SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES,
FEDERAL EXPRESS CORPORATION NOTE-BACKED SERIES 2001-37 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of December 27, 2001
(Federal Express Corporation)
TABLE OF CONTENTS
PAGE
Section 1. Incorporation of Standard Terms...................................1
Section 2. Definitions.......................................................1
Section 3. Designation of Trust and Certificates.............................8
Section 4. Trust Certificates................................................9
Section 5. Distributions.....................................................9
Section 6. Trustee's Fees...................................................11
Section 7. Optional Exchange; Optional Call.................................12
Section 8. Notices of Events of Default.....................................14
Section 9. Miscellaneous....................................................14
Section 10. Governing Law...................................................17
Section 11. Counterparts....................................................17
Section 12. Termination of the Trust........................................17
Section 13. Sale of Underlying Securities...................................17
Section 14. Amendments......................................................17
Section 15. Voting of Underlying Securities, Modification of Indenture......18
Section 16. UCC Representations and Warranties..............................19
SCHEDULE I SERIES 2001-37 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A FORM OF CERTIFICATE
EXHIBIT B FORM OF CALL WARRANT
EXHIBIT C FORM OF WARRANT AGENT AGREEMENT
EXHIBIT D FORM OF INVESTMENT LETTER (CALL WARRANTS)
i
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES,
FEDERAL EXPRESS CORPORATION NOTE-BACKED SERIES 2001-37 TRUST
SERIES SUPPLEMENT, Series 2001-37, dated as of December 27, 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 Federal Express Corporation Note-Backed Series
2001-37 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
1
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.
2
"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, as
well as any reinvestment proceeds on amounts paid in respect of the Underlying
Securities.
"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
Indenture.
"Call Date" shall mean any Business Day occurring on or
after December 27, 2006, or after the announcement of any unscheduled payment of
the Underlying Securities on which the Call Warrants are exercised and the
proceeds of an Optional Call are distributed to holders of the Certificates
pursuant to Section 7 hereof.
"Call Notice" shall have the meaning specified in Section
1.1 of the Warrant Agent Agreement.
"Call Price" shall mean, for each related Call Date, the
principal amount of the Certificates to be purchased by the Warrant Holder on
such date, plus any accrued and unpaid interest on such amount to but excluding
the Call Date.
"Call Warrants" 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 herein and in
the Certificates.
"Closing Date" shall mean December 27, 2001.
"Collection Period" shall mean, (i) with respect to each
July Distribution Date, the period beginning on the day after the January
Distribution Date of such year 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 the prior year and
ending on such January Distribution Date, 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 1 and July 1 of each
year (or if such date is not a Business Day, the next succeeding Business Day),
commencing on January 1, 2002 and ending on the Final Scheduled Distribution
Date.
"Eligible Account" shall have the meaning specified in the
Standard Terms.
"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 Underlying Securities.
"Exchange Act" shall mean the Securities and Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
"Extraordinary Trust Expenses" shall have the meaning
specified in the Standard Terms.
"Final Scheduled Distribution Date" shall mean July 1,
2097.
"Indenture" shall mean the indenture pursuant to which the
Underlying Securities 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 December 27, 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 Call" shall mean the call of the Certificates by
the Warrant Holder, in whole or in part, resulting from the exercise of Call
Warrants by the Warrant Holder, pursuant to Section 7(b) hereof.
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"Optional Exchange" shall mean the exchange of the
Certificates by the Trust for the Underlying Securities, pursuant to Section
7(a) hereof.
"Optional Exchange Date" shall mean any Distribution Date
on which Underlying Securities subject to Optional Exchange are distributed to 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 December 17, 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.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies Inc.
"Series" shall mean Series 2001-37.
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"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 $10,300,000 aggregate
principal amount of 7.60% Notes due 2097 issued by the Underlying Securities
Issuer (as set forth on Schedule I attached hereto) on the Closing Date and any
additional Underlying Securities transferred to the Trust after the Closing
Date.
"Underlying Securities Issuer" shall mean Federal Express
Corporation and any successor in respect of the Underlying Securities.
"Underlying Securities Trustee" shall mean Bank One Trust
Company, N.A., (successor in interest to The First National Bank of Chicago).
"Underwriters" shall mean Xxxxxx Brothers Inc., an
affiliate of the Depositor, Prudential Securities Incorporated and First Union
Securities, Inc.
"Voting Rights" shall, in the entirety, be allocated among
all Certificateholders in proportion to the then unpaid principal amounts of
their respective Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust
National Association.
"Warrant Agent Agreement" shall mean that certain Warrant
Agent Agreement (in the form attached hereto as Exhibit C), dated as of the date
hereof, between the Depositor and U.S. Bank Trust National Association, as
Warrant Agent and as Trustee, as the same may be amended from time to time.
(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"
6
"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"
"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"
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"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, Federal
Express Corporation Note-Backed Series 2001-37 Trust." The Certificates
evidencing certain undivided ownership interests therein shall be known as
"Corporate Backed Trust Certificates, Federal Express Corporation Note-Backed
Series 2001-37." The Trust is also issuing call warrants with respect to the
Certificates ("Call Warrants").
(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 $10. Except as
provided in the Standard Terms and in paragraph (c) of 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 $10,100,000. 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 7.75% per annum on the outstanding Certificate Principal
Amount of Certificates. On January 1, 2002, the Trustee will pay to the
Depositor the amount of interest accrued and paid on the Underlying Securities
from July 1, 2001, to but not including the Closing Date. If Available Funds are
insufficient to pay such amount, the Trustee will pay the Depositor its pro rata
share, based on the ratio the amount owed to the Depositor bears to all amounts
owed on the Certificates in respect of accrued interest, of any proceeds from
the recovery on the Underlying Securities.
(c) The Depositor may sell to the Trustee additional Underlying
Securities on any date hereafter upon at least 3 Business Days (or such lesser
period as may be agreed by the parties hereto) 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
8
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, on its order, Certificates
in the same proportion as the original Certificates bear to the initial
Underlying Securities, as well as the Call Warrants related thereto. Any such
additional Certificates authenticated and delivered shall have the same terms
and rank pari passu with the original Certificates issued in accordance with
this Series Supplement.
(d) As a condition precedent for transferring the Call Warrants, the
prospective transferee shall be required to deliver to the Trustee and the
Depositor, an executed copy of the Investment Letter (set forth as Exhibit D
hereto).
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,
in the following order of priority:
(i) the Trustee will pay the interest portion of Available Funds with
respect to the Underlying Securities (subject to Section 5(ii) below):
(a) first, to the Trustee, as reimbursement for any Extraordinary
Trust Expenses incurred by the Trustee with respect to the Underlying Securities
in accordance with Section 6(b) below and approved by 100% of the
Certificateholders;
(b) second, to the holders of the Certificates, interest at the rate
of 7.75% per annum on the principal amount of the Certificates; and
(c) third, to the Depositor, any remainder.
(ii) the Trustee will pay the principal portion of Available Funds
with respect to the Underlying Securities:
(a) first, to the Trustee, as reimbursement for any remaining
Extraordinary Trust Expenses incurred by the Trustee with respect to the
Underlying Securities in accordance with Section 6(b) below and approved by 100%
of the Certificateholders; and
(b) second, to the holders of the Certificates, all remaining
amounts.
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(b) Unless otherwise instructed by holders of Certificates
representing a majority of the Voting Rights within thirty (30) days after the
Trustee gives notice pursuant to Section 8 hereof, the Trustee will sell the
Underlying Securities pursuant to Section 13 hereof and deposit the Liquidation
Proceeds, if any, into the Certificate Account for distribution not later than
two (2) Business Days after the receipt of immediately available funds in
accordance with Section 5(b) hereof.
(c) In the event that the Trustee receives non-cash property in
respect of the Underlying Securities (other than a scheduled payment on or with
respect to an interest payment date) 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 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.
(d) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any required distributions due to any class of Certificates
on any Distribution Date, any shortfall will be carried over and will be
distributed on the next Distribution Date on which sufficient funds are
available to pay such shortfall.
(e) If a payment with respect to the Underlying Securities is made to
the Trustee after the Distribution Date on which such payment was scheduled to
be distributed in respect of the Certificates, 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.
(f) Notwithstanding Section 3.12 of the Standard Terms, if the
Underlying Securities Issuer ceases to file periodic reports as required under
the Exchange Act, the Depositor shall within a reasonable period of time
instruct the Trustee to (i) distribute the Underlying Securities in-kind to the
Certificateholders or (ii) sell the Underlying Securities and distribute the
proceeds of such sale to the Certificateholders in accordance with Section 5(a)
hereof; provided, however, that the Depositor shall not instruct the Trustee
pursuant to this clause unless the Underlying Securities Issuer has either (x)
stated in writing that it intends permanently to cease filing reports required
under the Exchange Act or (y) failed to file any required reports for one full
calendar year.
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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 of the Certificateholders then outstanding have directed 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 any Distribution Date, any holder of Certificates and the
related Call Warrants, if Call Warrants related to such Certificates are
outstanding, may exchange such Certificates and, if applicable, the related Call
Warrants, for a distribution of Underlying Securities representing the same
percentage of the Underlying Securities as such Certificates represent of all
outstanding Certificates.
(ii) The following conditions shall apply to any Optional
Exchange.
(a) A notice specifying the number of Certificates
being surrendered and the Optional Exchange Date
shall be delivered to the Trustee no less than 5 days
(or such shorter period acceptable to the Trustee)
but not more than 30 days before the Optional
Exchange Date.
(b) Certificates and, if applicable, the Call
Warrants, shall be surrendered to the Trustee no
later than 10:00 a.m. (New York City time) on the
Optional Exchange Date.
(c) The Trustee shall have received an opinion of
counsel stating that the Optional Exchange would not
affect the characterization of the Trust as a
"grantor trust" for federal income tax purposes.
(d) Except in connection with the exchange of
Certificates acquired pursuant to Section 7(b), (1)
the Trustee shall have received a certification from
the Certificateholder that any Certificates being
surrendered have been held for at least six months,
11
and (2) the Certificates being surrendered may
represent no more than 5% (or 25% in the case of
Certificates acquired by the Underwriter but never
distributed to investors) of the then outstanding
Certificates.
(e) 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.
(f) The provisions of Section 4.07 of the Standard
Terms shall not apply to an Optional Exchange
pursuant to this Section 7(a). This Section 7(a)
shall not provide any person with a lien against, an
interest in or a right to specific performance with
respect to the Underlying Securities.
(b) (i) Concurrently with the execution of this Series Supplement,
the Trustee, on behalf of the Trust, shall execute the Warrant Agent Agreement
and the Call Warrants, dated as of the date hereof and substantially in the form
of Exhibit B hereto, initially evidencing all of the Call Warrants. The Trustee
shall perform the Trust's obligations under the Warrant Agent Agreement and the
Call Warrants in accordance with their respective terms. On any Call Date,
Certificates may be called at the applicable Call Price, in whole or in part, by
the Warrant Holder, upon payment of such Call Price on or prior to such Call
Date. In addition to the conditions described in this Section 7(b) relating to
any Optional Call, the conditions set forth in Section 1.1 of the Warrant Agent
Agreement shall also apply.
(ii) The Warrant Holder may provide notice to the Trustee (a "Call
Notice") no less than 5 Business Days prior to any Call Date, that it is
exercising its Call Warrants with respect to the Certificates on such Call Date.
Upon request of the Trustee, the Warrant Holder shall deliver the opinion
specified in Section 7(a)(ii)(c) above as a condition to any Optional Call.
(iii) Upon receipt of a Call Notice, 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 Warrant 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 Warrant Holder shall provide a
certificate of solvency to the Trustee.
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(v) Deliveries of the Underlying Securities to the Warrant 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 Warrants 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 in accordance with the definition of "Call Price".
(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
100% of the Warrant Holders.
(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 Warrant Holder with a
lien against, an interest in or a right to specific performance with respect to
the Underlying Securities.
(ix) The Warrant Holder shall initially be the Depositor.
Section 8. Notices of Events of Default.
As promptly as practicable after, and in any event within 30 days
after, the occurrence of any Event of Default actually known to the Trustee, the
Trustee shall give notice of such Event of Default to the Depository, or, if any
Certificates are not then held by DTC or any other depository, directly to the
registered holders of such Certificates. 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 Federal Express Corporation Note-Backed Series 2001-37
Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the
Standard Terms shall not apply to the Federal Express Corporation Note-Backed
Series 2001-37 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 Federal Express Corporation Note-Backed Series 2001-37
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 the 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
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
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
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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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; (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 and (iv) the exercise of all outstanding Call
Warrants by the Warrant Holder.
Section 13. Sale of Underlying Securities. In the event of a sale of
the Underlying Securities pursuant to Section 5(c) hereof or pursuant to the
instructions of the Warrant Agent under Section 1.2 of the Warrant Agent
Agreement, the Trustee shall solicit bids for the sale of the Underlying
Securities with settlement thereof on or before the third 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) Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (4) UBS Warburg LLC, (5)
Xxxxxxx Xxxxx Xxxxxx Inc., and (6) except in the case of a sale related to the
exercise of Call Warrants by the Depositor or any Affiliate thereof, Xxxxxx
Brothers Inc. The Trustee shall not be responsible for the failure to obtain a
16
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 an Optional Exchange, the
Trustee shall only deliver the Underlying Securities to the purchaser of such
Underlying Securities or sell the Underlying Securities pursuant to this Section
13, as the case may be, 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 Class of 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 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
17
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 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
offer promptly. The Trustee must reject any such offer unless the Trustee is
directed by the affirmative vote of the holders of 100% of all of the
Certificates to accept such offer and the Trustee has received the tax opinion
described above. If pursuant to the preceding sentence, the Trustee accepts any
such offer, the Trustee shall promptly notify the Rating Agencies.
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.
Section 16. UCC Representations and Warranties.
It is the express intent of the parties hereto that the conveyance of
the Underlying Securities by the Depositor to the Trustee be, and be construed
as, a sale of the Underlying Securities by the Depositor and not a pledge of any
Underlying Securities by the Depositor to secure a debt or other obligation of
the Depositor. In the event that, notwithstanding the aforementioned intent of
the parties, any Underlying Securities are held to be property of the Depositor,
then, it is the express intent of the parties that such conveyance be deemed a
pledge of such Underlying Securities by the Depositor to the Trustee to secure a
debt or other obligation of the Depositor, pursuant to Section 10.07 of the
Standard Terms. In connection with any such grant of a security interest in the
Underlying Securities, Depositor hereby represents and warrants to Trustee as
follows:
(i) In the event the Underlying Securities are held to be property
of the Depositor, then the Trust Agreement creates a valid and
continuing security interest (as defined in the applicable
Uniform Commercial Code) in the Underlying Securities in favor
of the Trustee which security interest is prior to all other
liens, and is enforceable as such as against creditors of, and
purchasers from, the Depositor.
18
(ii) The Underlying Securities have been credited to a trust
account (the "Securities Account") of the Trustee, or its
authorized agent, in accordance with Section 2.01 of the
Standard Terms. The Trustee, as securities intermediary for
the Securities Account, has agreed to treat the Underlying
Securities as "financial assets" within the meaning of the
Uniform Commercial Code.
(iii) Immediately prior to the transfer of the Underlying Securities
to the Trust, Depositor owned and had good and marketable
title to the Underlying Securities free and clear of any lien,
claim or encumbrance of any Person.
(iv) Depositor has received all consents and approvals required by
the terms of the Underlying Securities to the transfer to the
Trustee of its interest and rights in the Underlying
Securities as contemplated by the Trust Agreement.
(v) Depositor has taken all steps necessary to cause the Trustee,
as securities intermediary for the Securities Account, to
identify on its records that the Trustee, as the trustee of
the Trust, is the Person having a security entitlement against
the securities intermediary in the Securities Account.
(vi) Depositor has not assigned, pledged, sold, granted a security
interest in or otherwise conveyed any interest in the
Underlying Securities (or, if any such interest has been
assigned, pledged or otherwise encumbered, it has been
released). Depositor has not authorized the filing of and is
not aware of any financing statements against Depositor that
includes a description of the Underlying Securities. Depositor
is not aware of any judgment or tax lien filings against
Depositor.
(vii) The Securities Account is not in the name of any Person other
than the Trust. Depositor has not consented to the compliance
by the Trustee, as securities intermediary, with entitlement
orders of any Person other than the Trustee, as trustee of the
Trust.
19
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: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee on behalf
of the Corporate Backed Trust
Certificates, Federal Express Corporation
Note-Backed Series 2001-37
Trust
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
20
SCHEDULE I
SERIES 2001-37
UNDERLYING SECURITIES SCHEDULE
------------------------------
Underlying Securities: 7.60% Notes due July 1, 2097.
Underlying Securities Issuer: Federal Express Corporation.
CUSIP Number: 000000XX0.
Principal Amount Deposited: $10,300,000.
Original Issue Date: July 10, 1997.
Maturity Date: July 1, 2097.
Principal Payment Date: July 1, 2097.
Interest Rate: 7.60% per annum.
Interest Payment Dates: January 1st and July 1st.
21
EXHIBIT A
FORM OF CERTIFICATE
-------------------
NUMBER [ ] [1,010,000] $10 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
[1,010,000] $10 PAR
CORPORATE BACKED TRUST CERTIFICATES,
FEDERAL EXPRESS CORPORATION NOTE-BACKED SERIES 2001-37
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 7.60% Notes due July 1, 2097, issued by Federal
Express Corporation (the "Underlying Security Issuer") and all payments received
thereon (the "Trust Property"), deposited in trust by Xxxxxx ABS Corporation
(the "Depositor").
22
THIS CERTIFIES THAT [ ] is the registered owner of
[ ] DOLLARS nonassessable, fully-paid, proportionate undivided
beneficial ownership interest in the Corporate Backed Trust Certificates,
Federal Express Corporation Note-Backed Series 2001-37 Trust, formed by the
Depositor.
23
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 2001-37, dated as
of December 27, 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, Federal Express
Corporation Note-Backed Series 2001-37" (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 December 27, 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.
24
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.
25
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
FEDERAL EXPRESS CORPORATION NOTE-BACKED
SERIES 2001-37 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,
Federal Express Corporation Note-Backed Series 2001-37, 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
26
(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 Class A-1 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 $10.
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
27
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) the distribution in full of all Underlying Securities to the exchanging
Certificateholders on any Optional Exchange Date and any amounts due to
Certificateholders on any Optional Exchange Date; (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 and (iv) the exercise of all outstanding Call Warrants
by the Warrant Holder.
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.
28
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.
29
EXHIBIT B
FORM OF CALL WARRANT
--------------------
CORPORATE BACKED TRUST CERTIFICATES, FEDERAL EXPRESS
CORPORATION NOTE-BACKED SERIES 2001-37 TRUST,
Call Warrant
Dated as of [ ]
THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE
A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM
UNDER SUCH ACT. THIS CALL WARRANT REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS CALL WARRANT.
CORPORATE BACKED TRUST CERTIFICATES, FEDERAL EXPRESS CORPORATION
NOTE-BACKED SERIES 2001-37 TRUST,
Call Warrant
[1,010,000] Warrants
(Each Call Warrant relates to $10 principal amount of Certificates)
First Call Date: [ ] (subject to the terms hereof)
No. [ ] [ ], 2001
Corporate Backed Trust Certificates, Federal Express
Corporation Note-Backed Series 2001-37 Trust (the "Trust"), a trust created
under the laws of the State of New York pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Agreement"), between Xxxxxx ABS
Corporation (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 2001-37, dated
as of December 27, 2001 (the "Series Supplement") and, together with the
Agreement, the "Trust Agreement"), between the Depositor and the Trustee, for
value received, hereby certifies that [ ] or registered assigns, is
entitled to call [1,010,000] 7.60% Certificates due July 1, 2097 (the
"Certificates"), issued by Corporate Backed Trust Certificates, Federal Express
30
Corporation Note-Backed Series 2001-37 Trust in whole or in part on any Call
Date (as defined below) designated by the holder of this instrument (this "Call
Warrant") at a call price equal to the Call Price (as defined below), all
subject to the terms and conditions set forth below.
Certain capitalized terms used in this Call Warrant are
defined in Article IV hereof; capitalized terms used but not defined herein
shall have the respective meanings set forth in the Trust Agreement; references
to an "Exhibit" are, unless otherwise specified, to one of the Exhibits attached
to this Call Warrant and references to a "Section" are, unless otherwise
specified, to one of the sections of this Call Warrant.
ARTICLE I
Exercise of Call Warrants
Section 1.1 Manner of Exercise. (a) This Call Warrant may be exercised by the
holder hereof (each, a "Warrant Holder"), in whole or in part, on any Call
Date, set forth in a written notice delivered to the Warrant Agent and the
Trustee at any time on or before the Business Day that is at least 5
Business Days before such Call Date, by surrender of this Call Warrant to
the Warrant Agent at its office set forth in Section 6.3 hereof no later
than 10:00 a.m. (New York City time) on such Call Date; provided that such
holder shall have made payment to the Warrant Agent, by wire transfer or
other immediately available funds acceptable to the Warrant Agent, in the
amount of the applicable Call Price, in a manner such that funds are
available to the Warrant Agent no later than 10:00 a.m. (New York City
time) on such Call Date, and such holder shall thereupon be entitled to
delivery of the Certificates in a Certificate Principal Amount equal to
$10 per Call Warrant (if exercised in whole); provided further that if the
Warrant Holder is the Depositor or an Affiliate thereof, such Warrant
Holder shall not be entitled to delivery of the Certificates being called
(the "Called Certificates"), and shall only be entitled to receive the
cash proceeds of the sale of the Underlying Securities related to such
Called Certificates; and provided further that the Warrant Holder may not
exercise this Call Warrant at any time when such Warrant Holder is
insolvent, and in connection therewith, such Warrant Holder shall be
required to certify that it is solvent at the time of exercise settlement,
by completing the Form of Subscription attached to this Call Warrant and
delivering such completed Form of Subscription to the Trustee on or prior
to the Call Date and deliver to the Trustee a form reasonably satisfactory
to the Trustee of the opinion and the solvency certificate required
pursuant to Section 7(b)(iv) of the Series Supplement.
(b) The Warrant Agent shall notify the Trustee immediately upon receipt by the
Warrant Agent of a notice by the holder of this Call Warrant and upon
receipt of payment of the applicable Call Price from such holder pursuant
to clause (a) of this Section 1.1. The Warrant Agent shall transfer each
payment made by the holder hereof pursuant to clause (a) of this Section
1.1 to the Trustee in immediately available funds, for application
pursuant to the Trust Agreement on the applicable Call Date (and, pending
31
such transfer, shall hold each such payment for the benefit of the holder
hereof in a segregated trust account).
(c) A notice by the holder of a Call Warrant does not impose any obligations
on a holder of a Call Warrant in any way to pay any Call Price. If, by
10:00 a.m. (New York City time) on the Call Date, the holder of the Call
Warrant being exercised has not paid the Call Price, then such notice
shall automatically expire and none of the holder of such Call Warrant,
the Warrant Agent and the Trustee shall have any obligations with respect
to such notice by the holder of such Call Warrant. The expiration of a
notice by the holder of this Call Warrant shall in no way affect a holder
of a Call Warrant's right to subsequently deliver a notice which satisfies
the terms of the Trust Agreement.
Section 1.2 Transfer of Certificates. As soon as practicable after each
surrender of this Call Warrant, in whole or in part on the Call Date and
upon satisfaction of all other requirements described in this Call
Warrant, the Warrant Agent shall instruct the Trustee to cause a number of
the Certificates equal to the number of the Call Warrants being exercised
hereunder to reflect the new beneficial ownership of the Certificates,
and, in case such exercise is in part only, a new Call Warrant of like
tenor, representing the remaining outstanding Call Warrants of the holder,
shall be delivered by the Warrant Agent to the holder hereof.
Section 1.3 Cancellation and Destruction of Call Warrant. All Call Warrants
surrendered to the Warrant Agent for the purpose of exercise (in whole or
in part) pursuant to Section 1.1 and actually exercised, or for the
purpose of transfer or exchange pursuant to Article III, shall be
cancelled by the Warrant Agent, and no Call Warrant shall be issued in
lieu thereof. The Warrant Agent shall destroy all cancelled Call Warrants.
Section 1.4 No Rights as Holder of Certificates Conferred by Call Warrants.
Prior to the exercise hereof, this Call Warrant shall not entitle the
holder hereof to any of the rights of a holder of the Certificates,
including, without limitation, the right to receive the payment of any
amount on or in respect of the Certificates or to enforce any of the
covenants of the Trust Agreement.
ARTICLE II
Restrictions on Transfer
Section 2.1 Restrictive Legends. Except as otherwise permitted by this Article
II, each Call Warrant (including each Call Warrant issued upon the
transfer of any Call Warrant) shall be issued with a legend in
substantially the following form:
"This Call Warrant has not been registered under the
Securities Act of 1933, as amended, and may not be transferred, sold or
otherwise disposed of except while a registration under such Act is in effect or
pursuant to an exemption therefrom under such Act. This Call Warrant represented
32
hereby may be transferred only in compliance with the conditions specified in
this Call Warrant."
Section 2.2 Notice of Proposed Transfer. Prior to any transfer of any Call
Warrant or portion thereof, the holder hereof will give five (5) Business
Days (or such lesser period acceptable to the Warrant Agent) prior written
notice to the Warrant Agent of such holder's intention to effect such
transfer.
ARTICLE III
Registration and Transfer of Call Warrants, etc.
Section 3.1 Warrant Register; Ownership of Call Warrants. The Warrant Agent will
keep a register in which the Warrant Agent will provide for the
registration of Call Warrants and the registration of transfers of Call
Warrants representing whole numbers of Call Warrants. The Trustee and the
Warrant Agent may treat the Person in whose name any Call Warrant is
registered on such register so the owner thereof for all purposes, and the
Trustee and the Warrant Agent shall not be affected by any notice to the
contrary.
Section 3.2 Transfer and Exchange of Call Warrants. Upon surrender of any Call
Warrant for registration of transfer or for exchange to the Warrant Agent,
the Warrant Agent shall (subject to compliance with Article II) execute
and deliver, and cause the Trustee, on behalf of the Trust, to execute and
deliver, in exchange therefor, a new Call Warrant of like tenor and
evidencing a like whole number of Call Warrants, in the name of such
holder or as such holder (upon payment by such holder of any applicable
transfer taxes or government charges) may direct.
Section 3.3 Replacement of Call Warrants Upon receipt of evidence reasonably
satisfactory to the Warrant Agent of the loss, theft, destruction or
mutilation of any Call Warrant and, in the case of any such loss, theft or
destruction of any Call Warrant, upon delivery of an indemnity bond in
such reasonable amount as the Warrant Agent may determine, or, in the case
of any such mutilation, upon the surrender of such Call Warrant for
cancellation to the Warrant Agent, the Warrant Agent shall execute and
deliver, and cause the Trustee, on behalf of the Trust, to execute and
deliver, in lieu thereof, a new Call Warrant of like tenor bearing a
number not contemporaneously outstanding.
Section 3.4 Execution and Delivery of Call Warrants by Trustee. The Trustee, on
behalf of the Trust, hereby agrees (subject to compliance with Article II)
to execute and deliver such new Call Warrants issued in accordance with
Section 1.2 or this Article III as the Warrant Agent shall request in
accordance herewith.
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ARTICLE IV
Definitions
As used herein, unless the context otherwise requires, the
following terms have the following respective
meanings:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any day occurring on or after December 27,
2006, or after the announcement of any redemption or other unscheduled payment
of the Certificates on which the Call Warrants are exercised and the proceeds of
an Optional Call (as defined in the Series Supplement) are distributed to the
Holders of the Certificates pursuant to Section 7 of the Series Supplement.
"Call Price": An amount paid by the Warrant Holder on each
Call Date equal to the principal amount of the Certificates being purchased
pursuant to the exercise of the Call Warrants plus accrued and unpaid interest
(including any deferred distributions with interest thereon) to and including
the Call Date.
"Call Warrant": This instrument evidencing the right to
call the Certificates.
"Closing Date": [ ], 2001.
"Depositor": As defined in the introduction to this Call
Warrant, or any successor thereto under the Trust Agreement.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Rating Agencies": Standard & Poor's Ratings Services and
Xxxxx'x Investors Service, Inc. and any thereto.
"Responsible Officer": As defined in the Trust Agreement.
"Securities Act": The Securities Act of 1933, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Trust": As defined in the introduction to this Call
Warrant.
"Trust Agreement": The Standard Terms for Trust Agreements,
dated as of January 16, 2001, between the Depositor and the Trustee, as
supplemented by the Series Supplement 2001-37, dated as of December 27, 2001,
between the Depositor and the Trustee, incorporating by reference the
definitions and assumptions thereto, as the same may be amended or modified from
time to time.
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"Trustee": As defined in the introduction to this Warrant,
or any successor thereto under the Trust Agreement.
"Warrant Agent": U.S. Bank Trust National Association, a
national banking association, in its capacity as warrant agent hereunder, or any
successor thereto hereunder.
ARTICLE V
Warrant Agent
Section 5.1 Limitation on Liability. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken, suffered
or omitted by it in connection with its administration of the Call
Warrants in reliance upon any instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document in good faith believed
by it to be genuine and to be signed, executed and, where necessary,
verified and acknowledged, by the proper Person or Persons.
Section 5.2 Duties of Warrant Agent. The Warrant Agent undertakes only the
specific duties and obligations imposed hereunder upon the following terms
and conditions, by all of which the Depositor, the Trust, the Trustee and
each holder of a Call Warrant shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may be legal counsel
for the Depositor), and the opinion of such counsel shall be full and
complete authorization and protection to the Warrant Agent as to any
action taken or omitted by it in good faith and in accordance with such
opinion, provided the Warrant Agent shall have exercised reasonable care
in the selection by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the Warrant Agent
shall deem it necessary or desirable that any fact or matter be proved or
established by the Depositor or the Trustee prior to taking or suffering
any action hereunder, such fact or matter may be deemed to be conclusively
proved and established by a Depositor Order or a certificate signed by a
Responsible Officer of the Trustee and delivered to the Warrant Agent; and
such certificate shall be full authorization to the Warrant Agent for any
action taken or suffered in good faith by it hereunder in reliance upon
such certificate.
(c) The Warrant Agent shall be liable hereunder only for its own negligence,
willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained herein or be required to verify
the same, but all such statements and recitals are and shall be deemed to
have been made by the Trust and the Depositor only.
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(e) The Warrant Agent shall not have any responsibility in respect of and
makes no representation as to the validity of this Call Warrant or the
execution and delivery hereof (except the due execution hereof by the
Warrant Agent); nor shall it be responsible for any breach by the Trust of
any covenant or condition contained in this Call Warrant; nor shall it by
any act hereunder be deemed to make any representation or warranty as to
the Certificates to be purchased hereunder.
(f) The Warrant Agent is hereby authorized and directed to accept instructions
with respect to the performance of its duties hereunder from the Chairman
of the Board, the Chief Executive Officer, Chief Financial Officer, Chief
Operating Officer, President, a Vice President, a Senior Vice President, a
Managing Director, its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary of the Depositor, and any Responsible Officer of
the Trustee, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action
taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(g) The Warrant Agent and any shareholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Call Warrants or
other securities of the Trust or otherwise act as fully and freely as
though it were not Warrant Agent hereunder, so long as such persons do so
in full compliance with all applicable laws. Nothing herein shall preclude
the Warrant Agent from acting in any other capacity for the Trust, the
Depositor or for any other legal entity.
(h) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the Trust hereunder.
The Warrant Agent shall not be liable except for the failure to perform
such duties as are specifically set forth herein, and no implied covenants
or obligations shall be read into this Call Warrant against the Warrant
Agent, whose duties shall be determined solely by the express provisions
hereof. The Warrant Agent shall not be deemed to be a fiduciary.
(j) The Warrant Agent shall not be responsible for any failure on the part of
the Trustee to comply with any of its covenants and obligations contained
herein.
(k) The Warrant Agent shall not be under any obligation or duty to institute,
appear in or defend any action, suit or legal proceeding in respect
hereof, unless first indemnified to its satisfaction, but this provision
shall not affect the power of the Warrant Agent to take such action as the
Warrant Agent may consider proper, whether with or without such indemnity.
The Warrant Agent shall promptly notify the Depositor and the Trustee in
writing of any claim made or action, suit or proceeding instituted against
it arising out of or in connection with this Call Warrant.
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(l) The Trustee will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may be required by the Warrant Agent in
order to enable it to carry out or perform its duties hereunder.
Section 5.3 Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties hereunder upon thirty (30) days notice in
writing mailed to the Depositor and the Trustee by registered or certified
mail, and to the holders of the Call Warrants by first-class mail at the
expense of the Depositor; provided that no such resignation or discharge
shall become effective until a successor Warrant Agent shall have been
appointed hereunder. The Depositor may remove the Warrant Agent or any
successor Warrant Agent upon thirty (30) days notice in writing, mailed to
the Warrant Agent or successor Warrant Agent, as the case may be, and to
the holders of the Call Warrants by first-class mail; provided further
that no such removal shall become effective until a successor Warrant
Agent shall have teen appointed hereunder. If the Warrant Agent shall
resign or be removed or shall otherwise become incapable of acting, the
Depositor shall promptly appoint a successor to the Warrant Agent, which
may be designated as an interim Warrant Agent. If an interim Warrant Agent
is designated, the Depositor shall then appoint a permanent successor to
the Warrant Agent, which may be the interim Warrant Agent. If the
Depositor shall fail to make such appointment of a permanent successor
within a period of thirty (30) days after such removal or within sixty
(60) days after notification in writing of such resignation or incapacity
by the resigning or incapacitated Warrant Agent or by the holder of a Call
Warrant, then the Warrant Agent or registered holder of any Warrant may
apply to any court of competent jurisdiction for the appointment of such a
successor. Any successor to the Warrant Agent appointed hereunder must be
rated in one on the four highest rating categories by the Rating Agencies.
Any entity which may be merged or consolidated with or which shall
otherwise succeed to substantially all of the trust or agency business of
the Warrant Agent shall be deemed to be the successor Warrant Agent
without any further action.
ARTICLE VI
Miscellaneous
Section 6.1 Remedies. The remedies at law of the holder of this Call Warrant in
the event of any default or threatened default by the Warrant Agent in the
performance of or compliance with any of the terms of this Call Warrant
are not and will not be adequate and, to the full extent permitted by law,
such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against
a violation of any of the terms hereof or otherwise.
Section 6.2 Limitation on Liabilities of Holder. Nothing contained in this Call
Warrant shall be construed as imposing any obligation on the holder hereof
to purchase any of the Certificates except in accordance with the terms
hereof.
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Section 6.3 Notices. All notices and other communications under this Call
Warrant shall be in writing and shall be delivered, or mailed by
registered or certified mail, return receipt requested, by a nationally
recognized overnight courier, postage prepaid, addressed (a) if to any
holder of any Call Warrant, at the registered address of such holder as
set forth in the register kept by the Warrant Agent or (b) if to the
Warrant Agent, to 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust or to such other address notice of which the
Warrant Agent shall have given to the holder hereof and the Trustee or (c)
if to the Trust or the Trustee, to the Corporate Trust Office (as set
forth in the Trust Agreement); provided that the exercise of any Call
Warrant shall be effective on the manner provided in Article I.
Section 6.4 Amendment. (a) This Call Warrant may be amended from time to time by
the Depositor, the Trustee and the Warrant Agent without the consent of
any holder hereof, upon receipt of an opinion of counsel satisfactory to
the Warrant Agent that the provisions hereof have been satisfied and that
such amendment would not alter the status of the Trust as a grantor trust
under the Code, for any of the following purposes: (i) to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or to provide
for any other terms or modify any other provisions with respect to matters
or questions arising under this Warrant which shall nor adversely affect
in any material respect the interests of the holder hereof or any holder
of a Certificate or (ii) to evidence and provide for the acceptance of
appointment hereunder of a Warrant Agent other than U.S. Bank Trust
National Association.
(b) Without limiting the generality of the foregoing, this Call Warrant may
also be modified or amended from time to time by the Depositor, the
Trustee and the Warrant Agent with the consent of the holders of 66-2/3%
of the Call Warrants, upon receipt of an opinion of counsel satisfactory
to the Warrant Agent that the provisions hereof (including, without
limitation, the following proviso) have seen satisfied, for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Call Warrant or of modifying in any manner the
rights of the holders of this Call Warrant; provided, however, that no
such amendment shall (i) adversely affect in any material respect the
interests of holders of Certificates without the consent of the holders of
Certificates evidencing nor less than the Required Percentage-Amendment of
the aggregate Voting Rights of such affected Certificates (as such terms
are defined in the Trust Agreement) and without written confirmation from
the Rating Agencies that such amendment will not result in a downgrading
or withdrawal of its rating of the Certificates; (ii) alter the dates on
which Call Warrants are exercisable or the amounts deliverable upon
exercise of a Warrant without the consent of the holders of Certificates
evidencing not less than 100% of the aggregate Voting Rights of such
affected Certificates and the holders of 100% of the affected Call
Warrants or (iii) reduce the percentage of aggregate Voting Rights
required by (i) or (ii) without the consent of the holders of all such
affected Certificates. Notwithstanding any other provision of this
38
Warrant, this Section 6.4(b) shall not be amended without the consent of
the holders of 100% of the affected Call Warrants.
(c) Promptly after the execution of any such amendment or modification, the
Warrant Agent shall furnish a copy of such amendment or modification to
each holder of a Call Warrant, to the Trustee and to the Rating Agencies.
It shall not be necessary for the consent of holders of Call Warrants or
Certificates under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and
of evidencing the authorization of the execution thereof shall be subject
to such reasonable regulations as the Warrant Agent may prescribe.
Section 6.5 Expiration. The right to exercise this Call Warrant shall expire on
the earliest to occur of (a) the cancellation hereof, (b) the termination
of the Trust Agreement or (c) the liquidation, disposition, or maturity of
all of the Certificates.
Section 6.6 Descriptive Headings. The headings in this Call Warrant are for
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 6.7 GOVERNING LAW. THIS CALL WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial proceeding
brought against the Trust, the Trustee or the Warrant Agent with respect
to this Call Warrant may be brought in any court of competent jurisdiction
in the County of New York, State of New York or of the United States of
America for the Southern District of New York and, by execution and
delivery of this Call Warrant, the Trustee on behalf of the Trust and the
Warrant Agent (a) accept, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court, and
irrevocably agree that the Trust, the Trustee and the Warrant Agent shall
be bound by any judgment rendered thereby in connection with this Call
Warrant, subject to any rights of appeal, and (b) irrevocably waive any
objection that the Trust or the Trustee, the Warrant Agent may now or
hereafter have as to the venue of any such suit, action or proceeding
brought in such a court or that such court is an inconvenient forum. Each
party hereto hereby waives, to the fullest extent permitted by law, any
right to a trial by jury in respect of any litigation arising directly or
indirectly out of, under or in connection with any of the transaction
documents or any of the transactions contemplated hereunder. Each party
hereto (a) certifies that no representative, agent or attorney of any
party hereto has represented, expressly or otherwise, that it would not,
in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it has been induced to enter into the transaction
documents to which it is a party by, among other things, this waiver.
39
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the holder of this
Call Warrant by its acceptance hereof, and (ii) the Warrant Agent agrees,
that it shall not (and, in the case of the holder, that it shall not
direct the Warrant Agent to), until the date which is one year and one day
after the payment in full of the Certificates and all other securities
issued by the Trust, the Depositor or entities formed, established or
settled by the Depositor, acquiesce, petition or otherwise invoke or cause
the Trust, the Depositor, or any such other entity to invoke the process
of the United States of America, any State or other political subdivision
thereof or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government for
the purpose of commencing or sustaining a case by or against the Trust,
the Depositor or any such other entity under a federal or state
bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Trust, the Depositor or any such other entity or all or
any part of the property or assets of Trust, the Depositor or any such
other entity or ordering the winding up or liquidation of the affairs of
the Trust, the Depositor or any such other entity.
40
Each of (i) the holder of this Call Warrant, by its
acceptance hereof, and (ii) the Warrant Agent agrees, that it shall not have any
recourse to the Certificates.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee and Authenticating Agent
By:_____________________________________
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:_____________________________________
Authorized Signatory
41
FORM OF SUBSCRIPTION
[To be executed only upon exercise of Call Warrants]
To: Corporate Backed Trust Certificates, Series 2001-37 Trust
U.S. Bank Trust National Association, as Trustee
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
The undersigned registered holder of the within Call
Warrant, having previously given notice thereof in accordance with the terms of
the Call Warrant, hereby irrevocably exercises Warrant(s) for, and purchases
pursuant thereto, the Certificates receivable upon such exercise, and herewith
makes payment of $[ ] per Call Warrant therefor, and requests that such
Certificates be transferred to __________ [insert information required for
transfer of Certificates]. In connection therewith, the undersigned hereby
certifies that it is solvent as of the date hereof, as required by Section 1.1
of the Call Warrant.
Dated:
(Signature must conform in all respects to name of holder
as specified on the face of Call Warrant)
(Street Address)
(City) (State) (Zip Code)
42
FORM OF ASSIGNMENT
[To be executed only upon transfer of Call Warrant]
For value received, the undersigned registered holder of
the within Call Warrant hereby sells, assigns and transfers unto ______ the
_______ Call Warrant(s) [Must be whole number] to purchase Certificates to which
such Call Warrant relates, and appoints Attorney to make such transfer on the
books of the Warrant Agent maintained for such purpose, with full power of
substitution in the premises.
Dated:
(Signature must conform in all respects to name of holder
as specified on the face of Warrant)
(Street Address)
(City State) (Zip Code)
Signed in the presence of:
43
EXHIBIT C
FORM OF WARRANT AGENT AGREEMENT
-------------------------------
WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
Federal Express Corporation Note-Backed Series 2001-37 TRUST
WARRANT AGENT AGREEMENT, dated as of December 27, 2001 (the "Warrant
Agent Agreement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as Warrant Agent (the
"Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Depositor created Corporate Backed Trust Certificates,
Federal Express Corporation Note-Backed Series 2001-37 Trust (the "Trust"), a
trust created under the laws of the State of New York pursuant to a Standard
Terms for Trust Agreements, dated as of January 16, 2001 (the "Agreement"),
between Xxxxxx ABS Corporation (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
2001-37, dated as of December 27, 2001 (the "Series Supplement" and, together
with the Agreement, the "Trust Agreement"), between the Depositor and the
Trustee; and
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 Certificates (the "Certificates") and related Call Warrants (the "Call
Warrants"), such Certificates evidencing undivided interests in 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. Definitions. Except as otherwise specified herein or as
the context may otherwise require, capitalized terms used herein but not defined
herein shall have the respective meanings set forth below for all purposes under
the Series Supplement.
ARTICLE I
Exercise of Call Warrants
Section 1.1 Manner of Exercise. (a) The Call Warrants may be
exercised by the holder thereof (each, a "Warrant Holder"), in whole or in part,
on any Call Date, set forth in a written notice (a "Call Notice") delivered to
the Warrant Agent and the Trustee at any time on or before the Business Day that
is at least 5 Business Days before such Call Date, by surrender of the Call
Warrants to the Warrant Agent at its office set forth in Section 6.3 hereof no
later than 10:00 a.m. (New York City time) on such Call Date; provided that such
holder shall have made payment to the Warrant Agent, by wire transfer or other
44
immediately available funds acceptable to the Warrant Agent, in the amount of
the applicable Call Price, in a manner such that funds are available to the
Warrant Agent no later than 10:00 a.m. (New York City time) on such Call Date,
and such holder shall thereupon be entitled to delivery of Certificates in a
Certificate Principal Amount equal to $10 per Call Warrant purchased hereunder
in accordance with this Article I (in each case subject to the provisions of
Section 7(b) of the Series Supplement); provided further that, in the case of a
call in part, the Call Warrants may only be exercised in lots of 100; provided
further that the Warrant Holder may not exercise the Call Warrants at any time
when such Warrant Holder is insolvent, and in connection therewith, such Warrant
Holder shall be required to certify that it is solvent at the time of exercise
settlement, by completing the Form of Subscription attached to the Call Warrants
and delivering such completed Form of Subscription to the Trustee on or prior to
the Call Date and deliver to the Trustee a form reasonably satisfactory to the
Trustee of the opinion and the solvency certificate required pursuant to Section
7(b)(iv) of the Series Supplement.
(b) Upon exercise of Call Warrants, any Warrant Holder other than the
Depositor or any Affiliate of the Depositor shall be entitled to delivery of the
Called Certificates. The "Called Certificates" shall be Certificates having a
Certificate Principal Amount equal to $10 per Call Warrant. Any Warrant Holder
which is the Depositor or any Affiliate of the Depositor shall receive the
proceeds of the sale of the Called Underlying Securities and shall not be
entitled to receive the related Called Certificates. "Called Underlying
Securities" are Underlying Securities which represent the same percentage of the
Underlying Securities as the Called Certificates represent of the Certificates.
(c) The Warrant Agent shall notify the Trustee immediately upon
receipt by the Warrant Agent of a Call Notice by the holder of the Call Warrants
and upon receipt of payment of the applicable Call Price from such holder
pursuant to clause (a) of this Section 1.1. The Warrant Agent shall transfer
each payment made by the holder thereof pursuant to clause (a) of this Section
1.1 to the Trustee in immediately available funds, for application pursuant to
the Trust Agreement on the applicable Call Date (and, pending such transfer,
shall hold each such payment for the benefit of the holder thereof in a
segregated trust account).
(d) A Call Notice by the holder of a Call Warrant does not impose any
obligations on a holder of a Call Warrant in any way to pay any Call Price. If,
by 10:00 a.m. (New York City time) on the Call Date, the holder of the Call
Warrant being exercised has not paid the Call Price, then such Call Notice shall
automatically expire and none of the holder of such Call Warrant, the Warrant
Agent and the Trustee shall have any obligations with respect to such Call
Notice by the holder of such Call Warrant. The expiration of a Call Notice by
the holder of this Call Warrant shall in no way affect a holder of a Call
Warrant's right to subsequently deliver a Call Notice which satisfies the terms
of the Trust Agreement.
Section 1.2 Transfer of Certificates. As soon as practicable after
each surrender of Call Warrants in whole or in part on the Call Date and upon
45
satisfaction of all other requirements described in the Call Warrants and in
Section 1.1 hereof, the Warrant Agent shall instruct the Trustee as follows:
(a) if Call Warrants are being exercised by any Warrant Holder other
than the Depositor or any Affiliate of the Depositor, to cause the Called
Certificates to reflect the holder's beneficial ownership of such Certificates,
or
(b) if the Call Warrants are being exercised by the Depositor or any
Affiliate of the Depositor, to cause the Called Underlying Securities to be sold
pursuant to Section 13 of the Series Supplement and to distribute the proceeds
of such sale to the Warrant Holder.
If such exercise is in part only, the Warrant Agent shall instruct
the Trustee to authenticate new Call Warrants of like tenor, representing the
outstanding Call Warrants of the Warrant Holder and the Warrant Agent shall
deliver such Call Warrants to the Warrant Holder.
Section 1.3 Cancellation and Destruction of Call Warrants. All Call
Warrants surrendered to the Warrant Agent for the purpose of exercise (in whole
or in part) pursuant to Section 1.1 and actually exercised, or for the purpose
of transfer or exchange pursuant to Article III, shall be cancelled by the
Warrant Agent, and no Call Warrant shall be issued in lieu thereof. The Warrant
Agent shall destroy all cancelled Call Warrants.
Section 1.4 No Rights as Holder of Certificates Conferred by Call
Warrants. Prior to the exercise thereof, the Call Warrants shall not entitle the
holder thereof to any of the rights of a holder of the Certificates, including,
without limitation, the right to receive the payment of any amount on or in
respect of the Certificates or to enforce any of the covenants of the Trust
Agreement.
ARTICLE II
Restrictions on Transfer
Section 2.1 Restrictive Legends. Except as otherwise permitted by
this Article II, each Call Warrant (including each Call Warrant issued upon the
transfer of any Call Warrant) shall be issued with a legend in substantially the
following form:
"This Call Warrant has not been registered under the Securities Act
of 1933, as amended, and may not be transferred, sold or otherwise disposed of
except while a registration under such Act is in effect or pursuant to an
exemption therefrom under such Act. The Call Warrant represented hereby may be
transferred only in compliance with the conditions specified in the Call
Warrants."
Section 2.2 Notice of Proposed Transfer. Prior to any transfer of any
Call Warrant or portion thereof, the holder thereof will give 5 Business Days
(or such lesser period acceptable to the Warrant Agent) prior written notice to
the Warrant Agent of such holder's intention to effect such transfer.
46
ARTICLE III
Registration and Transfer of Call Warrants, etc.
Section 3.1 Warrant Register; Ownership of Call Warrants. The Warrant
Agent will keep a register in which the Warrant Agent will provide for the
registration of Call Warrants and the registration of transfers of Call Warrants
representing whole numbers of Call Warrants. The Trustee and the Warrant Agent
may treat the Person in whose name any Call Warrant is registered on such
register so the owner thereof for all purposes, and the Trustee and the Warrant
Agent shall not be affected by any notice to the contrary.
Section 3.2 Transfer and Exchange of Call Warrants. Upon surrender of
any Call Warrant for registration of transfer or for exchange to the Warrant
Agent, the Warrant Agent shall (subject to compliance with Article II) execute
and deliver, and cause the Trustee, on behalf of the Trust, to execute and
deliver, in exchange therefor, a new Call Warrant of like tenor and evidencing a
like whole number of Call Warrants, in the name of such holder or as such holder
(upon payment by such holder of any applicable transfer taxes or government
charges) may direct; provided that as a condition precedent for transferring the
Call Warrants, the prospective transferee shall be required to deliver to the
Trustee and the Depositor an executed copy of the Investment Letter (set forth
as Exhibit A hereto).
Section 3.3 Replacement of Call Warrants Upon receipt of evidence
reasonably satisfactory to the Warrant Agent of the loss, theft, destruction or
mutilation of any Call Warrant and, in the case of any such loss, theft or
destruction of any Call Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Warrant Agent may determine, or, in the case of any
such mutilation, upon the surrender of such Call Warrant for cancellation to the
Warrant Agent, the Warrant Agent shall execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a new
Call Warrant of like tenor bearing a number not contemporaneously outstanding.
Section 3.4 Execution and Delivery of Call Warrants by Trustee. The
Trustee, on behalf of the Trust, hereby agrees (subject to compliance with
Article II) to execute and deliver such new Call Warrants issued in accordance
with Section 1.2 or this Article III as the Warrant Agent shall request in
accordance herewith.
ARTICLE IV
Definitions
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Business Day": As defined in the Trust Agreement.
47
"Call Date": Any day occurring on or after December 27, 2006, or
after the announcement of any redemption or other unscheduled payment of the
Certificates on which the Call Warrants are exercised and the proceeds of an
Optional Call (as defined in the Series Supplement) are distributed to the
Holders of the Certificates pursuant to Section 7 of the Series Supplement.
"Call Price": As defined in the Series Supplement.
"Call Warrant": As defined in the recitals.
"Closing Date": December 27, 2001.
"Depositor": As defined in the recitals.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. and any thereto.
"Responsible Officer": As defined in the Trust Agreement.
"Securities Act": The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Trust": As defined in the recitals.
"Trust Agreement": The Standard Terms for Trust Agreements, dated as
of January 16, 2001, between the Depositor and the Trustee, as supplemented by
the Series Supplement 2001-37, dated as of December 27, 2001, between the
Depositor and the Trustee, incorporating by reference the definitions and
assumptions thereto, as the same may be amended or modified from time to time.
"Trustee": As defined in the introduction to this Warrant, or any
successor thereto under the Trust Agreement.
"Warrant Agent": U.S. Bank Trust National Association, a national
banking association, in its capacity as warrant agent hereunder, or any
successor thereto.
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ARTICLE V
Warrant Agent
Section 5.1 Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of the Call
Warrants in reliance upon any instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document in good faith believed by it
to be genuine and to be signed, executed and, where necessary, verified and
acknowledged, by the proper Person or Persons.
Section 5.2 Duties of Warrant Agent. The Warrant Agent undertakes
only the specific duties and obligations imposed hereunder upon the following
terms and conditions, by all of which the Depositor, the Trust, the Trustee and
each holder of a Call Warrant shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may be
legal counsel for the Depositor), and the opinion of such counsel shall be full
and complete authorization and protection to the Warrant Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion,
provided the Warrant Agent shall have exercised reasonable care in the selection
by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the Warrant
Agent shall deem it necessary or desirable that any fact or matter be proved or
established by the Depositor or the Trustee prior to taking or suffering any
action hereunder, such fact or matter may be deemed to be conclusively proved
and established by a Depositor Order or a certificate signed by a Responsible
Officer of the Trustee and delivered to the Warrant Agent; and such certificate
shall be full authorization to the Warrant Agent for any action taken or
suffered in good faith by it hereunder in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only for its own
negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained herein or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Trust and the Depositor only.
(e) The Warrant Agent shall not have any responsibility in respect of
and makes no representation as to the validity of the Call Warrants or the
execution and delivery thereof (except the due execution hereof by the Warrant
Agent); nor shall it be responsible for any breach by the Trust of any covenant
or condition contained in the Call Warrants; nor shall it by any act thereunder
be deemed to make any representation or warranty as to the Certificates to be
purchased thereunder.
(f) The Warrant Agent is xxxxxx authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, Chief Financial Officer,
Chief Operating Officer, President, a Vice President, a Senior Vice President, a
Managing Director, its Treasurer, an Assistant Treasurer, its Secretary or an
49
Assistant Secretary of the Depositor, and any Responsible Officer of the
Trustee, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
(g) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Call Warrants
or other securities of the Trust or otherwise act as fully and freely as though
it were not Warrant Agent hereunder, so long as such persons do so in full
compliance with all applicable laws. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Trust, the Depositor or for any
other legal entity.
(h) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the Trust
hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into the Call Warrants against the
Warrant Agent, whose duties shall be determined solely by the express provisions
thereof. The Warrant Agent shall not be deemed to be a fiduciary.
(j) The Warrant Agent shall not be responsible for any failure on the
part of the Trustee to comply with any of its covenants and obligations
contained herein.
(k) The Warrant Agent shall not be under any obligation or duty to
institute, appear in or defend any action, suit or legal proceeding in respect
hereof, unless first indemnified to its satisfaction, but this provision shall
not affect the power of the Warrant Agent to take such action as the Warrant
Agent may consider proper, whether with or without such indemnity. The Warrant
Agent shall promptly notify the Depositor and the Trustee in writing of any
claim made or action, suit or proceeding instituted against it arising out of or
in connection with the Call Warrants.
(l) The Trustee will perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as may be required by the Warrant Agent in
order to enable it to carry out or perform its duties hereunder.
Section 5.3 Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties hereunder upon thirty (30) days notice in writing
mailed to the Depositor and the Trustee by registered or certified mail, and to
the holders of the Call Warrants by first-class mail at the expense of the
Depositor; provided that no such resignation or discharge shall become effective
until a successor Warrant Agent shall have been appointed hereunder. The
Depositor may remove the Warrant Agent or any successor Warrant Agent upon
thirty (30) days notice in writing, mailed to the Warrant Agent or successor
Warrant Agent, as the case may be, and to the holders of the Call Warrants by
50
first-class mail; provided further that no such removal shall become effective
until a successor Warrant Agent shall have been appointed hereunder. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Depositor shall promptly appoint a successor to the Warrant Agent,
which may be designated as an interim Warrant Agent. If an interim Warrant Agent
is designated, the Depositor shall then appoint a permanent successor to the
Warrant Agent, which may be the interim Warrant Agent. If the Depositor shall
fail to make such appointment of a permanent successor within a period of thirty
(30) days after such removal or within sixty (60) days after notification in
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by the holder of a Call Warrant, then the Warrant Agent or
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of such a successor. Any successor to the
Warrant Agent appointed hereunder must be rated in one on the four highest
rating categories by the Rating Agencies. Any entity which may be merged or
consolidated with or which shall otherwise succeed to substantially all of the
trust or agency business of the Warrant Agent shall be deemed to be the
successor Warrant Agent without any further action.
ARTICLE VI
Miscellaneous
Section 6.1 Remedies. The remedies at law of the holder of the Call
Warrants in the event of any default or threatened default by the Warrant Agent
in the performance of or compliance with any of the terms of the Call Warrants
are not and will not be adequate and, to the full extent permitted by law, such
terms may be specifically enforced by a decree for the specific performance of
any agreement contained herein or by an injunction against a violation of any of
the terms thereof or otherwise.
Section 6.2 Limitation on Liabilities of Holder. Nothing contained in
this Warrant Agent Agreement shall be construed as imposing any obligation on
the holder thereof to purchase any of the Certificates except in accordance with
the terms thereof.
Section 6.3 Notices. All notices and other communications under this
Warrant Agent Agreement shall be in writing and shall be delivered, or mailed by
registered or certified mail, return receipt requested, by a nationally
recognized overnight courier, postage prepaid, addressed (a) if to any holder of
any Call Warrants, at the registered address of such holder as set forth in the
register kept by the Warrant Agent or (b) if to the Warrant Agent, to 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust or to
such other address notice of which the Warrant Agent shall have given to the
holder thereof and the Trustee or (c) if to the Trust or the Trustee, to the
Corporate Trust Office (as set forth in the Trust Agreement); provided that the
exercise of any Call Warrants shall be effective on the manner provided in
Article I.
Section 6.4 Amendment. (a) This Warrant Agent Agreement may be
amended from time to time by the Depositor, the Trustee and the Warrant Agent
without the consent of any holder thereof, upon receipt of an opinion of counsel
satisfactory to the Warrant Agent that the provisions hereof have been satisfied
and that such amendment would not alter the status of the Trust as a grantor
51
trust under the Code, for any of the following purposes: (i) to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or to provide for any
other terms or modify any other provisions with respect to matters or questions
arising under the Call Warrant which shall nor adversely affect in any material
respect the interests of the holder thereof or any holder of a Certificate or
(ii) to evidence and provide for the acceptance of appointment hereunder of a
Warrant Agent other than U.S. Bank Trust National Association.
(b) Without limiting the generality of the foregoing, the Call
Warrants may also be modified or amended from time to time by the Depositor, the
Trustee and the Warrant Agent with the consent of the holders of 66-2/3% of each
class of the Call Warrants, upon receipt of an opinion of counsel satisfactory
to the Warrant Agent that the provisions hereof (including, without limitation,
the following proviso) have seen satisfied, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Call Warrants or of modifying in any manner the rights of the holders of the
Call Warrants; provided, however, that no such amendment shall (i) adversely
affect in any material respect the interests of holders of Certificates without
the consent of the holders of Certificates evidencing nor less than the Required
Percentage-Amendment of the aggregate Voting Rights of such affected
Certificates (as such terms are defined in the Trust Agreement) and without
written confirmation from the Rating Agencies that such amendment will not
result in a downgrading or withdrawal of its rating of the Certificates; (ii)
alter the dates on which Call Warrants are exercisable or the amounts payable
upon exercise of a Warrant without the consent of the holders of Certificates
evidencing not less than 100% of the aggregate Voting Rights of such affected
Certificates and the holders of 100% of the affected Call Warrants or (iii)
reduce the percentage of aggregate Voting Rights required by (i) or (ii) without
the consent of the holders of all such affected Certificates. Notwithstanding
any other provision of this Warrant, this Section 6.4(b) shall not be amended
without the consent of the holders of 100% of the affected Call Warrants.
(c) Promptly after the execution of any such amendment or
modification, the Warrant Agent shall furnish a copy of such amendment or
modification to each holder of a Call Warrant, to the Trustee and to the Rating
Agencies. It shall not be necessary for the consent of holders of Call Warrants
or Certificates under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof shall be subject to such reasonable
regulations as the Warrant Agent may prescribe.
Section 6.5 Expiration. The right to exercise the Call Warrants shall
expire on the earliest to occur of (a) the cancellation thereof, (b) the
termination of the Trust Agreement, (c) the liquidation, disposition, or
maturity of all of the Certificates, or (d) the occurrence of an Event of
Default under the Trust Agreement.
52
Section 6.6 Descriptive Headings. The headings in this Warrant Agent
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 6.7 GOVERNING LAW. THIS CALL WARRANT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial
proceeding brought against the Trust, the Trustee or the Warrant Agent with
respect to this Warrant Agent Agreement may be brought in any court of competent
jurisdiction in the County of New York, State of New York or of the United
States of America for the Southern District of New York and, by execution and
delivery of the Call Warrants, the Trustee on behalf of the Trust and the
Warrant Agent (a) accept, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court, and irrevocably
agree that the Trust, the Trustee and the Warrant Agent shall be bound by any
judgment rendered thereby in connection with this Warrant Agent Agreement or the
Call Warrants, subject to any rights of appeal, and (b) irrevocably waive any
objection that the Trust or the Trustee, the Warrant Agent may now or hereafter
have as to the venue of any such suit, action or proceeding brought in such a
court or that such court is an inconvenient forum.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the holder
of the Call Warrants by its acceptance thereof, and (ii) the Warrant Agent
agrees, that it shall not (and, in the case of the holder, that it shall not
direct the Warrant Agent to), until the date which is one year and one day after
the payment in full of the Certificates and all other securities issued by the
Trust, the Depositor or entities formed, established or settled by the
Depositor, acquiesce, petition or otherwise invoke or cause the Trust, the
Depositor, or any such other entity to invoke the process of the United States
of America, any State or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government for the purpose of commencing or
sustaining a case by or against the Trust, the Depositor or any such other
entity under a federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust, the Depositor or any such other entity or
all or any part of the property or assets of Trust, the Depositor or any such
other entity or ordering the winding up or liquidation of the affairs of the
Trust, the Depositor or any such other entity.
53
Each of (i) the holder of the Call Warrants, by its acceptance
thereof, and (ii) the Warrant Agent agrees, that it shall not have any recourse
to the Certificates.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee and Authenticating Agent
By:_____________________________________
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:_____________________________________
Authorized Signatory
XXXXXX ABS CORPORATION,
as Depositor
By:_____________________________________
Authorized Signatory
54
EXHIBIT A
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated:
U.S. Bank Trust National Association,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
as Initial Purchaser
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxxxxx ABS Corporation
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $___________
aggregate principal amount of Call Warrants (the "Call Warrants") representing
an interest in the Corporate Backed Trust Certificates Series 2001-37 Trust (the
"Trust"), the investor on whose behalf the undersigned is executing this letter
(the "Purchaser") confirms that:
(a) Reference is made to the Prospectus Supplement, dated December 17, 2001
(the "Prospectus Supplement"), with respect to the Certificates to which
the Call Warrants relate. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the
Prospectus Supplement. The Purchaser has received a copy of the Prospectus
Supplement and such other information as the Purchaser deems necessary in
order to make its investment decision and the Purchaser has been provided
the opportunity to ask questions of, and receive answers from, the
Depositor and the Underwriters, concerning the terms and conditions of the
Call Warrants. The Purchaser has received and understands the above, and
understands that substantial risks are involved in an investment in the
Call Warrants. The Purchaser represents that in making its investment
decision to acquire the Call Warrants, the Purchaser has not relied on
representations, warranties, opinions, projections, financial or other
information or analysis, if any, supplied to it by any person, including
you, the Depositor or the Trustee or any of your or their affiliates,
except as expressly contained in the Prospectus Supplement and in the
other written information, if any, discussed above. The Purchaser has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the Call
Warrants, and the Purchaser is able to bear the substantial economic risks
of such an investment. The Purchaser has relied upon its own tax, legal
and financial advisors in connection with its decision to purchase the
Call Warrants.
55
(b) The Purchaser is (A) a "Qualified Institutional Buyer" (as defined in Rule
144A under the Securities Act of 1933, as amended (the "1933 Act")) and
(B) acquiring the Call Warrants for its own account or for the account of
an investor of the type described in clause (A) above as to each of which
the Purchaser exercises sole investment discretion. The Purchaser is
purchasing the Call Warrants for investment purposes and not with a view
to, or for, the offer or sale in connection with, a public distribution or
in any other manner that would violate the 1933 Act or the securities or
blue sky laws of any state.
(c) The Purchaser understands that the Call Warrants have not been and will
not be registered under the 1933 Act or under the securities or blue sky
laws of any state, and that (i) if it decides to resell, pledge or
otherwise transfer any Call Warrant, such Call Warrant may be resold,
pledged or transferred without registration only to an entity that has
delivered to the Depositor and the Trustee a certification that it is a
Qualified Institutional Buyer that purchases (1) for its own account or
(2) for the account of such a Qualified Institutional Buyer, that is, in
either case, aware that the resale, pledge or transfer is being made in
reliance on said Rule 144A and (ii) it will, and each subsequent holder
will be required to, notify any purchaser of any Call Warrant from it of
the resale restrictions referred to in clause (i) above.
(d) The Purchaser understands that each of the Call Warrants will bear a
legend to the following effect, unless otherwise agreed by the Depositor
and the Trustee:
"THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN
EXEMPTION THEREFROM UNDER SUCH ACT. THIS CALL WARRANT
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED IN THIS CALL WARRANT."
(e) The Purchaser understands that no subsequent transfer of the Call Warrants
is permitted unless it causes its proposed transferee to provide to the
Depositor and the Initial Warrant Holder a letter substantially in the
form of Exhibit D-1 to the Series Supplement, as applicable, or such other
written statement as the Depositor shall prescribe.
(f) The Purchaser agrees that if at some time in the future it wishes to
transfer or exchange any of the Call Warrants, it will not transfer or
exchange any of the Call Warrants unless such transfer or exchange is in
accordance with Section 5.04 of the Trust Agreement. The Purchaser
understands that any purported transfer of the Call Warrants (or any
interest therein) in contravention of any of the restrictions and
conditions in the Trust Agreement, as applicable, shall be void, and the
56
purported transferee in such transfer shall not be recognized by the Trust
or any other Person as a Warrant Holder for any purpose.
57
You and the Trustee are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
----------------------------------
Name:
Title:
[Medallion Stamp to be affixed here]
58
EXHIBIT D
FORM OF INVESTMENT LETTER
(CALL WARRANTS)
QUALIFIED INSTITUTIONAL BUYER
Dated:
U.S. Bank Trust National Association,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
as Initial Purchaser
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxxxxx ABS Corporation
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $___________
aggregate principal amount of Call Warrants (the "Call Warrants") representing
an interest in the Corporate Backed Trust Certificates Federal Express
Corporation Note-Backed Series 2001-37 Trust (the "Trust"), the investor on
whose behalf the undersigned is executing this letter (the "Purchaser") confirms
that:
(i) Reference is made to the Prospectus Supplement, dated
December 17, 2001 (the "Prospectus Supplement"), with respect to the
Certificates to which the Call Warrants relate. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Prospectus Supplement. The Purchaser has received a copy of the Prospectus
Supplement and such other information as the Purchaser deems necessary in order
to make its investment decision and the Purchaser has been provided the
opportunity to ask questions of, and receive answers from, the Depositor and the
Underwriters, concerning the terms and conditions of the offering described in
the Prospectus Supplement. The Purchaser has received and understands the above,
and understands that substantial risks are involved in an investment in the Call
Warrants. The Purchaser represents that in making its investment decision to
acquire the Call Warrants, the Purchaser has not relied on representations,
warranties, opinions, projections, financial or other information or analysis,
if any, supplied to it by any person, including you, the Depositor or the
Trustee or any of your or their affiliates, except as expressly contained in the
Prospectus Supplement and in the other written information, if any, discussed
59
above. The Purchaser has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Call Warrants, and the Purchaser is able to bear the substantial economic
risks of such an investment. The Purchaser has relied upon its own tax, legal
and financial advisors in connection with its decision to purchase the Call
Warrants.
(ii) The Purchaser is (A) a "Qualified Institutional Buyer"
(as defined in Rule 144A under the Securities Act of 1933, as amended (the "1933
Act")) and (B) acquiring the Call Warrants for its own account or for the
account of an investor of the type described in clause (A) above as to each of
which the Purchaser exercises sole investment discretion. The Purchaser is
purchasing the Call Warrants for investment purposes and not with a view to, or
for, the offer or sale in connection with, a public distribution or in any other
manner that would violate the 1933 Act or the securities or blue sky laws of any
state.
(iii) The Purchaser understands that the Call Warrants have
not been and will not be registered under the 1933 Act or under the securities
or blue sky laws of any state, and that (i) if it decides to resell, pledge or
otherwise transfer any Call Warrant, such Call Warrant may be resold, pledged or
transferred without registration only to an entity that has delivered to the
Depositor and the Trustee a certification that it is a Qualified Institutional
Buyer that purchases (1) for its own account or (2) for the account of such a
Qualified Institutional Buyer, that is, in either case, aware that the resale,
pledge or transfer is being made in reliance on said Rule 144A and (ii) it will,
and each subsequent holder will be required to, notify any purchaser of any Call
Warrant from it of the resale restrictions referred to in clause (i) above.
(iv) The Purchaser understands that each of the Call
Warrants will bear a legend to the following effect, unless otherwise agreed by
the Depositor and the Trustee:
"THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN
EXEMPTION THEREFROM UNDER SUCH ACT. THIS CALL WARRANT
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED IN THIS CALL WARRANT."
(v) The Purchaser understands that no subsequent transfer
of the Call Warrants is permitted unless it causes its proposed transferee to
provide to the Depositor and the Initial Warrant Holder a letter substantially
in the form of this Exhibit D, as applicable, or such other written statement as
the Depositor shall prescribe.
60
(vi) The Purchaser agrees that if at some time in the
future it wishes to transfer or exchange any of the Call Warrants, it will not
transfer or exchange any of the Call Warrants unless such transfer or exchange
is in accordance with Section 5.04 of the Trust Agreement. The Purchaser
understands that any purported transfer of the Call Warrants (or any interest
therein) in contravention of any of the restrictions and conditions in the Trust
Agreement, as applicable, shall be void, and the purported transferee in such
transfer shall not be recognized by the Trust or any other Person as a
Warrantholder, as the case may, be for any purpose.
61
You and the Trustee are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
------------------------------------
Name:
Title:
[Medallion Stamp to be affixed here]
62
