Exhibit 4.1
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SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
SERIES 2001-7 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of March 2, 2001
Section 1. Incorporation of Standard Terms....................................1
Section 2. Definitions........................................................1
Section 3. Designation of Trust and Certificates..............................7
Section 4. Trust Certificates.................................................8
Section 5. Distributions......................................................8
Section 6. Trustee's Fees....................................................10
Section 7. Optional Exchange; Optional Redemption............................10
Section 8. Events 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....................................16
Section 14. Amendments.......................................................16
Section 15. Voting of Underlying Securities, Modification of Indenture.......16
SCHEDULE I SERIES 2001-7 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A FORM OF TRUST CERTIFICATE
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
Series 2001-7 TRUST
SERIES SUPPLEMENT, Series 2001-7, dated as of March 2, 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 2001-7 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.
"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 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 Trust Agreement.
"Call Rights" shall mean the rights to purchase in whole or
in part at the Redemption Price the Underlying Securities, and thereby cause an
Optional Redemption of the Certificates on any Redemption Date pursuant to the
Optional Redemption 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 B, to be issued by the Trust representing an
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 March 2, 2001.
"Collection Period" shall mean, (i) with respect to each
January Distribution Date, the period beginning on the day after the July
Distribution Date and ending on such January Distribution Date, inclusive and,
(ii) with respect to each July Distribution Date, the period beginning on the
day after the January Distribution Date of a given year and ending on the July
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.
"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 Underlying Securities are redeemed
pursuant to the Underlying Securities Trust Agreement.
"Eligible Account" shall have the meaning specified in the
Standard Terms.
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"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 permitted deferrals and 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 Underlying Securities
Trust Agreement.
"Extraordinary Trust Expenses" shall have the meaning
specified in the Standard Terms.
"Final Scheduled Distribution Date" shall mean July 15,
2029.
"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 March 2, 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.
"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.
"Optional Redemption" shall mean the redemption of the
Certificates by the Trust, in whole or in part, resulting from the exercise of
Call Rights by the Rights Holder, pursuant to Section 7 hereof.
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"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 February 21, 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.
"Redemption Date" shall mean any date occurring on or after
March 2, 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 Redemption are distributed to Holders of the
Certificates pursuant to Section 7 hereof.
"Redemption Price" shall mean, for each related Redemption
Date the principal amount of the Underlying Securities, plus accrued interest.
"Redemption Request" shall have the meaning specified in
Section 7(b) hereof.
"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 2001-7.
"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 $45,000,000 aggregate
principal amount of 7.75% Capital Securities due 2029 issued by the Underlying
Securities Issuer, as set forth on Schedule I attached hereto.
"Underlying Securities Issuer" shall mean KeyCorp Capital
III.
"Underlying Securities Trust Agreement" shall mean the
trust agreement pursuant to which the Underlying Securities were issued.
"Underlying Securities Property Trustee" shall mean Bankers
Trust Company.
"Underlying Securities Trustee" shall mean Bankers Trust
(Delaware).
"Underwriters" shall mean Xxxxxx Brothers Inc., an
affiliate of the Depositor, Prudential Securities Incorporated and UBS Warburg
LLC.
"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"
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"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"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"
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"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"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 2001-7 Trust." The Certificates evidencing certain undivided ownership
interests therein shall be known as "Corporate-Backed Trust Certificates, Series
2001-7" and 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 B. 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 $45,000,000.
(c) The Holders of the Certificates will be entitled to
receive on each Distribution Date the interest, if any, received on the
Underlying Securities. 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 3 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
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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
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; and
(b) second, to the Holders of the Certificates,
interest accrued and unpaid on the principal amount
of the Certificates (subject to Section 5(b) hereof).
(ii) the Trustee will pay the principal portion of
Available Funds:
(a) first, to the Trustee, as reimbursement for any
remaining 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, their
respective Certificate Principal Amounts; and
(c) third, to the Depositor, any remaining principal
portion of Available Funds.
(b) Distributions of interest on the Certificates may be
deferred as a result of the deferral of payment on the Underlying Securities.
Distributions on the Underlying Securities may be deferred pursuant to the
Underlying Securities Trust Agreement for up to ten consecutive semiannual
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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, and consequently the Certificates, will
continue to accrue at the applicable rate per annum compounded semi-annually.
(c) 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 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.
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(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 Redemption.
(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 percentages 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
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.
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(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 Redemption Date, the Certificates may be
redeemed at the Redemption Price, in whole or in part, by the Rights Holder, or
an affiliate thereof, upon receipt of the Redemption Price in respect of a
proportionate amount of Underlying Securities on or prior to such Redemption
Date. In a partial redemption, Certificates shall be redeemed pro rata.
(ii) The Rights Holder may provide notice to the Trustee (a
"Redemption Request"), no less than 5 Business Days prior to any Redemption
Date, that it is exercising its Call Rights with respect to the Certificates on
such Redemption Date.
(iii) Upon receipt of a Redemption Request, the Trustee
shall provide a conditional redemption notice to the Depository not less than 3
Business Days prior to the applicable Redemption Date.
(iv) As a condition to any Optional Redemption, 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
Redemption 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 Underlying Securities to the Rights
Holder (the "Purchaser") will only be made against payment by the Purchaser of
the Redemption Price in immediately available funds. Such payment must occur no
later than 10:00 a.m. New York City time on the Redemption 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 Redemption 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 the receipt
of the Redemption Price as aforesaid, the Trustee shall pay the Redemption Price
to the Certificateholders on the Redemption 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 Redemption Price without the prior
written consent of the Rights Holder.
(vii) The Trustee shall not be obligated to determine
whether an Optional Redemption 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. 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 of 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 2001-7 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of
the Standard Terms shall not apply to the Series 2001-7 Certificates.
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(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.
(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 2001-7 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, pro rata in
proportion to 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.
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(m) Notwithstanding anything in the Trust Agreement to the
contrary, the Trustee will have no recourse to the Underlying Securities.
(n) 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.
(o) 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
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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:
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.
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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 any Class of
Certificates without the consent of the Holders of 100% of such Class of
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 Class of
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 Trust Agreement 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, after weighing the votes of the Certificateholders;
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
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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 Trust Agreement 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 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 Underlying Securities
Trust Agreement occurs and is continuing, and if directed by a majority of the
outstanding Certificateholders, the Trustee shall vote the Underlying Securities
in favor of directing, or take such other action as may be appropriate to
direct, the Underlying Securities Trustee to declare the unpaid principal amount
of the Underlying Securities and any accrued and unpaid interest thereon to be
due and payable.
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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, 2001-7
Trust
By:
-------------------------------------
Name:
Title:
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SCHEDULE I
SERIES 2001-7
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 7.75% Capital Securities due 2029.
Underlying Securities Issuer: KeyCorp Capital III.
CUSIP Number: 00000XXX0.
Principal Amount Deposited: $45,000,000.
Original Issue Date: July 15, 1999.
Principal Amount of
Underlying Securities
Originally Issued: $250,000,000.
Maturity Date: July 15, 2029.
Principal Payment Date: July 15, 2029.
Interest Rate: 7.75% per annum.
Interest Payment Dates: January 15th and July 15th.
Underlying Securities Record Dates: The day immediately preceding each
Distribution Date.
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EXHIBIT A
FORM OF TRUST CERTIFICATE
-------------------------
NUMBER [________] [1,800,000] $[25] PAR
CERTIFICATES
CUSIP NO. [ ]
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
[1,800,000] $[25] PAR
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-7
7.75% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $[_________]
aggregate principal amount of 7.75% Capital Securities due July 15, 2029, issued
by KeyCorp Capital III (the "Underlying Security Issuer") and all payments
received thereon (the "Trust Property"), deposited in trust by Xxxxxx ABS
Corporation (the "Depositor").
THIS CERTIFIES THAT [___________________] is the registered
owner of $[_______________] DOLLARS nonassessable, fully-paid, proportionate
undivided beneficial ownership interest in the Corporate Backed Trust
Certificates, Series 2001-7 Trust, formed by the Depositor.
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 2001-7, dated as of
March 2, 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 2001-7 (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 March 2,
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.
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
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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.
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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 2001-7 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
---------------------------------------------
Authorized Signatory
Dated: [______________]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates,
Series 2001-7, 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
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(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
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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.
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