
Certificateholders as to whether or not to consent to or vote to accept such
amendment, modification, waiver or solicitation. The Trustee shall consent or
vote, or refrain from consenting or voting, in the same proportion (based on the
relative outstanding principal balances of the Certificates) as the Certificates
of the Trust were actually voted or not voted by the Certificateholders thereof
as of a date determined by the Trustee prior to the date on which such consent
or vote is required provided, however, that, notwithstanding anything in the
Trust Agreement to the contrary, the Trustee shall at no time vote on or consent
to any matter (i) unless such vote or consent would not (based on an opinion of
counsel) alter the status of the Trust as a grantor trust for federal income tax
purposes or result in the imposition of tax upon the Certificateholders, (ii)
which would alter the timing or amount of any payment on the Underlying
Securities, including, without limitation, any demand to accelerate the
Underlying Securities, except in the event of a default under the Underlying
Securities or an event which with the passage of time would become an event of
default under the Underlying Securities and with the unanimous consent of all
outstanding Certificateholders, or (iii) which would result in the exchange or
substitution of any of the outstanding Underlying Securities pursuant to a plan
for the refunding or refinancing of such Underlying Securities except in the
event of a default under the Underlying Securities Indenture and only with the
consent of Certificateholders representing 100% of the Certificates. The Trustee
shall have no liability for any failure to act resulting from
Certificateholders' late return of, or failure to return, directions requested
by the Trustee from the Certificateholders.
In the event that an offer is made by the Underlying Securities
Issuer to issue new obligations in exchange and substitution for any of the
Underlying Securities, pursuant to a plan for the refunding or refinancing of
the outstanding Underlying Securities or any other offer is made for the
Underlying Securities, the Trustee shall notify the Certificateholders of such
16
offer promptly. The Trustee must reject any such offer unless the Trustee is
directed by the affirmative vote of the Holders of 100% of the Certificates to
accept such offer and the Trustee has received the tax opinion described above.
If an event of default under the Indenture occurs and is continuing,
and if directed by a majority of the outstanding Certificateholders, the Trustee
shall vote the Underlying Securities in an outstanding principal amount equal to
the outstanding certificate principal amount of the Certificates in favor of
directing, or take such other action as may be appropriate to direct, the
Underlying Securities Trustee to declare the unpaid principal amount of the
Underlying Securities and any accrued and unpaid interest thereon to be due and
payable.
17
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of the
date first written above.
XXXXXX ABS CORPORATION,
as Depositor
By:
-------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee on behalf
of the Corporate Backed Trust
Certificates Series, 2001-4
Trust
By:
-------------------------------------
Name:
Title:
18
SCHEDULE I
SERIES 2001-4
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 8.072% Exchange Capital
Securities due 2037.
Underlying Securities Issuer: Safeco Capital Trust I.
CUSIP Number: 000000XX0.
Principal Amount Deposited: $37,940,000.
Original Issue Date: December 15, 1997.
Principal Amount of
Underlying Securities
Originally Issued: $850,000,000.
Maturity Date: July 15, 2037.
Principal Payment Date: July 15, 2037.
Interest Rate: 8.072% per annum.
Interest Payment Dates: January 15th and July 15th.
Underlying Securities Record Dates: The day immediately preceding
each Distribution Date.
19
Exhibit A
FORM OF TRUST CERTIFICATE
-------------------------
NUMBER 1 1,400,000 $25 PAR
CERTIFICATES
CUSIP NO. 00000X000
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED
BENEFICIAL OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION
OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS
ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
XXXXXX ABS CORPORATION
1,400,000 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-4
8.75% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $37,940,000
aggregate principal amount of 8.072% Series B Capital Securities due July 15,
20
2037, issued by Safeco Capital Trust I (the "Underlying Security Issuer") and
all payments received thereon (the "Trust Property"), deposited in trust by
Xxxxxx ABS Corporation (the "Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of
$35,000,000 DOLLARS nonassessable, fully-paid, proportionate undivided
beneficial ownership interest in the Corporate Backed Trust Certificates, Series
2001-4 Trust, formed by the Depositor.
21
The Trust was created pursuant to a Standard Terms for
Trust Agreements, dated as of January 16, 2001 (the "Standard Terms"), between
the Depositor and U.S. Bank Trust National Association, a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement, Series 2001-4, dated as of
January 29, 2001 (the "Series Supplement" and, together with the Standard Terms,
the "Trust Agreement"), between the Depositor and the Trustee. This Certificate
does not purport to summarize the Trust Agreement and reference is hereby made
to the Trust Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee with respect hereto. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office. Capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as the "Corporate Backed Trust Certificates, Series 2001-4 (herein
called the "Certificates"). This Certificate is issued under and is subject to
the terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. The Trust Property consists of: (i)
Underlying Securities described in the Trust Agreement; (ii) all payments on or
collections in respect of the Underlying Securities accrued on or after January
29, 2001 together with any proceeds thereof; and (iii) all funds from time to
time deposited with the Trustee relating to the Certificates, together with any
and all income, proceeds and payments with respect thereto; provided, however,
that any income from the investment of Trust funds in certain permitted
investments ("Eligible Investments") does not constitute Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith,
distributions will be made on each Distribution Date, to the Person in whose
name this Certificate is registered on the applicable Record Date, in an amount
equal to such Certificateholder's proportionate undivided beneficial ownership
interest in the amount required to be distributed to the Holders of the
Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding such
Distribution Date (whether or not a Business Day). If a payment with respect to
the Underlying Securities is made to the Trustee after the date on which such
payment was due, then the Trustee will distribute any such amounts received on
the next occurring Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Trust, or join in any institution against the Trust of, any
bankruptcy proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates or
the Trust Agreement.
22
Distributions made on this Certificate will be made as
provided in the Trust Agreement by the Trustee by wire transfer in immediately
available funds, or check mailed to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee shall be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the Corporate Trust Office or
such other location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not entitle the Holder hereof to any benefit under the Trust Agreement or
be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
23
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-4 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
-----------------------------------------
Authorized Signatory
Dated: January 29, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates,
Series 2001-4, described in the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
---------------------------------------
Authorized Signatory
24
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to
certain payments and collections respecting the Underlying Securities, all as
more specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to the
Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of the Certificates in the manner
set forth in the Series Supplement and the Standard Terms. Any such consent by
the Holder of this Certificate (or any predecessor Certificate) shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent in
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable in fully registered form only
in denominations of $25.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, the City of New York, duly endorsed
by or accompanied by an assignment in the form below and by such other documents
as required by the Trust Agreement, and thereupon one or more new Certificates
of the same class in authorized denominations evidencing the same principal
amount will be issued to the designated transferee or transferees. The initial
Certificate Registrar appointed under the Trust Agreement is U.S. Bank Trust
National Association.
No service charge will be made for any registration of
transfer or exchange, but the Trustee may require exchange of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement
that the Trust created thereunder shall constitute a fixed investment trust for
federal income tax purposes under Treasury Regulation Section 301.7701-4, and
25
the Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the
Trustee created by the Trust Agreement with respect to the Certificates shall
terminate upon the earliest to occur of (i) the distribution in full of all
amounts due to Certificateholders and retirement of the Underlying Securities;
(ii) a call of all Certificates in connection with an Optional Call, and (iii)
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and holding
of the Certificates would not be prohibited under ERISA or the Code.
26
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ____________________ Attorney to transfer said
Certificate on the books of the Certificate Register, with full power of
substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed by
an "eligible guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Certificate Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
27
