Exhibit 6
SERIES SUPPLEMENT
CALLABLE ZERO COUPON TRUST CERTIFICATES
SERIES 2002-TVA-1
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CALLABLE ZERO COUPON TRUST CERTIFICATES
Dated as of March 25, 2002
TABLE OF CONTENTS
Page
----
Section 1. Incorporation of Standard Terms.......................................................................1
Section 2. Definitions...........................................................................................1
Section 3. Designation of Trust and Certificates.................................................................6
Section 4. Trust Certificates....................................................................................7
Section 5. Distributions.........................................................................................7
Section 6. Trustee's Fees........................................................................................8
Section 7. Optional Call; Optional Exchange......................................................................8
Section 8. Redemption of Unsold Certificates....................................................................11
Section 9. Notices of Events of Default.........................................................................11
Section 10. Miscellaneous.......................................................................................12
Section 11. Notices.............................................................................................13
Section 12. Governing Law.......................................................................................14
Section 13. Counterparts........................................................................................14
Section 14. Termination of the Trust............................................................................14
Section 15. Sale of Underlying Securities; Optional Exchange....................................................14
Section 16. Amendments..........................................................................................15
Section 17. Voting of Underlying Securities, Modification of Resolution.........................................15
Section 18. Additional Depositor Representation.................................................................16
SCHEDULE I SERIES 2002-TVA-1 UNDERLYING SECURITIES SCHEDULE
SCHEDULE II CALL SCHEDULE
EXHIBIT A FORM OF TRUST CERTIFICATE
EXHIBIT B FORM OF WARRANT AGENT AGREEMENT
EXHIBIT C FORM OF INVESTMENT LETTER
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SERIES SUPPLEMENT
CALLABLE ZERO COUPON TRUST CERTIFICATES
Series 2002-TVA-1
SERIES SUPPLEMENT, Series 2002-TVA-1, dated as of March 25,
2002 (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"; and 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 evidencing undivided interests in the Trust
and call warrants related thereto; 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 2002-TVA-1
Certificates and the transactions described herein.
Section 2. Definitions.
(a) Except as otherwise specified herein or as the context may
otherwise require, the following terms shall have the respective meanings set
forth below for all purposes under this Series Supplement. (Section 2(b) below
sets forth terms listed in the Standard Terms which are
not applicable to this Series.) Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Standard Terms.
"Available Funds" shall have the meaning specified in the
Standard Terms.
"Bonds" shall have the meaning specified in Schedule I
hereto.
"Business Day" shall mean any day other than (i) Saturday
and Sunday or (ii) a day on which banking institutions in New York City, New
York are authorized or obligated by law or executive order to be closed for
business or (iii) a day that is not a business day for the purposes of the
Underlying Securities or the basic resolution or any supplemental resolution
relating to the Underlying Securities.
"Call Date" shall mean any May 1st or November 1st on or
after May 1, 2006.
"Call Notice" shall have the meaning specified in Section
1.1 of the Warrant Agent Agreement.
"Call Price" shall mean, for each related Call Date, the
amount (or portion thereof, in the case of a partial call) set forth in
Schedule II hereof for such Call Date.
"Call Warrants" shall have the meaning specified in Section
3 hereof.
"Called Certificates" shall have the meaning specified in
Section 1.1 (b) of the Warrant Agent Agreement.
"Certificates" shall have the meaning specified in Section 3
hereof.
"Closing Date" shall mean March 25, 2002.
"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, its
nominees and their respective successors.
"Distribution Date" shall mean the Scheduled Distribution
Date or on any earlier date in connection with a partial or full redemption of
the Certificates pursuant to an Optional Call.
"Event of Default" shall mean (i) a default in the payment
of any interest on any Bonds after the same becomes due and payable (subject
to any applicable grace period), and (ii) a default in the payment of the
principal of or any installment of principal of any Underlying Security when
the same becomes due and payable, and (iii) any other event specified as an
event of default in the basic resolution or any supplemental resolution
relating to the Underlying Securities.
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"Exchange Act" shall mean the Securities and Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Liquidation Price" shall mean the price at which the
Trustee sells the Underlying Securities.
"Maturity Date" shall have the meaning specified in Schedule
I hereto.
"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(d) hereof.
"Optional Exchange" shall mean the exchange of the
Certificates by the Trust for the Underlying Securities pursuant to Section
7(a) hereof.
"Optional Exchange Date" shall mean any date on which
Underlying Securities subject to Optional Exchange are distributed to a
Certificateholder.
"Ordinary Expenses" shall mean the Trustee's ordinary
expenses and overhead in connection with its services as Trustee including the
items referred to in the definition of Ordinary Expenses in the Standard
Terms.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus
Supplement, dated March 20, 2002, relating to the Certificates.
"Rating Agency" shall mean Xxxxx'x Investors Service, Inc.
"Record Date" shall mean, with respect to each Distribution
Date, the day immediately preceding the related Distribution Date.
"Required Percentage--Amendment" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage--Direction of Trustee" shall be 66-2/3%
of the aggregate Voting Rights.
"Required Percentage--Remedies" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage--Removal" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Rating" shall mean the rating assigned to the
Bonds by the Rating Agency as of the Closing Date.
"Scheduled Distribution Date" shall mean November 1, 2025,
or, if such day is not a Business Day, the next succeeding Business Day.
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"Series" shall mean Series 2002-TVA-1.
"Special Distribution Date" shall have the meaning specified
in Section 5 hereof.
"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 strips representing the
principal amount payable upon maturity of $500,000,000 Tennessee Valley
Authority 6 3/4% Global Power Bonds 1995 Series E due November 1, 2025, issued
by the Underlying Securities Issuer, as set forth in Schedule I hereto
(subject to Section 3(d) hereof).
"Underlying Securities Issuer" shall mean the Tennessee
Valley Authority.
"Underwriter" shall mean Xxxxxx Brothers Inc.
"Voting Rights" shall, in the entirety, be allocated among
all Certificateholders in proportion to the then unpaid principal amounts of
their respective Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust
National Association.
"Warrant Agent Agreement" shall mean that certain Warrant
Agent Agreement, 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"
"Class"
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"Collection Period"
"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"
"Initial Accrued Interest"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Interest"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
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"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Callable Zero Coupon Trust, Series 2002-TVA-1".
The Certificates evidencing certain undivided ownership interests therein
shall be known as "Callable Zero Coupon Trust Certificates, Series
2002-TVA-1". The Trust is also issuing call warrants with respect to the
Certificates ("Call Warrants").
(a) The Certificates shall be held through the Depository in
book-entry form and shall be substantially in the form attached hereto as
Exhibit A. The Certificates shall be issued in minimum notional denominations
of $1,000 and integral multiples of $1,000 in excess thereof. Except as
provided in the Standard Terms and in paragraph (c) in this Section, the Trust
shall not issue additional Certificates or additional Call Warrants or incur
any indebtedness.
(b) The Certificates have an initial aggregate certificate principal
amount (the "Certificate Principal Amount") of $500,000,000.
The holders of the Certificates will be entitled to receive
to the extent received on the Underlying Securities, a distribution of
principal on the Scheduled Distribution Date, subject to the rights of the
holders of the Call Warrants.
(c) 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 cause the Trust to be taxed as an
association or publicly traded partnership taxable as a corporation for
federal income tax purposes. Each condition to be satisfied with respect to a
sale of Underlying Securities on or prior to the Closing Date shall be
satisfied with respect to a sale of additional Underlying Securities no later
than the
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date of sale thereof, each representation and warranty set forth in
the Standard Terms to be made on the Closing Date shall be made on such date
of sale, and from and after such date of sale, all Underlying Securities held
by the Trustee shall be held on the same terms and conditions. Upon such sale
to the Trustee, the Trustee shall deposit such additional Underlying
Securities in the Certificate Account, and shall authenticate and deliver to
the Depositor, on its order, Certificates in a Certificate Principal Amount,
and the Call Warrants related thereto.
(d) As a condition precedent for transferring the Call Warrants, the
prospective transferee shall be required to deliver to the Trustee and the
Depositor an executed copy of the Investment Letter (set forth in Exhibit C
hereto).
Section 4. Trust Certificates. The Trustee hereby acknowledges
receipt, on or prior to the Closing Date, of:
(a) the Underlying Securities set forth on Schedule I hereto; and
(b) all documents required to be delivered to the Trustee
pursuant to Section 2.01 of the Standard Terms.
Section 5. Distributions.
(a) On each Distribution Date, the Trustee shall apply Available
Funds in the Certificate Account as follows:
(i) first, to the Trustee, reimbursement for any
Extraordinary Expenses incurred by the Trustee pursuant
to the instructions of all of the holders of the
Certificates; and
(ii) second, the remainder to the Certificateholders.
(b) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part due to the occurrence of
an Underlying Securities Event of Default, the Trustee shall apply Available
Funds as follows:
(i) first, to the Trustee, as reimbursement for any
Extraordinary Expenses incurred by the Trustee in
accordance with Section 6(b) below and approved by 100%
of the Certificateholders; and
(ii) second, pro rata to the Certificateholders.
(c) Unless otherwise instructed by holders of Certificates
representing a majority of the Voting Rights, thirty (30) days after giving
notice pursuant to Section 8 hereof, the Trustee shall sell the Underlying
Securities pursuant to Section 13 hereof and deposit the Liquidation Proceeds,
if any, into the Certificate Account for distribution not later than two (2)
Business Days after the receipt of immediately available funds in accordance
with Section 5(a) hereof provided, however, that if any Warrant Holder
designates the proposed sale date as a Call Date and Optional Exchange Date
pursuant to Section 7, the portion of Underlying Securities related
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to such Optional Exchange shall not be sold but shall be distributed to the
Warrant Holder pursuant to Section 7 and the Warrant Agent Agreement.
(d) If the Trustee receives non-cash property in respect of the
Underlying Securities as a result of a payment default on the Underlying
Securities (including from the sale thereof), the Trustee will promptly give
notice to the 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 and to the Warrant Agent. 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 (after deducting
the costs incurred in connection therewith) in accordance with Section 5(a)
hereof. 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, based on the market value
of such property as of the date of distribution to Certificateholders, will be
deemed to reduce the Certificate Principal Amount of Certificates on a
dollar-for-dollar basis.
(e) If a payment with respect to the Underlying Securities is made to
the Trustee in connection with redemption, prepayment or liquidation, in whole
or in part, of the Underlying Securities for any reason other than due to the
occurrence of an Event of Default or at their maturity, the Trustee will
distribute any such amounts received in accordance with Section 5(a) 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 one Business Day prior to the day on
which the related payment was received from the Underlying Securities.
Section 6. Trustee's Fees.
(a) As compensation for its services hereunder, the Trustee
shall be entitled to the Trustee Fee. The Trustee Fee shall be paid by the
Depositor and not from Trust Property. The Trustee shall bear all Ordinary
Expenses. Failure by the Depositor to pay such amount shall not entitle the
Trustee to any payment or reimbursement from the Trust, nor shall such failure
release the Trustee from the duties it is required to perform under the Trust
Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust
Property unless all the holders of the Certificates then outstanding have
directed the Trustee to incur such Extraordinary Expenses. The Trustee may
incur other Extraordinary Expenses if any lesser percentage of the
Certificateholders requesting such action pursuant hereto reimburse the
Trustee for the cost thereof from their own funds in advance. If Extraordinary
Expenses are not approved unanimously as set forth in the first sentence of
this Section 6(b), such Extraordinary Expenses shall not be an obligation of
the Trust, and the Trustee shall not file any claim against the Trust therefor
notwithstanding failure of Certificateholders to reimburse the Trustee.
Section 7. Optional Call; Optional Exchange.
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(a) On any Distribution Date, any holder of Certificates and the
related Call Warrants, if Call Warrants related to such Certificates are
outstanding, may exchange such Certificates and, if applicable, Call Warrants,
for a distribution of Underlying Securities representing the same percentage
of the Underlying Securities as such Certificates represent of all outstanding
Certificates. On any Call Date, any Warrant Holder may exchange Called
Certificates for a distribution of Underlying Securities representing the same
percentage of Underlying Securities as such Called Certificates represent of
all outstanding Certificates; provided that any such exchange shall either (x)
result from an exercise of all Call Warrants owned by such Warrant Holder or
(y) occur on a Call Date on which such Warrant Holder, alone or together with
one or more other Warrant Holders, shall exchange Called Certificates relating
to Underlying Securities having an aggregate principal amount equal to or in
excess of the product of (i) 0.1 and (ii) the aggregate principal amount of
the Underlying Securities deposited into the Trust on the Closing Date.
(b) The following conditions shall apply to any Optional Exchange.
(i) A notice specifying the number of Certificates
being surrendered and the Optional Exchange Date
shall be delivered to the Trustee no less than 5
days (or such shorter period acceptable to the
Trustee) but not more than 30 days before the
Optional Exchange Date; provided that for an
Optional Exchange to occur on a Call Date, unless
otherwise specified therein, the Call Notice shall
be deemed to be the notice required hereunder.
(ii) Certificates and, if applicable, the Call Warrants,
shall be surrendered to the Trustee no later than
10:00 a.m. (New York City time) on the Optional
Exchange Date; provided that for an Optional
Exchange to occur on a Call Date, payment of the
Call Price to the Warrant Agent pursuant to Section
1.1(a)(iii) of the Warrant Agent Agreement shall
satisfy the requirement to surrender Certificates.
(iii) The Trustee shall have received an opinion of
counsel stating that the Optional Exchange would
not cause the Trust to be treated as an association
or publicly traded partnership taxable as a
corporation for federal income tax purposes.
(iv) If the Certificateholder is the Depositor or any
Affiliate of the Depositor, (1) the Trustee shall
have received a certification from the
Certificateholder that any Certificates being
surrendered have been held for at least six months,
and (2) the Certificates being surrendered may
represent no more than 5% (or 25% in the case of
Certificates acquired by the Underwriters but never
distributed to investors) of the then outstanding
Certificates.
(v) 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.
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(vi) The provisions of Section 4.07 of the Standard
Terms shall not apply to an Optional Exchange
pursuant to this Section 7(b). This Section 7(b)
shall not provide any person with a lien against,
an interest in or a right to specific performance
with respect to the Underlying Securities; provided
that satisfaction of the conditions set forth in
this Section 7(a) shall entitle the Certificateholder or
Warrant Holder, as applicable, to a distribution thereof.
(c) 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.
(d) Call Warrants may be exercised by the Warrant Holder in whole or
in part on any Call Date. In addition to the conditions set forth in Section
1.1 of the Warrant Agent Agreement, the following conditions shall apply to
any Optional Call.
(i) An opinion of counsel to the Warrant Holder shall
have been delivered to the Rating Agency, in form
satisfactory to the Rating Agency, 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.
(ii) The Warrant Holder shall have provided a certificate of
solvency to the Trustee.
(iii) Upon receipt of a Call Notice, the Trustee shall
provide a conditional call notice to the Depository
not less than 3 Business Days prior to the Call
Date.
(iv) Delivery of a Call Notice does not give rise to an
obligation on the part of the Warrant Holder to pay
the Call Price. If, by 10:00 a.m. (New York City
time) on the Call Date, the Warrant Holder has not
paid the Call Price, then the Call Notice shall
automatically expire and none of the Warrant
Holder, the Warrant Agent or the Trustee shall have
any obligation with respect to the Call Notice. The
expiration of a Call Notice shall in no way affect
the Warrant Xxxxxx's right to deliver a Call Notice
at a later date.
(v) If less than all the Certificates shall be called,
the Trustee shall select the particular Certificates to
be called, pro rata, by lot, or in such other method as
the Trustee shall deem fair and appropriate. Subject to
receipt of the Call Price, the Trustee shall pay the
Call Price to the relevant Certificateholders on the Call
Date.
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(vi) The Trustee shall not consent to any amendment or
modification of this Agreement (including the Standard
Terms) which would adversely affect the Warrant Holders
(including, without limitation, any alteration of the
timing or amount of any payment of the Call Price or any
other provision of this Agreement in a manner adverse to
the Warrant Holders) without the prior written consent of
100% of the Warrant Holders. For purposes of this
clause, no amendment, modification or supplement required
to provide for any purchase by the Trustee of additional
Underlying Securities and authentication and delivery by
the Trustee of additional certificates and call warrants
pursuant to Section 3(d) shall be deemed to adversely
affect the Warrant Holders.
(vii) The Trustee shall not be obligated to determine whether
an Optional Call complies with the applicable provisions
for exemption under Rule 3a-7 of the Investment Company
Act of 1940, as amended, or the rules or regulations
promulgated thereunder.
(e) 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.
(f) The rights of the Certificateholders under the Trust Agreement
and the Certificates are limited by the terms, provisions and conditions of
the Trust Agreement, the Warrant Agent Agreement and the Call Warrants with
respect to the exercise of the Call Warrants by the Warrant Holder. The
Certificateholders, by their acceptance of Certificates, covenant and agree to
tender any and all Called Certificates to the Trustee upon the Warrant
Holder's exercise of Call Warrants and payment of the Call Price for such
Certificates in accordance with the provisions hereof and of the Warrant Agent
Agreement.
Section 8. Redemption of Unsold Certificates
On June 25, 2002, the Certificate Register shall provide
notice to the Trustee and the Depositor specifying those Certificates which
are registered in the name of the Underwriter, the Depositor or any of their
affiliates and have not been held by third parties. The Trustee shall then
redeem such Certificates for a proportional amount of Underlying Securities;
provided that any Certificates identified by the Underwriter as being held for
the benefit of third parties shall not be redeemed pursuant to this Section 8.
In the case that any Certificates are redeemed pursuant to this Section 8, the
related Call Warrants will be redeemed simultaneously to the redemption of
such Certificates.
Section 9. Notices of Events of Default.
As promptly as practicable after, and in any event within 30
days after, the occurrence of any Event of Default actually known to the
Trustee, the Trustee shall give notice of such Event of Default to the
Depository, or, if any Certificates are not then held by DTC or any other
depository, directly to the registered holders of such Certificates, and to
the Warrant Agent. However, except in the case of an Event of Default relating
to the payment of principal
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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 10. Miscellaneous.
(a) The provisions of Section 3.04, Liquidation of Underlying
Securities, of the Standard Terms shall not apply to the Series 2002-TVA-1
Certificates in the case of an Optional Redemption pursuant to Section 7
hereof.
(b) The provisions of Section 4.04, Advances, of the Standard Terms
shall not apply to the Series 2002-TVA-1 Certificates.
(c) The provisions of Section 4.07, Optional Exchange, of the
Standard Terms shall not apply to the Series 2002-TVA-1 Certificates.
(d) The Trustee shall simultaneously forward reports to Holders of
the Certificates pursuant to Section 4.03 of the Standard Terms and to the New
York Stock Exchange.
(e) 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, if and for so long as the Call Warrants remains
outstanding, without the consent of the Warrant Holder.
(f) The provisions of Section 3.07(d) of the Standard Terms shall not
apply to the Series 2002-TVA-1 Certificates.
(g) In any conflict between the provisions of the Prospectus
Supplement and this Agreement (including the Standard Terms), the provisions
of the Prospectus Supplement shall prevail. Any affirmative statement of
rights or obligations of Holders of the Certificates or the parties hereto
included in the Prospectus Supplement shall be deemed to be included herein.
(h) In any conflict between the provisions of this Series Supplement
and the Standard Terms, the provisions of this Series Supplement shall
control.
(i) The outstanding principal balance of the Certificates shall not
be reduced by the amount of any Realized Losses (as defined in the Standard
Terms).
(j) 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 the Call Warrants,
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 and the Call Warrants 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.
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(k) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee may be removed upon 60 days prior written notice delivered by the
Certificateholders representing the Required Percentage--Removal.
(l) 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.
(m) Notwithstanding anything in the Standard Terms to the contrary,
the Trustee, upon written direction by the Depositor, will execute the
Certificates.
(n) 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.
(o) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee will have no recourse to the Underlying Securities.
(p) 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.
Section 11. Notices. All directions, demands and notices hereunder or
under the Standard Terms shall be in writing and shall be delivered as set
forth below (unless written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee or the Warrant Agent, 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 Agency, to:
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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
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
Copies of all directions, demands and notices required to be
given to the Certificateholders hereunder or under the Standard Terms will
also be given to the Warrant Agent in writing as set forth in this Section 11.
Section 12. 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 13. 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 14. 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
Certificateholders; (ii) the exercise of all outstanding Call Warrants by the
Warrant Holder; (iii) the 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 15. Sale of Underlying Securities; Optional Exchange. In the
event of a sale of the Underlying Securities pursuant to Section 5(e) hereof
or pursuant to the instructions of the Warrant Agent under Section 1.2 of the
Warrant Agent Agreement, the Trustee shall solicit bids for the sale of the
Underlying Securities with settlement thereof on or before the third (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) Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
(4) UBS Warburg LLC, (5) Xxxxxxx Xxxxx Xxxxxx Inc., and (6) except in the case
of a sale related to the exercise of Call Warrants by the Depositor or any
Affiliate
14
thereof, Xxxxxx Brothers 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
to the Certificateholders. In the event of an Optional Exchange, the Trustee
shall only deliver the Underlying Securities to the purchaser of such
Underlying Securities or sell the Underlying Securities pursuant to this
Section 13, as the case may be, against payment in same day funds deposited
into the Certificate Account.
Section 16. 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 Certificateholders without
the consent of 100% of the Certificateholders; provided, however, that no such
amendment or modification will be permitted which would cause the Trust to be
taxed as an association or publicly traded partnership taxable as a
corporation for federal income tax purposes. Further, no amendment shall be
permitted which would adversely affect in any material respect the interests
of any Certificateholders without confirmation by each Rating Agency that such
amendment will not result in a downgrading or withdrawal of its rating of the
Certificates.
Section 17. Voting of Underlying Securities, Modification of
Resolution.
(a) 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 resolution relating to the Underlying Securities 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 Certificate
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) cause the Trust to be taxed as an association or publicly traded
partnership taxable as a corporation under the Code, (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 holders of all outstanding
Certificates and all Warrant Holders, 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
15
default under the resolution relating to the Underlying Securities and only
with the consent of 100% of the Certificateholders and 100% of the Warrant
Holders. 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.
(b) In the event that an offer is made by the Underlying Securities
Issuer to issue new obligations in exchange and substitution for any of the
Underlying Securities, pursuant to a plan for the refunding or refinancing of
the outstanding Underlying Securities or any other offer is made for the
Underlying Securities, the Trustee shall notify the Certificateholders and the
Warrant Holders of such offer promptly. The Trustee must reject any such offer
unless the Trustee is directed by the affirmative vote of the 100% of the
Certificateholders and 100% of the Call Warrants 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 Agency.
(c) If an event of default under the resolution relating to the
Underlying Securities occurs and is continuing, and if directed by a majority
of the outstanding Certificateholders, the Trustee shall vote the Underlying
Securities in favor of directing, or take such other action as may be
appropriate to direct, the Underlying Securities Trustee to declare the unpaid
principal amount of the Underlying Securities and any accrued and unpaid
interest thereon to be due and payable.
Section 18. Additional Depositor Representation. It is the express
intent of the parties hereto that the conveyance of the Underlying Securities
by the Depositor to the Trustee be, and be construed as, a sale of the
Underlying Securities by the Depositor and not a pledge of any Underlying
Securities by the Depositor to secure a debt or other obligation of the
Depositor. In the event that, notwithstanding the aforementioned intent of the
parties, any Underlying Securities are held to be property of the Depositor,
then, it is the express intent of the parties that such conveyance be deemed a
pledge of such Underlying Securities by the Depositor to the Trustee to secure
a debt or other obligation of the Depositor, pursuant to Section 10.07 of the
Standard Terms. In connection with any such grant of a security interest in
the Underlying Securities (including any such grant in connection with any
sale of additional Underlying Securities pursuant to Section 3(d)), the
Depositor hereby represents and warrants to Trustee as follows:
(i) In the event the Underlying Securities are held to be property of the
Depositor, then the Trust Agreement creates a valid and continuing
security interest (as defined in the applicable Uniform Commercial
Code) in the Underlying Securities in favor of the Trustee which
security interest is prior to all other liens, and is enforceable as
such as against creditors of, and purchasers from, the Depositor.
(ii) The Underlying Securities have been credited to a trust account (the
"Securities Account") of the Trustee, or its authorized agent, in
accordance with Section 2.01 of the Standard Terms. The Trustee, as
securities intermediary for the Securities Account, has agreed to
treat the Underlying Securities as "financial assets" within the
meaning of the Uniform Commercial Code.
16
(iii) Immediately prior to the transfer of the Underlying Securities to the
Trust, Depositor owned and had good and marketable title to the
Underlying Securities free and clear of any lien, claim or
encumbrance of any Person.
(iv) Depositor has received all consents and approvals required by the
terms of the Underlying Securities to the transfer to the Trustee of
its interest and rights in the Underlying Securities as contemplated
by the Trust Agreement.
(v) Depositor has taken all steps necessary to cause the Trustee, as
securities intermediary for the Securities Account, to identify on
its records that the Trustee, as the trustee of the Trust, is the
Person having a security entitlement against the securities
intermediary in the Securities Account.
(vi) Depositor has not assigned, pledged, sold, granted a security
interest in or otherwise conveyed any interest in the Underlying
Securities (or, if any such interest has been assigned, pledged or
otherwise encumbered, it has been released). Depositor has not
authorized the filing of and is not aware of any financing statements
against Depositor that includes a description of the Underlying
Securities. Depositor is not aware of any judgment or tax lien
filings against Depositor.
(vii) The Securities Account is not in the name of any Person other than
the Trust. Depositor has not consented to the compliance by the
Trustee, as securities intermediary, with entitlement orders of any
Person other than the Trustee, as trustee of the Trust.
17
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of
the date first written above.
XXXXXX ABS CORPORATION,
as Depositor
By:____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Trustee on behalf of the Callable Zero
Coupon Trust, Series 2002-TVA-1
By:____________________________
Name:
Title:
18
SCHEDULE I
SERIES 2002-TVA-1
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: Strips representing the principal amount
payable upon maturity of Tennessee
Valley Authority 6 3/4% Global Power
Bonds 1995 Series E due November 1, 2025
(the "Bonds"), subject to the Call
Warrants.
Issuer: Tennessee Valley Authority ("TVA")
CUSIP Number: 88059F AV 3
Principal Amount Deposited: $500,000,000
Original Issue Date: TVA issued $600,000,000 aggregate
principal amount of Bonds on October 31,
1995 and $750,000,000 aggregate principal
amount of Bonds on August 5, 1997.
Principal Amount of Underlying
Securities Originally Issued: $600,000,000; On August 5, 1997, TVA
issued a second installment of
$750,000,000 aggregate principal amount
of Bonds which are identical in all
respects and fungible with the Bonds
which were originally offered.
Maturity Date: November 1, 2025
Interest Rate: 6 3/4%
I-1
SCHEDULE II
CERTIFICATE CALL SCHEDULE
Price as a % Price as a % Price as a %
of the face of the face of the face
amount of the amount of the amount of the
Underlying Underlying Underlying
Call Date Securities Call Date Securities Call Date Securities
------------- -------------- ---------- -------------- ---------- ---------------
5/1/06 24.939% 5/1/13 41.057% 5/1/20 67.591%
11/1/06 25.843 11/1/13 42.545 11/1/20 70.041
5/1/07 26.780 5/1/14 44.088 5/1/21 72.580
11/1/07 27.751 11/1/14 45.686 11/1/21 75.211
5/1/08 28.757 5/1/15 47.342 5/1/22 77.938
11/1/08 29.799 11/1/15 49.058 11/1/22 80.763
5/1/09 30.879 5/1/16 50.836 5/1/23 83.691
11/1/09 31.999 11/1/16 52.679 11/1/23 86.725
5/1/10 33.159 5/1/17 54.589 5/1/24 89.868
11/1/10 34.361 11/1/17 56.568 11/1/24 93.126
5/1/11 35.606 5/1/18 58.618 5/1/25 96.502
11/1/11 36.897 11/1/18 60.743 11/1/25 100.000
5/1/12 38.235 5/1/19 62.945
11/1/12 39.621 11/1/19 65.227
2
EXHIBIT A
FORM OF TRUST CERTIFICATE
A-1
EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
A-1
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.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of ___________ Call Warrants
(the "Call Warrants") representing an interest in the Callable Zero Coupon
Trust Certificates, Series 2002-TVA-1 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 March 20,
2002 (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
A-1
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.
2
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]
3
CERTIFICATE
NUMBER 1 500,000 $1,000 PAR CERTIFICATES
CUSIP NO. 131010 AM 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
$500,000,000
CALLABLE ZERO COUPON TRUST CERTIFICATES,
SERIES 2002-TVA-1
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$500,000,000 aggregate principal amount of strips representing the principal
amount payable upon maturity of 3/4% Global Power Bonds 1995 Series E Due
November 1, 2025, issued by the Tennessee Valley Authority (the "Underlying
Securities 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 $500,000,000 DOLLARS
nonassessable, fully-paid, proportionate undivided beneficial ownership
interest in the Callable Zero Coupon Trust Certificates, Series 2002-TVA-1
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, Callable Zero Coupon Certificates, Series 2002-TVA-1,
dated as of March 25, 2002 (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
"Callable Zero Coupon Trust Certificates, Series 2002-TVA-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, and (ii) all payments
on or collections in respect of the Underlying Securities accrued on or after
March 25, 2002; 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
2
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.
3
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
CALLABLE ZERO COUPON TRUST
CERTIFICATES, SERIES 2002-TVA-1 TRUST
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
not in its individual capacity but solely
as Trustee,
By:
--------------------------------------
Authorized Signatory
Dated: March 25, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Callable Zero Coupon Trust Certificates, Series
2002-TVA-1, 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
4
(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 Certificateholders 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 $1000.
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
Certificateholders; (ii) the exercise of all outstanding Call Warrants by the
Warrant Holder; (iii)
5
the 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.
6
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.
7
WARRANT AGENT AGREEMENT
CALLABLE ZERO COUPON TRUST
SERIES 2002-TVA-1
WARRANT AGENT AGREEMENT, dated as of March 25, 2002 (the "Warrant Agent
Agreement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the "Trustee")
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 Callable Zero Coupon Trust Series
2002-TVA-1 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 2002-TVA-1, dated as of
March 25, 2002 (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,
the Warrant Agent and the Trustee that 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 in the
Series Supplement, and as follows:
ARTICLE I - EXERCISE OF CALL WARRANTS
Section 1.1 Manner of Exercise. (a) Call Warrants may be exercised by any
holder thereof (each, a "Warrant Holder") in whole or in part on any Call
Date. The following conditions shall apply to any exercise of Call Warrants:
(i) A notice (each, a "Call Notice") specifying the Call
Warrants being exercised and the Call Date shall be delivered to the
Warrant Agent and the Trustee at least 5 Business Days before such
Call Date. Thereafter, in the event of a partial call, the Trustee
shall select the Certificates to be called within 1 Business Day of
its receipt of such Call Notice, in accordance with the provisions
of Section 7(d) (v) of the Series Supplement.
(ii) The Warrant Holder shall surrender the Call Warrants
to the Warrant Agent at its office specified in Section 6.3 hereof
no later than 10:00 a.m. (New York City time) on such Call Date.
(iii) The Warrant 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 Call Price, no
later than 10:00 a.m. (New York City time) on the Call Date.
(iv) The Warrant Holder may not exercise the Call Warrants
at any time when such Warrant Holder is insolvent, and 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 by delivering to the
Trustee a form reasonably satisfactory to the Trustee of the opinion
and the solvency certificate required pursuant to Section 7(d)(ii)
of the Series Supplement.
(v) The Warrant Holder shall have satisfied any other
conditions to the exercise of Call Warrants set forth in Section
7(d) of the Series Supplement.
(b) Upon exercise of Call Warrants, any Warrant Holder other than
the Depositor or any Affiliate of the Depositor shall be entitled to delivery
by the Trustee of the Called Certificates. The "Called Certificates" shall be
Certificates having a Certificate Principal Amount equal to $1,000 per Call
Warrant. Unless otherwise specified therein, such Call Notice shall be deemed
to be notice of an Optional Exchange pursuant to Section 7(b) of the Series
Supplement. Any Warrant Holder which is the Depositor or any Affiliate of the
Depositor shall receive the proceeds of the sale of the Called Underlying
Securities and shall not be entitled to receive the related Called
Certificates or Called Underlying Securities. "Called Underlying Securities"
are Underlying Securities which represent the same percentage of the
Underlying Securities as the Called Certificates represent of the
Certificates.
(c) The Warrant Agent shall notify the Trustee immediately upon its
receipt of a Call Notice and upon receipt of payment of the Call Price. The
Warrant Agent shall transfer the amount of any paid Call Price to the Trustee
in immediately available funds, for deposit in the Certificate Account and
application pursuant to the Trust Agreement on the applicable Call Date (and,
pending such transfer, shall hold such amount for the benefit of the Warrant
Holder in a segregated trust account).
(d) Delivery of a Call Notice does not give rise to an obligation on
the part of the Warrant Holder to pay the Call Price. If, by 10:00 a.m. (New
York City time) on the Call Date, the Warrant Holder has not paid the Call
Price, then the Call Notice shall automatically expire and none of the Warrant
Holder, the Warrant Agent or the Trustee shall have any obligation with
respect to the Call Notice. The expiration of a Call Notice shall in no way
affect the Warrant Xxxxxx's right to deliver a Call Notice at a later date.
2
Section 1.2 Transfer of Certificates. As soon as practicable after each
surrender of Call Warrants in whole or in part on the Call Date and upon
satisfaction of all other requirements described in the Call Warrants and in
Section 1.1 hereof, the Warrant Agent shall instruct the Trustee as follows:
(a) if Call Warrants are being exercised by any Warrant Holder other
than the Depositor or any Affiliate of the Depositor, to cause the Called
Certificates to reflect the Warrant Holder's beneficial ownership of such
Certificates and if such Call Notice is also deemed to be a notice of Optional
Exchange, to cause a distribution of Underlying Securities to the Warrant
Holder in accordance with Section 7(a) of the Series Supplement, or
(b) if the Call Warrants are being exercised by the Depositor or any
Affiliate of the Depositor, to cause the Called Underlying Securities to be
sold pursuant to Section 15 of the Series Supplement and to distribute the
proceeds of such sale to the Warrant Holder.
If such exercise is in part only, the Warrant Agent shall instruct the
Trustee to authenticate new Call Warrants of like tenor, representing the
outstanding Call Warrants of the Warrant Holder and the Warrant Agent shall
deliver such Call Warrants to the Warrant Holder.
In each case, the Trustee shall act in accordance with such instructions.
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 (other than that reflecting any such
transfer or exchange) 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, Call Warrants shall not entitle the
Warrant Holder 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.
Section 1.5 Redemption of Unsold Certificates. Under the Trust Agreement,
if any Certificates are held by the Underwriter, the Depositor or any of their
affiliates on June 25, 2002 and have not been held by third parties, such
Certificates will be redeemed for a proportional amount of Underlying
Securities. In the case that any Certificates are redeemed pursuant to Section
8 of the Series Supplement, the related Call Warrants will be redeemed
simultaneously to the redemption of such Certificates.
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:
3
"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 Warrant Holder will
give 5 Business Days (or such lesser period acceptable to the Warrant Agent)
prior written notice to the Warrant Agent of such Warrant Xxxxxx'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 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 number of Call Warrants, in the name of such Warrant Holder or as such
Warrant Holder (upon payment by such Warrant 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:
4
"Business Day": As defined in the Trust Agreement.
"Call Date": Any May 1st or November 1st on or after May 1, 2006.
"Call Price" For each related Call Date, the amount (or portion thereof,
in the case of a partial call) set forth in Schedule II to the Series
Supplement for such Call Date.
"Call Warrant": As defined in the recitals.
"Called Certificates": As defined in Section 1.1(b).
"Called Underlying Securities" The Underlying Securities which represent
the same percentage of the Underlying Securities as the Called Certificates
represent of the Certificates.
"Closing Date": March 25, 2002.
"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 Agency": 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,
5
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
Warrant Holder 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
6
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 Warrant Holders 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 Warrant Holders 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 Warrant Holder, then the Warrant Agent
or registered Warrant Holder may apply to any court of
7
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 Agency. 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 Warrant Holder 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 Warrant Holder. Nothing
contained in this Warrant Agent Agreement shall be construed as imposing any
obligation on the Warrant Holder 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 Warrant
Holder, at the registered address of such Warrant 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
Warrant Holder 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. The Warrant Agent shall forward to the Warrant Holder any notices
received by it hereunder or pursuant to the Trust Agreement or this Agreement
by facsimile within one Business Day of receipt thereof.
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
Warrant Holder, 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 cause the Trust to be taxed as an association or publicly
trade partnership taxable as a corporation 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
Warrant Holder 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.
8
(b) Without limiting the generality of the foregoing, the Call
Warrants may also be modified or amended from time to time by the Depositor,
the Trustee and the Warrant Agent with the consent of Warrant Holders of
66-2/3% of each of the Call Warrants related to the Certificates, upon receipt
of an opinion of counsel satisfactory to the Warrant Agent that the provisions
hereof (including, without limitation, the following proviso) have been
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 Warrant Holders; 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 Agency 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
100% of the affected Warrant Holders 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 100% of the affected Warrant Holders.
(c) Promptly after the execution of any such amendment or
modification, the Warrant Agent shall furnish a copy of such amendment or
modification to each Warrant Holder, to the Trustee and to the Rating Agency.
It shall not be necessary for the consent of Warrant Holders or holders of
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 or (c) the liquidation, disposition, or
maturity of all of the Underlying Securities.
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 AGREEMENT 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
9
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 Warrant
Holder by its acceptance thereof, and (ii) the Warrant Agent agrees, that it
shall not (and, in the case of the Warrant 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.
10
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date
first above written.
XXXXXX ABS CORPORATION,
as Depositor
By: _____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee and Authenticating Agent
By:_____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:_____________________________
Name:
Title:
11
