SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
SERIES 2001-19 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of May 11, 2001
Table of Contents
Page
Section 1. Incorporation of Standard Terms...................................................................4
Section 2. Definitions.......................................................................................4
Section 3. Designation of Trust and Certificates............................................................10
Section 4. Trust Certificates...............................................................................11
Section 5. Distributions....................................................................................11
Section 6. Trustee's Fees...................................................................................13
Section 7. Optional Exchange; Optional Redemption...........................................................13
Section 8. Notices of Events of Default.....................................................................16
Section 9. Miscellaneous....................................................................................16
Section 10. Governing Law. ..................................................................................18
Section 11. Counterparts.....................................................................................18
Section 12. Termination of the Trust.........................................................................18
Section 13. Sale of Underlying Securities....................................................................19
Section 14. Amendments.......................................................................................19
Section 15. Voting of Underlying Securities, Modification of Indenture.......................................19
SCHEDULE I SERIES 2001-19 UNDERLYING SECURITIES SCHEDULE
SCHEDULE II CLASS A-2 CERTIFICATE CALL SCHEDULE
EXHIBIT A-1 FORM OF TRUST CERTIFICATE CLASS A-1
EXHIBIT A-2 FORM OF TRUST CERTIFICATE CLASS A-2
EXHIBIT B FORM OF WARRANT AGENT AGREEMENT
EXHIBIT C FORM OF INVESTMENT LETTER
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
Series 2001-19 TRUST
SERIES SUPPLEMENT, Series 2001-19, dated as of May 11, 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 into the Trust the Underlying
Securities set forth on Schedule I attached hereto (the "Underlying Securities
Schedule"), the general terms of which are described in the Prospectus
Supplement under the heading "Description of the Deposited Assets--Underlying
Securities;"
WHEREAS, in connection with the creation of the Trust and the deposit
therein of the Underlying Securities, it is desired to provide for the
issuance of trust certificates (the "Certificates") evidencing undivided
interests in the Trust; and
WHEREAS, the Trustee has joined in the execution of the Standard Terms
and this Series Supplement to evidence the acceptance by the Trustee of the
Trust;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants expressed herein, it is hereby agreed by and between the Depositor
and the Trustee as follows:
Section 1. Incorporation of Standard Terms. Except as otherwise provided
herein, all of the provisions of the Standard Terms are hereby incorporated
herein by reference in their entirety, and this Series Supplement and the
Standard Terms shall form a single agreement between the parties. In the event
of any inconsistency between the provisions of this Series Supplement and the
provisions of the Standard Terms, the provisions of this Series Supplement
will control with respect to the Series 2001-19 Certificates and the
transactions described herein.
Section 2. Definitions. (a) Except as otherwise specified herein or as
the context may otherwise require, the following terms shall have the
respective meanings set forth below for all purposes under this Series
Supplement. (Section 2(b) below sets forth terms listed in the Standard Terms
which are not applicable to this Series.) Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Standard Terms.
"Accreted Principal Amount" for the Class A-2 Certificates means for each
six-month period from and including each date specified in Schedule II hereof
to but excluding the next such date, the amount specified in Schedule II as
the "Ending Balance" for such beginning date.
"Available Funds" shall have the meaning specified in the Standard Terms,
except that proceeds of any redemption of the Underlying Securities shall be
included in Available Funds.
"Business Day" shall mean any day other than (i) Saturday and Sunday or
(ii) a day on which banking institutions in New York City, New York are
authorized or obligated by law or executive order to be closed for business or
(iii) a day that is not a business day for the purposes of the Indenture.
"Call Date" shall mean any Business Day occurring on or after May 11,
2006, or after the announcement of any unscheduled payment on 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 Price" shall mean, for each related Call Date, (i) in the case of
the Class A-1 Certificates, the principal amount of the Class A-1 Certificates
being purchased pursuant to the exercise of the Call Warrants, plus any
accrued and unpaid interest on such amount to but excluding the Call Date and
(ii) in the case of the Class A-2 Certificates being purchased pursuant to the
exercise of the Call Warrants, the Accreted Principal Amount of the Class A-2
Certificates.
"Call Request" shall have the meaning specified in Section 7(b) hereof.
"Call Warrants" shall have the meaning specified in Section 3 hereof.
"Certificate Account" shall have the meaning specified in the Standard
Terms.
"Certificates" shall have the meaning specified in Section 3(a) hereof.
"Class A-1 Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-1, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described in Section 3
hereof and in the Certificates.
"Class A-2 Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-2, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described in Section 3
hereof and in the Certificates.
"Closing Date" shall mean May 11, 2001.
"Collection Period" shall mean, (i) with respect to each December
Distribution Date, the period beginning on the day after the June Distribution
Date and ending on such December Distribution Date, inclusive and, (ii) with
respect to each June Distribution Date, the period beginning on the day after
the December Distribution Date of a given year and ending on the June
Distribution Date of the following year, inclusive; provided, however, that
clauses (i) and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank Trust
National Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
"Depository" shall mean The Depository Trust Company.
"Distribution Date" shall mean June 15 and December 15 of each year (or
if such date is not a Business Day, the next succeeding Business Day),
commencing on June 15, 2001 and ending on the earlier of the Final Scheduled
Distribution Date and any date on which Underlying Securities are redeemed
pursuant to the Indenture.
"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 a grace period of 30 days), (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 (subject to a grace period of 5 Business
Days) and (iii) any other event specified as an "Event of Default" in the
Indenture.
"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 December 15, 2029.
"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 May 11, 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 hereof.
"Optional Exchange" shall mean the exchange of the Certificates by the
Trust for the Underlying Securities, pursuant to Section 7 hereof.
"Optional Exchange Date" shall mean any Distribution Date on which
Underlying Securities subject to Optional Exchange are distributed to the
Depositor or any of its Affiliates, as a Certificateholder.
"Ordinary Expenses" shall mean the Trustee's ordinary expenses and
overhead in connection with its services as Trustee, including the items
referred to in the definition of Ordinary Expenses in the Standard Terms.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated May
2, 2001, relating to the Certificates.
"Purchase Default" shall have the meaning specified in Section 7(b)(vi)
hereof.
"Purchaser" shall have the meaning specified in Section 7(b)(vi) hereof.
"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 unless the subject amendment requires the vote of holders of only one
Class of Certificates pursuant to the Standard Terms, in which case 66-2/3% of
the Certificate Principal Amount of such Class.
"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 2001-19.
"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 $27,109,000 aggregate principal amount
of 8.30% Notes due December 15, 2029 issued by the Underlying Securities
Issuer, as set forth on Schedule I attached hereto (subject to Section 3(d)
hereof).
"Underlying Securities Issuer" shall mean Delta Air Lines, Inc.
"Underlying Securities Trustee" shall mean The Bank of New York.
"Underwriters" shall mean Xxxxxx Brothers Inc., an affiliate of the
Depositor, UBS Warburg LLC and J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
"Voting Rights" shall, in the entirety, be allocated among all Class A-1
Certificateholders and Class A-2 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, 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.
"Warrant Holder" shall mean the holder of a Call Warrant.
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Calculation Agent"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
"Cut-off Date"
"Eligible Expense"
"Eligible Investment"
"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"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Corporate Backed Trust Certificates, Series
2001-19 Trust." The Certificates evidencing certain undivided ownership
interests therein shall be known as "Corporate Backed Trust Certificates,
Series 2001-19." The Certificates shall consist of the Class A-1 Certificates
and the Class A-2 Certificates (together, the "Certificates"). 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 forms attached hereto as Exhibits A-1
and A-2. The Class A-1 Certificates shall be issued in denominations of $25.
The Class A-2 Certificates shall be issued in minimum denominations of
$500,000 and integral multiples of $1,000 in excess thereof. Except as
provided in the Standard Terms and in paragraph (d) in this Section, the Trust
shall not issue additional Certificates or incur any indebtedness.
(b) The Class A-1 Certificates have an initial aggregate certificate
principal amount ("Certificate Principal Amount") of $25,000,000. The Class
A-2 Certificates have an initial aggregate Certificate Principal Amount of
$2,109,000.
(c) The holders of the Class A-1 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 9.00% per
annum on the outstanding Certificate Principal Amount of the Class A-1
Certificates. The Class A-2 Certificates shall not bear interest. On June 15,
2001, the Trustee will pay the Depositor the amount of interest accrued and
paid on the Underlying Securities from December 15, 2000 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 Class A-1
Certificates in respect of accrued interest, of any proceeds from the recovery
on the Underlying Securities.
(d) The Depositor may sell to the Trustee additional Underlying
Securities on any date hereafter upon at least 3 Business Days notice to the
Trustee and upon (i) satisfaction of the Rating Agency Condition and (ii)
delivery of an Opinion of Counsel to the effect that the sale of such
additional Underlying Securities will not materially increase the likelihood
that the Trust would fail to qualify as a grantor trust under the Code. Upon
such sale to the Trustee, the Trustee shall deposit such additional Underlying
Securities in the Certificate Account, and shall authenticate and deliver to
the Depositor, or its order, Class A-1 Certificates and Class A-2 Certificates
in the same proportion as the original Class A-1 Certificates and Class A-2
Certificates, with an aggregate Certificate Principal Amount equal to the
principal amount of such additional Underlying Securities. Any such additional
Class A-1 Certificates and Class A-2 Certificates authenticated and delivered
shall have the same terms and rank pari passu with the original Class A-1
Certificates and Class A-2 Certificates, respectively, issued in accordance
with this Series Supplement.
(e) 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 in Exhibit C
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) Except as otherwise provided in Section
3(c), 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
(subject to Section 5(b) below):
(a) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee in accordance
with Section 6(b) below and approved by 100% of the
Certificateholders; and
(b) second, to the holders of the Class A-1 Certificates, as
interest at the rate of 9.00% per annum on the principal amount of
the Class A-1 Certificates.
(ii) the Trustee will pay the principal portion of Available Funds:
(a) first, to the Trustee, as reimbursement for any remaining
Extraordinary Trust Expenses incurred by the Trustee in accordance
with Section 6(b) below and approved by 100% of the
Certificateholders; and
(b) second, to the holders of the Class A-1 Certificates and
the Class A-2 Certificates, the remaining available principal
portion of Available Funds pro rata in the proportion that the
outstanding principal amount of the Class A-1 Certificates bears to
the outstanding principal amount of the Class A-2 Certificates.
(iii) any Available Funds remaining in the Certificate Account after the
payments set forth in clauses 5(a)(i) and 5(a)(ii) above shall be
paid to the Trustee as reasonable compensation for services rendered
to the Depositor, any remainder up to $1,000.
(iv) the Trustee will pay any Available Funds remaining in the
Certificate Account after the distributions in clauses 5(a)(i)
through 5(a)(iii) above to the holders of the Class A-1 Certificates
and Class A-2 Certificates pro rata in proportion to their original
principal balances.
(b) Notwithstanding any other provision hereof (other than Section
3(c)) if the Underlying Securities are redeemed, prepaid or liquidated in
whole or in part for any reason other than at their maturity, the Trustee
shall apply Available Funds in the following order of priority:
(i) first, to the Trustee, as reimbursement for any Extraordinary Trust
Expenses incurred by the Trustee in accordance with Section 6(b)
below and approved by 100% of the Certificateholders;
(ii) second, to the holders of the Class A-1 Certificates, an amount
equal to any accrued and unpaid interest thereon;
(iii) third, to the holders of the Class A-1 Certificates and Class A-2
Certificates, pro rata in the proportion that the outstanding
principal amount of the Class A-1 Certificates bears to the
outstanding principal amount of the Class A-2 Certificates;
(iv) fourth, to the Trustee, as reasonable compensation for services
rendered to the Depositor, any remainder up to $1,000; and
(v) fifth, to the holders of the Class A-1 Certificates and Class A-2
Certificates, any amount remaining after the distributions in
clauses 5(b)(i) through 5(b)(iv) above, pro rata in proportion to
their original principal balances.
(c) Unless otherwise instructed by holders of Certificates representing a
majority of the Voting Rights, thirty (30) days after giving notice of an
Event of Default pursuant to Section 8 hereof, the Trustee shall solicit bids
for the sale of the Underlying Securities with settlement thereof on or before
the third (3rd) Business Day after such sale from three leading dealers in the
relevant market. Any of the following dealers (or their successors) shall be
deemed to qualify as leading dealers: (1) Credit Suisse First Boston
Corporation, (2) Xxxxxxx, Xxxxx & Co., (3) Xxxxxx Brothers Inc., (4) Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (5) UBS Warburg LLC and (6)
Xxxxxxx Xxxxx Xxxxxx Inc. The Trustee shall not be responsible for the failure
to obtain a bid so long as it has made reasonable efforts to obtain bids. If a
bid for the sale of the Underlying Securities has been accepted by the Trustee
but the sale has failed to settle on the proposed settlement date, the Trustee
shall request new bids from such leading dealers. Promptly after any such sale
or any acceleration and a corresponding payment on the Underlying Securities,
the Trustee shall give notice to the Depository, 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 the Trustee shall, and the Trustee shall, distribute the proceeds
to the Certificateholders not later than two (2) Business Days after the
receipt of immediately available funds in accordance with Section 5(b) hereof.
(d) If the Trustee receives non-cash property in respect of the
Underlying Securities as a result of an Event of Default (including from the
sale thereof), the Trustee will promptly give notice to the Depository, 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 the Trustee shall, and the Trustee shall,
not later than 30 days after the receipt of such property, 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.
(e) 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 (or date referred to in
Section 5(f) hereof) on which sufficient funds are available to pay such
shortfall.
(f) If a payment with respect to the Underlying Securities is made to the
Trustee after the payment date of the Underlying Securities on which such
payment was due, then the Trustee will distribute any such amounts received on
the next occurring Business Day (a "Special Distribution Date") as if the
funds had constituted Available Funds on the Distribution Date immediately
preceding such Special Distribution Date; provided, however, that the Record
Date for such Special Distribution Date shall be five Business Days prior to
the day on which the related payment was received from the Underlying
Securities Trustee.
Section 6. Trustee's Fees. (a) As compensation for its services
hereunder, the Trustee shall be entitled to the Trustee Fee and any amount
payable under clause 5(a)(iii) or 5(b)(iv) above. 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 Trust Expenses shall not be paid out of the Trust
Property unless all the holders of each of the Class A-1 Certificates and
Class A-2 Certificates then outstanding have voted to require the Trustee to
incur such Extraordinary Trust Expenses. The Trustee may incur other
Extraordinary Trust 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
Trust Expenses are not approved unanimously as set forth in the first sentence
of this Section 6(b), such Extraordinary Trust Expenses shall not be an
obligation of the Trust, and the Trustee shall not file any claim against the
Trust therefor notwithstanding failure of Certificateholders to reimburse the
Trustee.
Section 7. Optional Exchange; Optional Redemption.
(a) (i) On each Distribution Date (or, if the Depositor or an Affiliate
of the Depositor holds all of the Certificates and the Call Warrants, on any
other date) the Depositor or any Affiliate of the Depositor, which is then the
holder of Class A-1 Certificates and Class A-2 Certificates which represent
equal percentages of all outstanding Class A-1 Certificates and Class A-2
Certificates, respectively and, except to the extent such Certificates were
acquired through the exercise of Call Warrants, Call Warrants related to such
Certificates, may tender such Certificates and the related Call Warrants to
the Trustee on such date and receive a distribution of Underlying Securities
representing the same percentage of the Underlying Securities as such
Certificates represent of all outstanding Certificates; provided, however, any
right to exchange shall be exercisable only (a) to the extent that the
Depositor provides upon the Trustee's request an opinion of counsel that such
exchange would not affect the characterization of the Trust as a "grantor
trust" for federal income tax purposes and (b) to the extent permitted under
Section 7(a)(iv) and Section 7(a)(vii) hereof.
(ii) Any such Affiliate of the Depositor must provide notice to the
Trustee (an "Exchange Request") no less than 5 days (or such
shorter period acceptable to the Trustee) but not more than 30 days
prior to an Optional Exchange Date that it requests an Optional
Exchange of Certificates on such Optional Exchange Date.
(iii) The Trustee shall not be obligated to determine whether an Optional
Exchange complies with the applicable provisions for exemption
under Rule 3a-7 of the Investment Company Act of 1940, as amended,
or the rules or regulations promulgated thereunder.
(iv) Any such Optional Exchange by any Affiliate of the Depositor will
be subject to the following restrictions: (a) certification to the
Trustee that any Certificates to be exchanged have been held for a
minimum of six months and (b) each Optional Exchange is limited in
amount to a maximum of 5% (except for Certificates acquired by the
Underwriter but never distributed to investors, in which case 25%)
of the then outstanding principal amount of the Certificates;
provided, however, that such restrictions shall not apply to the
exchange of Certificates that were acquired pursuant to Section
7(b).
(v) The provisions of Section 4.07 of the Standard Terms shall not
apply to an Optional Exchange pursuant to this Section. This
Section 7 shall not provide the Depositor with a lien against, an
interest in or a right to specific performance with respect to the
Underlying Securities.
(vi) A Warrant Holder may exchange Certificates called by it for pro
rata amounts of the Underlying Securities; provided, however, that
it complies with the conditions set forth in (a)(i) and (a)(ii)
above as though such Warrant Holder was an affiliate of the
Depositor.
(vii) Any right to exchange Certificates for a distribution of Underlying
Securities shall be exercisable only by a single holder of Class
A-1 Certificates and Class A-2 Certificates and related Call
Warrants, if applicable, which represent a like percentage of all
outstanding Class A-1 Certificates and Class A-2 Certificates,
respectively.
(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.
(ii) On any Call Date, each Class of Certificates may be called at the
applicable Call Price, in whole or in part, by the Warrant Holder
upon payment of the Call Price on or prior to such Call Date. Any
right to call Certificates shall be exercisable only by a single
holder of Call Warrants relating to the Class A-1 Certificates and
Call Warrants relating to the Class A-2 Certificates, which
represent like percentages of all outstanding Class A-1
Certificates and Class A-2 Certificates, respectively.
(iii) The Warrant Holder may provide notice to the Trustee (a "Call
Request") no less than 5 Business Days prior to any Call Date, that
it is exercising its Call Warrants with respect to the Certificates
on such Call Date. Unless otherwise specified in the Call Request,
the Call Request shall, to the extent that an Optional Exchange is
permitted under Section 7(a) hereof, be deemed to be notice of an
Optional Exchange.
(iv) Upon receipt of a Call Request, the Trustee shall provide a
conditional call notice to the Depository not less than 3 Business
Days prior to the applicable Call Date.
(v) 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.
(vi) Deliveries of the Certificates 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 the
receipt of the Call Price as aforesaid, the Trustee shall pay the
Call Price to the Certificateholders on the Call Date.
(vii) The Call Price with respect to each Class of Certificates in
respect of partial calls shall be allocated pro rata to the
Certificateholders of such Class.
(viii) 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.
(ix) 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.
(x) 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.
(xi) 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, of 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 Series 2001-19 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Series 2001-19 Certificates.
(c) The Trustee shall simultaneously forward reports to
Certificateholders pursuant to Section 4.03 of the Standard Terms and to the
New York Stock Exchange.
(d) Except as expressly provided herein, the Certificateholders shall not
be entitled to terminate the Trust or cause the sale or other disposition of
the Underlying Securities.
(e) The provisions of Section 3.07(d) of the Standard Terms shall not
apply to the Series 2001-19 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 Class A-1 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. Notwithstanding Section 3.05 of
the Standard Terms, funds on deposit in the Certificate Account shall not be
invested.
(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 Class A-1 Certificates and Class A-2 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 Exchange Act, in accordance with
the customary practices of the Depositor, need not contain any independent
reports.
(m) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee will have no recourse to the Underlying Securities.
(n) The Trust will not merge or consolidate with any other entity without
confirmation from each Rating Agency that such merger or consolidation will
not result in the qualification, reduction or withdrawal of its then-current
rating on the Certificates.
(o) Notices. All directions, demands and notices hereunder or under the
Standard Terms shall be in writing and shall be delivered as set forth below
(unless written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxx ABS Corporation
3 World Financial Center
New York, New York 10285
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS
PROVISIONS THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and
all such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon the
earliest to occur of (i) the payment in full at maturity or sale by the Trust
after a payment default or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call Warrants by the Warrant Holder; (iii) the
Final Scheduled Distribution Date; and (iv) the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof.
Section 13. Sale of Underlying Securities. In the event of a sale of the
Underlying Securities pursuant to Section 5(c) hereof, the Liquidation
Proceeds, if any, shall be deposited into the Certificate Account for
distribution pursuant to Section 5(b). The Trustee shall only deliver the
Underlying Securities to the purchaser of such Underlying Securities against
payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust Agreement
to the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall not enter into any amendment or
modification of the Trust Agreement which would adversely affect in any
material respect the interests of the holders of any Class of Certificates
without the consent of the holders of 100% of such Class of Certificates;
provided, however, that no such amendment or modification will be permitted
which would alter the status of the Trust as a grantor trust for federal
income tax purposes. Further, no amendment shall be permitted which would
adversely affect in any material respect the interests of any Class of
Certificateholders without confirmation by each Rating Agency that such
amendment will not result in a downgrading or withdrawal of its rating of such
Certificates.
Section 15. Voting of Underlying Securities, Modification of Indenture.
The Trustee, as holder of the Underlying Securities, has the right to vote and
give consents and waivers in respect of the Underlying Securities as permitted
by the Depository and except as otherwise limited by the Trust Agreement. In
the event that the Trustee receives a request from the Depository, the
Underlying Securities Trustee or the Underlying Securities Issuer for its
consent to any amendment, modification or waiver of the Underlying Securities,
the 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 amounts of the Certificates) as the
Certificates of the Trust were actually voted or not voted by the
Certificateholders thereof as of a date determined by the Trustee prior to the
date on which such consent or vote is required; provided, however, that,
notwithstanding anything in the Trust Agreement to the contrary, the Trustee
shall at no time vote on or consent to any matter (i) unless such vote or
consent would not (based on an opinion of counsel) alter the status of the
Trust as a grantor trust for federal income tax purposes or result in the
imposition of tax upon the Certificateholders, (ii) which would alter the
timing or amount of any payment on the Underlying Securities, including,
without limitation, any demand to accelerate the Underlying Securities, except
in the event of a default under the Underlying Securities or an event which
with the passage of time would become an event of default under the Underlying
Securities and with the unanimous consent of all outstanding Class A-1
Certificate holders and Class A-2 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 Class A-1
Certificates and 100% of the Class A-2 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 Class A-1
Certificateholders and Class A-2 Certificateholders of such offer promptly.
The Trustee must reject any such offer unless the Trustee is directed by the
affirmative vote of the holders of 100% of the Class A-1 Certificates and
Class A-2 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 Class A-1 Certificateholders and
Class A-2 Certificateholders, the Trustee shall vote the Underlying Securities
in favor of directing, or take such other action as may be appropriate to
direct, the Underlying Securities Trustee to declare the unpaid principal
amount of the Underlying Securities and any accrued and unpaid interest
thereon to be due and payable.
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 Series, 2001-19
Trust
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President and
Assistant Secretary
SCHEDULE I
SERIES 2001-19
UNDERLYING SECURITIES SCHEDULE
------------------------------
Underlying Securities: 8.30% Notes due December 15, 2029.
Underlying Securities Issuer: Delta Air Lines, Inc.
CUSIP Number: 000000XX0.
Principal Amount Deposited: $27,109,000.
Original Issue Date: December 14, 1999.
Principal Amount of Underlying
Securities Originally Issued: $1,000,000,000.
Maturity Date: December 15, 2029.
Principal Payment Date: December 15, 2029.
Interest Rate: 8.30% per annum.
Interest Payment Dates: June 15th and December 15th.
Underlying Securities Record Dates: The day immediately preceding each
Distribution Date.
SCHEDULE II
CLASS A-2 CERTIFICATE CALL SCHEDULE
Date Ending Balance Value
06/15/2001 $130,703
12/15/2001 $137,238
06/15/2002 $144,100
12/15/2002 $151,305
06/15/2003 $158,870
12/15/2003 $166,814
06/15/2004 $175,154
12/15/2004 $183,912
06/15/2005 $193,108
12/15/2005 $202,763
06/15/2006 $212,901
12/15/2006 $223,546
06/15/2007 $234,724
12/15/2007 $246,460
06/15/2008 $258,783
12/15/2008 $271,722
06/15/2009 $285,308
12/15/2009 $299,574
06/15/2010 $314,553
12/15/2010 $330,280
06/15/2011 $346,794
12/15/2011 $364,134
06/15/2012 $382,341
12/15/2012 $401,458
06/15/2013 $421,531
12/15/2013 $442,607
06/15/2014 $464,738
12/15/2014 $487,975
06/15/2015 $512,373
12/15/2015 $537,992
06/15/2016 $564,892
12/15/2016 $593,136
06/15/2017 $622,793
12/15/2017 $653,933
06/15/2018 $686,629
12/15/2018 $720,961
06/15/2019 $757,009
12/15/2019 $794,859
06/15/2020 $834,602
12/15/2020 $876,333
06/15/2021 $920,149
12/15/2021 $996,157
06/15/2022 $1,014,465
12/15/2022 $1,065,188
06/15/2023 $1,118,447
12/15/2023 $1,174,370
06/15/2024 $1,233,088
12/15/2024 $1,294,743
06/15/2025 $1,359,480
12/15/2025 $1,427,454
06/15/2026 $1,498,826
12/15/2026 $1,573,768
06/15/2027 $1,652,456
12/15/2027 $1,735,079
06/15/2028 $1,821,833
12/15/2028 $1,912,925
06/15/2029 $2,008,571
12/15/2029 --
EXHIBIT A-1
FORM OF TRUST CERTIFICATE CLASS A-1
-----------------------------------
NUMBER 1 1,000,000 $25 PAR CERTIFICATES
CUSIP NO. 21988G 74 2
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
1,000,000 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-19
9.00% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$27,109,000 aggregate principal amount of 8.30% Notes due December 15, 2029,
issued by Delta Air Lines, Inc. (the "Underlying Security Issuer") and all
payments received thereon (the "Trust Property"), deposited in trust by Xxxxxx
ABS Corporation (the "Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of $27,109,000
DOLLARS nonassessable, fully-paid, proportionate undivided beneficial
ownership interest in the Corporate Backed Trust Certificates, Series 2001-19
Trust, formed by the Depositor.
The Trust was created pursuant to a Standard Terms for Trust Agreements,
dated as of January 16, 2001 (the "Standard Terms"), between the Depositor and
U.S. Bank Trust National Association, a national banking association, not in
its individual capacity but solely as Trustee (the "Trustee"), as supplemented
by the Series Supplement, Series 2001-19, dated as of May 11, 2001 (the
"Series Supplement" and, together with the Standard Terms, the "Trust
Agreement"), between the Depositor and the Trustee. This Certificate does not
purport to summarize the Trust Agreement and reference is hereby made to the
Trust Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee with respect hereto. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office. Capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as
the "Corporate Backed Trust Certificates, Series 2001-19, Class A-1" (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 May
11, 2001 together with any proceeds thereof; and (iii) all funds from time to
time deposited with the Trustee relating to the Certificates, together with
any and all income, proceeds and payments with respect thereto; provided,
however, that any income from the investment of Trust funds in certain
permitted investments ("Eligible Investments") does not constitute Trust
Property.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by
the Trust Agreement shall have terminated in accordance therewith,
distributions will be made on each Distribution Date, to the Person in whose
name this Certificate is registered on the applicable Record Date, in an
amount equal to such Certificateholder's proportionate undivided beneficial
ownership interest in the amount required to be distributed to the Holders of
the Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding
such Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Trust, or join in any institution against the Trust of, any bankruptcy
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates or the Trust
Agreement.
Distributions made on this Certificate will be made as provided in the
Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES,
SERIES 2001-19 TRUST
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
not in its individual capacity but
solely as Trustee,
By:
-------------------------------
Authorized Signatory
Dated: May 11, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates, Series
2001-19, 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
(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 $25.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trustee in the Borough of Manhattan, the City of New York, duly endorsed
by or accompanied by an assignment in the form below and by such other
documents as required by the Trust Agreement, and thereupon one or more new
Certificates of the same class in authorized denominations evidencing the same
principal amount will be issued to the designated transferee or transferees.
The initial Certificate Registrar appointed under the Trust Agreement is U.S.
Bank Trust National Association.
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require exchange of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the Trust
created thereunder shall constitute a fixed investment trust for federal
income tax purposes under Treasury Regulation Section 301.7701-4, and 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 payment in full at maturity or sale by the Trust
after a payment default or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call Warrants by the Warrant Holder; (iii) the
Final Scheduled Distribution Date and (iv) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
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.
EXHIBIT A-2
FORM OF TRUST CERTIFICATE CLASS A-2
-----------------------------------
NUMBER 1 $2,109,000
CUSIP NO. 21988G AR 7
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-2 CERTIFICATE 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 CLASS A-2 CERTIFICATE
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE
SERIES SUPPLEMENT.
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
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-19
$2,109,000 PRINCIPAL AMOUNT
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$27,109,000 aggregate principal amount of 8.30% Notes due December 15, 2029 of
Delta Air Lines, Inc. (the "Underlying Security Issuer") and all payments
received thereon (the "Trust Property"), deposited in trust by Xxxxxx ABS
Corporation (the "Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of $2,109,000
DOLLARS nonassessable, fully-paid, proportionate undivided beneficial
ownership interest in the Corporate Backed Trust Certificates, Series 2001-19
Trust, formed by the Depositor.
The Trust was created pursuant to a Standard Terms for Trust Agreements,
dated as of January 16, 2001 (the "Standard Terms"), between the Depositor and
U.S. Bank Trust National Association, a national banking association, not in
its individual capacity but solely as Trustee (the "Trustee"), as supplemented
by the Series Supplement, Series 2001-19, dated as of May 11, 2001 (the
"Series Supplement" and, together with the Standard Terms, the "Trust
Agreement"), between the Depositor and the Trustee. This Certificate does not
purport to summarize the Trust Agreement and reference is hereby made to the
Trust Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee with respect hereto. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office. Capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as
the "Corporate Backed Trust Certificates, Series 2001-19, Class A-2" (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 May
11, 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, no
distributions of interest will be made on this Certificate on any Distribution
Date.
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, the Trust
will distribute on the Final Scheduled Distribution Date, to the Person in
whose name this Certificate is registered on the applicable Record Date, 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 Final Scheduled Distribution Date.
The Record Date applicable to the Final Scheduled Distribution Date is
the close of business on the day immediately preceding such Final Scheduled
Distribution Date (whether or not a Business Day). If a payment with respect
to the Underlying Securities is made to the Trustee after the date on which
such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Trust, or join in any institution against the Trust of, any bankruptcy
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates or the Trust
Agreement.
Distributions made on this Certificate will be made as provided in the
Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, SERIES 2001-19 TRUST
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
not in its individual capacity
but solely as Trustee,
By:
--------------------------
Authorized Signatory
Dated: May 11, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates, Series
2001-19, 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
(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-2 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 minimum
principal amounts of $500,000 and integral multiples of $1,000 in excess
thereof.
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 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 payment in full at maturity or sale by the Trust
after a payment default or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call Warrants by the Warrant Holder; (iii) the
Final Scheduled Distribution Date and (iv) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
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.
EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
Series 2001-19 TRUST
WARRANT AGENT AGREEMENT, dated as of May 11, 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,
Series 2001-19 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 2001-19, dated as of May
11, 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 trust certificates (the "Certificates") evidencing undivided
interests in the Trust and call warrants with respect to the Certificates
("Call Warrants").
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 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
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 $25 per Call Warrant in the case of
the Class A-1 Certificates and $1,000 per Call Warrant in the case of Class
A-2 Certificates, in each case, purchased hereunder in accordance with this
Article I; provided further that the Warrant Holder may only exercise Call
Warrants if it is simultaneously exercising Call Warrants relating to Class
A-1 Certificates and Call Warrants relating to Class A-2 Certificates which
represent a like percentage of all Class A-1 Certificates and Class A-2
Certificates, respectively; and 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, 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. Such notice of the exercise of a Call Warrant shall be
deemed to be notice of an Optional Exchange pursuant to Section 7(a) of the
Series Supplement.
(a) The Warrant Agent shall notify the Trustee immediately upon
receipt by the Warrant Agent of a 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).
(b) 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 the Call Warrants, in whole or in part on the Call Date and upon
satisfaction of all other requirements described in the Call Warrants and in
Section 1.1 hereof, the Warrant Agent shall instruct the Trustee to cause a
number of the Class A-1 Certificates and a number of Class A-2 Certificates,
in each case equal to the number of the related Call Warrants being exercised
thereunder to reflect the beneficial ownership of such Certificates and, in
case such exercise is in part only, new Call Warrants 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 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; Opinions of Counsel. 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.
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 as 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 C to the Series Supplement).
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:
"Accreted Principal Amount": for each six-month period from and including
each date specified in Schedule II to the Series Supplement to but excluding
the next such date, the amount specified in that Schedule II as the "Ending
Balance" for such beginning date.
"Business Day": As defined in the Trust Agreement.
"Call Date": Any Business Day on or after May 11, 2006 or after the
announcement of any redemption or other unscheduled payment or sale of the
Underlying Securities 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": for each related Call Date, (i) in the case of the Class
A-1 Certificates, the principal amount of the Class A-1 Certificates being
purchased pursuant to the exercise of the Call Warrants, plus any accrued and
unpaid interest on such amount to but excluding the Call Date and (ii) in the
case of the Class A-2 Certificates being purchased pursuant to the exercise of
the Call Warrants, the Accreted Principal Amount of the Class A-2
Certificates.
"Call Warrant": As defined in the recitals.
"Closing Date": May 11, 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 successor 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": As defined in the recitals.
"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.
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 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 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
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 of 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 in 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 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 not 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.
(a) 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 of the Call Warrants related to the Class A-1 Certificates and the
Call Warrants related to the Class A-2 Certificates, 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 not 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 terms 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.
(b) 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.
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, the Trustee or 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.
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: /s/ Xxxxxxx Xxxxx
---------------------------------------
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Authorized Signatory
EXHIBIT C
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 Warrant Holder
3 World Financial Center
New York, New York 10285
Xxxxxx ABS Corporation
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
In connection with our proposed purchase of ___________ Call Warrants
(the "Call Warrants") representing an interest in the Corporate Backed Trust
Certificates Series 2001-19 Trust (the "Trust"), the investor on whose behalf
the undersigned is executing this letter (the "Purchaser") confirms that:
(1) Reference is made to the Prospectus Supplement, dated May 2, 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.
(2) 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.
(3) 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.
(4) 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."
(5) 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 C to the Series Supplement, as applicable, or such other
written statement as the Depositor shall prescribe.
(6) 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 3.2 of the Warrant Agent 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
Warrant Holder.
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]
