Exhibit 7
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
VERIZON GLOBAL FUNDING CORP. NOTE-BACKED SERIES 2002-16 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
CORPORATE BACKED TRUST CERTIFICATES
Dated as of July 30, 2002
Table of Contents
Page
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Section 1. Incorporation of Standard Terms..................................1
Section 2. Definitions......................................................1
Section 3. Designation of Trust and Certificates............................8
Section 4. Trust Certificates..............................................10
Section 5. Distributions...................................................11
Section 6. Trustee's Fees..................................................14
Section 7. Optional Call; Optional Exchange................................14
Section 8. Notices of Events of Default....................................18
Section 9. Miscellaneous...................................................18
Section 10. Governing Law..................................................21
Section 11. Counterparts...................................................22
Section 12. Termination of the Trust.......................................22
Section 13. Sale of Underlying Securities; Optional Exchange...............22
Section 14. Amendments.....................................................22
Section 15. Voting of Underlying Securities, Modification of Indenture.....23
Section 16. Additional Depositor Representation............................24
SCHEDULE I SERIES 2002-16 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A-1 FORM OF TRUST CERTIFICATE CLASS A-1
EXHIBIT A-2 FORM OF TRUST CERTIFICATE CLASS A-2
EXHIBIT B FORM OF WARRANT AGENT AGREEMENT
EXHIBIT C FORM OF INVESTMENT LETTER
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SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
VERIZON GLOBAL FUNDING CORP. NOTE-BACKED SERIES 2002-16 TRUST
SERIES SUPPLEMENT, Verizon Global Funding Corp. Note-Backed Series
2002-16, dated as of July 30, 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 Verizon Global Funding
Corp. Note-Backed Series 2002-16 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
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not applicable to this Series.) Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Standard Terms.
"Available Funds" shall have the meaning specified in the Standard
Terms, except that proceeds of any redemption of the Underlying Securities
shall be included in Available Funds.
"Business Day" shall mean any day other than (i) Saturday and
Sunday or (ii) a day on which banking institutions in New York City, New York
are authorized or obligated by law or executive order to be closed for
business or (iii) a day that is not a business day for the purposes of the
Indenture.
"Calculation Agent" shall mean Xxxxxx ABS Corporation or such
affiliate thereof as shall be designated by Xxxxxx ABS Corporation.
"Certificate Account" shall have the meaning specified in the
Standard Terms.
"Call Date" shall mean any Business Day (i) on or after July 30,
2007, (ii) after the Underlying Securities Issuer announces that it will
redeem (in whole or in part) or otherwise make an unscheduled payment on the
Underlying Securities, (iii) after the Trustee notifies the Certificateholders
of any proposed sale of the Underlying Securities pursuant to the provisions
of this Series Supplement or (iv) on which a tender offer for some or all of
the Underlying Securities is consummated.
"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, (i) in the
case of the Class A-1 Certificates, 100% of the outstanding Certificate
Principal Balance of the Class A-1 Certificates being purchased pursuant to
the exercise of the Call Warrants, plus any accrued and unpaid interest on
such amount to but excluding the Call Date and (ii) in the case of the Class
A-2 Certificates, the present value of all amounts that would otherwise have
been payable on the Class A-2 Certificates being purchased pursuant to the
exercise of the Call Warrants for the period from the related Call Date to the
Final Scheduled Distribution Date using a discount rate of 9.00% per annum,
assuming no delinquencies, deferrals, redemptions or prepayments on the
Underlying Securities shall occur after the related 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.
"Class A-1 Allocation" shall mean the sum of the present values
(discounted at the rate of 7.625% per annum) of (i) any unpaid interest due or
to become due on the Class A-1 Certificates and (ii) the outstanding
Certificate Principal Balance of the Class A-1 Certificates (in
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each case assuming that the Class A-1 Certificates were paid when due and were
not redeemed or prepaid prior to their stated maturity).
"Class A-1 Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-1, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described herein and in
the Certificates.
"Class A-2 Allocation" shall mean the present value (discounted at
the rate of 7.625% per annum) of any unpaid amounts due or to become due on
the outstanding notional amount of the Class A-2 Certificates (assuming that
the Class A-2 Certificates were paid when due and were not redeemed or prepaid
prior to their stated maturity).
"Class A-2 Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-2, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described herein and in
the Certificates.
"Closing Date" shall mean July 30, 2002.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Period" shall mean, (i) with respect to each December
Distribution Date, the period beginning on the day after the June Distribution
Date of such year and ending on such December Distribution Date, inclusive
and, (ii) with respect to each June Distribution Date, the period beginning on
the day after the December Distribution Date of the prior year and ending on
such June Distribution Date, inclusive; provided, however, that clauses (i)
and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank Trust
National Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
"Depository" shall mean The Depository Trust Company, its nominees
and their respective successors.
"Distribution Date" shall mean June 1st and December 1st of each
year (or if such date is not a Business Day, the next succeeding Business
Day), commencing on December 1, 2002, and ending on the earlier of the Final
Scheduled Distribution Date and any date on which all Underlying Securities
are redeemed pursuant to the Indenture or prepaid or liquidated in whole for
any reason other than at their maturity.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall mean (i) a default in the payment of any
interest on any Underlying Security after the same becomes due and payable
(subject to any applicable grace
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period), (ii) a default in the payment of the principal of or any installment
of principal of any Underlying Security when the same becomes due and payable,
and (iii) any other event specified as an "Event of Default" in the Indenture.
"Exchange Act" shall mean the Securities and Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Final Scheduled Distribution Date" shall mean December 1, 2030,
or, if such day is not a Business Day, the next succeeding Business Day.
"Indenture" shall mean the indenture among the Underlying
Securities Issuer, Verizon Communication and the Underlying Securities
Trustee, pursuant to which the Underlying Securities were issued.
"Interest Accrual Period" shall mean for any Distribution Date,
the period from and including the preceding Distribution Date (or in the case
of the first Interest Accrual Period, from and including July 30, 2002) to but
excluding the current Distribution Date.
"Liquidation Price" shall mean the price at which the Trustee
sells the Underlying Securities.
"Liquidation Proceeds" shall have the meaning specified in the
Standard Terms.
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Optional Call" shall mean the call of the Certificates by the
Warrant Holder, in whole or in part, resulting from the exercise of Call
Warrants by the Warrant Holder, pursuant to Section 7(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.
"Plan" means (a) an employee benefit plan (as defined in Section
3(3) of ERISA), (b) a plan described in Section 4975(e)(1) of the Code or (c)
any entity whose underlying assets are treated as assets of any such plan by
reason of such plan's investment in the entity.
"Prepaid Ordinary Expenses" shall be zero for this Series.
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"Prospectus Supplement" shall mean the Prospectus Supplement,
dated July 18, 2002, relating to the Certificates.
"QIB" shall have the meaning set forth in Section 3(e) hereof.
"Rating Agency" shall mean Moody's and S&P.
"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, unless the subject amendment requires the vote of holders of
only one class of Certificates pursuant to the Standard Terms, in which case
66-2/3% of the Voting Rights of such Class.
"Required Percentage-Direction of Trustee" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Remedies" shall be 66-2/3% of the aggregate
Voting Rights.
"Required Percentage-Removal" shall be 66-2/3% of the aggregate
Voting Rights.
"Required Rating" shall mean, in the case of Moody's, the rating
assigned to the Underlying Securities by Moody's as of the Closing Date, and,
in the case of S&P, the rating assigned to the Underlying Securities by S&P as
of the Closing Date.
"Resale Restriction Termination Date" shall have the meaning set
forth in Section 3(e) hereof.
"Rule 144A" shall have the meaning set forth in Section 3(e)
hereof.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"Securities Act" shall mean the United States Securities Act of
1933, as amended.
"Series" shall mean Verizon Global Funding Corp. Note-Backed
Series 2002-16.
"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, the Certificate Account and any additional Underlying
Securities sold to the Trust pursuant to Section 3(d) hereof.
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"Underlying Securities" shall mean $55,190,000 aggregate principal
amount of 7 3/4% Notes due 2030, issued by the Underlying Securities Issuer,
as set forth in Schedule I attached hereto (subject to Section 3(d) hereof).
"Underlying Securities Issuer" shall mean Verizon Global Funding
Corp.
"Underlying Securities Trustee" shall mean First Union National
Bank.
"Underwriters" shall mean Xxxxxx Brothers Inc. and Prudential
Securities Incorporated.
"Verizon Communications" shall mean Verizon Communications Inc.
"Voting Rights" shall be allocated between the holders of the
Class A-1 Certificates and the holders of the Class A-2 Certificates, pro
rata, in proportion to the ratio of the Class A-1 Allocation to the Class A-2
Allocation. The Class A-1 Voting Rights will be allocated among Class A-1
Certificateholders in proportion to the then unpaid Certificate Principal
Balances of their respective Certificates and the Class A-2 Voting Rights will
be allocated among all Class A-2 Certificateholders in proportion to the then
outstanding notional 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"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
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"Cut-off Date"
"Eligible Expense"
"Eligible Investment"
"Exchange Rate Agent"
"Fixed Pass-Through Rate"
"Floating Pass-Through Rate"
"Guaranteed Investment Contract"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
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"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Corporate Backed Trust Certificates, Verizon
Global Funding Corp. Note-Backed Series 2002-16 Trust." The Certificates
evidencing certain undivided ownership interests therein shall be known as
"Corporate Backed Trust Certificates, Verizon Global Funding Corp. Note-Backed
Series 2002-16." The Certificates shall consist of the Class A-1 Certificates
and the Class A-2 Certificates (together, the "Certificates"). The Trust is
also issuing call warrants with respect to the Certificates ("Call Warrants").
(a) The Certificates shall be held through the Depository in
book-entry form and shall be substantially in the forms attached hereto as
Exhibits A-1 and A-2. The Class A-1 Certificates shall be issued in
denominations of $25. The Class A-2 Certificates shall be issued in minimum
notional denominations of $100,000 and integral multiples of $1 in excess
thereof; provided, however, that on any Call Date on which a Warrant Holder
shall concurrently exchange Called Certificates for a distribution of
Underlying Securities in accordance with the provisions of Section 7 hereof,
Called Certificates may be issued in other denominations. Except as provided
in the Standard Terms and in paragraph (d) in this Section, the Trust shall
not issue additional Certificates or additional Call Warrants or incur any
indebtedness.
(b) The Class A-1 Certificates consist of 2,207,600 Certificates
having an initial aggregate certificate principal amount (the "Certificate
Principal Balance") of $55,190,000. The Class A-2 Certificates are
interest-only Certificates, and shall have an initial aggregate notional
amount equal to the initial Certificate Principal Balance of the Class A-1
Certificates.
(c) The holders of the Class A-1 Certificates will be entitled to
receive on each Distribution Date the interest, if any, received on the
Underlying Securities, to the extent necessary to pay interest at a rate of
7.625% per annum on the outstanding Certificate Principal Balance of the Class
A-1 Certificates. The holders of the Class A-2 Certificates will be entitled
to receive on each Distribution Date the interest, if any, received on the
Underlying Securities, to the extent necessary to pay interest at a rate of
0.125% per annum on the outstanding notional amount of the Class A-2
Certificates. On the Distribution Date occurring in December 2002, the Trustee
shall cause the Trust to pay to the Depositor the amount of interest accrued
and paid on the Underlying Securities from June 1, 2002, to but not including
the Closing Date; provided, however, that in the event an Optional Exchange
Date shall occur prior to December 1, 2002, a pro rata portion of such amount
shall be paid to the Depositor on the Optional Exchange Date in accordance
with the provisions of Section 7(b)(ix) hereof. If the Depositor is not paid
any such amount on such date, it shall have a claim for such amount. If
Available Funds are insufficient to pay such amount, the Trustee will pay the
Depositor its pro rata share, based on the ratio the
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amount owed to the Depositor bears to all amounts owed on the Certificates in
respect of accrued interest, of any proceeds from the recovery on the
Underlying Securities.
(d) The Depositor may sell to the Trustee additional Underlying
Securities on any date hereafter upon at least 3 Business Days' notice to the
Trustee (or such shorter period as shall be mutually satisfactory to the
Depositor and 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 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, Class A-1
Certificates in a Certificate Principal Balance, and Class A-2 Certificates in
a notional amount, equal to the principal amount of such additional Underlying
Securities, and the Call Warrants related thereto. Any such additional Class
A-1 Certificates and Class A-2 Certificates authenticated and delivered shall
have the same terms and rank pari passu with the corresponding classes of
Certificates previously issued in accordance with this Series Supplement.
(e) No Class A-2 Certificate may be offered, resold, assigned or
otherwise transferred (including by pledge or hypothecation) at any time prior
to (x) the date which is two years or such shorter period of time as permitted
by Rule 144(k) under the Securities Act after the later of the original issue
date of such Class A-2 Certificates and the last date on which the Depositor
or any "affiliate" (as defined in Rule 144 under the Securities Act) of the
Depositor was the owner of such Class A-2 Certificates (or any predecessor
thereto) or (y) such later date, if any, as may be required by a change in
applicable securities laws (the "Resale Restriction Termination Date") unless
such offer, resale, assignment or transfer is (i) to the Trust, (ii) pursuant
to an effective registration statement under the Securities Act, (iii) to a
qualified institutional buyer (a "QIB"), as such term is defined in Rule 144A
promulgated under the Securities Act ("Rule 144A"), in accordance with Rule
144A or (iv) pursuant to another available exemption from registration
provided under the Securities Act, and, in each of cases (i) through (iv), in
accordance with any applicable securities laws of any state of the United
States and other jurisdictions. Prior to any offer, resale, assignment or
transfer of any Class A-2 Certificates in the manner described in clause (iii)
above, the prospective transferee and the prospective transferor shall be
required to deliver to the Trustee an executed copy of an Investment Letter
with respect to the Class A-2 Certificates to be transferred substantially in
the form of Exhibit C hereto. Prior to any offer, resale, assignment or
transfer of any Class A-2 Certificates in the manner described in clause (iv)
above, the prospective transferee and the prospective transferor shall be
required to deliver to the Trustee documentation certifying that the offer,
resale, assignment or transfer complies with the provisions of said clause
(iv). In addition to the foregoing, each prospective transferee of any Class
A-2 Certificates in the manner contemplated by clause (iii) above shall
acknowledge, represent and agree as follows:
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(1) The transferee (x) is a QIB, (y) is aware that the sale to it
is being made in reliance on Rule 144A and (z) is acquiring
such Class A-2 Certificates for its own account or for the
account of a QIB.
(2) The transferee understands that the Class A-2 Certificates are
being offered in a transaction not involving any public
offering in the United States within the meaning of the
Securities Act, and that the Class A-2 Certificates have not
been and will not be registered under the Securities Act.
(3) The transferee agrees that (A) if in the future it decides to
offer, resell, pledge or otherwise transfer the Class A-2
Certificates prior to the Resale Restriction Termination Date,
such Class A-2 Certificates shall only be offered, resold,
assigned or otherwise transferred (i) to the Trust, (ii)
pursuant to an effective registration statement under the
Securities Act, (iii) to a QIB, in accordance with Rule 144A or
(iv) pursuant to another available exemption from registration
provided under the Securities Act, and, in each of cases (i)
through (iv), in accordance with any applicable securities laws
of any state of the United States and other jurisdictions and
(B) the transferee will, and each subsequent holder is required
to, notify any subsequent purchaser of such Class A-2
Certificates from it of the resale restrictions referred to in
clause (A) above.
(f) The Class A-2 Certificates will, unless otherwise agreed by the
Depositor and the Trustee, bear a legend substantially to the following
effect:
"THIS CLASS A-2 CERTIFICATE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
WHILE A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO
AN EXEMPTION THEREFROM UNDER SUCH ACT. THE CLASS A-2
CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2 CERTIFICATE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS CLASS A--2 CERTIFICATE MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER."
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
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(b) all documents required to be delivered to the Trustee pursuant
to Section 2.01 of the Standard Terms.
Section 5. Distributions.
(a) Except as otherwise provided in Sections 3(c), 5(c), 5(d) and
5(i), on each applicable Distribution Date (or such later date as specified in
Section 9(f)), the Trustee shall apply Available Funds in the Certificate
Account as follows:
(i) The Trustee will pay the interest portion of Available
Funds:
(1) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee in
accordance with Section 6(b) below and approved by 100% of the
Certificateholders; and
(2) second, to the holders of the Class A-1 Certificates
and to the holders of the Class A-2 Certificates, interest
accrued and unpaid on each such Class, pro rata in proportion
to their entitlements thereto.
(ii) the Trustee will pay the principal portion of Available
Funds:
(1) first, to the Trustee, as reimbursement for any
remaining Extraordinary Trust Expenses incurred by the Trustee
in accordance with Section 6(b) below and approved by 100% of
the Certificateholders; and
(2) second, to the holders of the Class A-1 Certificates,
the Certificate Principal Balance of the Class A-1 Certificates
(the Class A-2 Certificates are not entitled to distributions
of principal).
(iii) any Available Funds remaining in the Certificate Account
after the payments set forth in clauses 5(a)(i) and 5(a)(ii) above
shall be paid to the Trustee as reasonable compensation for services
rendered to the Depositor, up to $1,000.
(iv) the Trustee will pay any Available Funds remaining in the
Certificate Account after the distributions in clauses 5(a)(i)
through 5(a)(iii) above to the holders of the Class A-1 Certificates
and Class A-2 Certificates pro rata in proportion to their original
Certificate Principal Balances.
Any portion of the Available Funds (i) that does not constitute principal of,
or interest on, the Underlying Securities, (ii) that is not received in
connection with a redemption, prepayment or liquidation of the Underlying
Securities and (iii) for which allocation by the Trustee is not otherwise
contemplated by this Series Supplement, shall be remitted by the Trustee to
the Depositor.
(b) [Reserved].
(c) Notwithstanding the foregoing, if the Underlying Securities are
redeemed (including as a result of an optional redemption), prepaid or
liquidated in whole or in part for any
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reason other than due to the occurrence of an Underlying Securities Event of
Default, the cessation of Verizon Communications to file periodic reports as
required by the Exchange Act or at their maturity, the Trustee shall apply
Available Funds in the manner described in Section 5(h) in the following order
of priority:
(i) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee in
accordance with Section 6(b) below and approved by 100% of
the Certificateholders;
(ii) second, to the holders of the Class A-1 Certificates, an
amount equal to the principal amount of Underlying
Securities so redeemed, prepaid or liquidated plus accrued
and unpaid interest on the amount of Class A-1
Certificates so redeemed;
(iii) third, to the holders of the Class A-2 Certificates, the
present value of all amounts that would otherwise have
been payable on the Class A-2 Certificates for the period
from the date of such redemption or prepayment to the
Final Scheduled Distribution Date using a discount rate of
7.625% per annum, assuming no delinquencies, deferrals,
redemptions or prepayments on the Underlying Securities;
(iv) fourth, to the Trustee, as reasonable compensation for
services rendered to the Depositor, any remainder up to
$1,000; and
(v) fifth, any remainder to the holders of the Class A-1
Certificates and the Class A-2 Certificates pro rata in
proportion to the ratio of the Class A-1 Allocation to the
Class A-2 Allocation.
(d) 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 to the holders of the Class A-1 Certificates and the holders of the
Class A-2 Certificates in accordance with the ratio of the Class A-1
Allocation to the Class A-2 Allocation.
(e) 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(d) hereof, provided, however, that if any Warrant Holder designates any day
on or prior to the proposed sale date as a Call Date and Optional Exchange
Date pursuant to Section 7, the portion of Underlying Securities related 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.
(f) 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
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then outstanding and unpaid and to the Warrant Agent. Such notice shall state
that the Trustee shall, not later than 30 days after the receipt of such
property, allocate and distribute such property to the holders of Class A-1
Certificates and Class A-2 Certificates then outstanding and unpaid (after
deducting the costs incurred in connection therewith) in accordance with
Section 5(d) 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 Balance of the Class A-1 Certificates on a
dollar-for-dollar basis. The outstanding notional amount of the Class A-2
Certificates shall be reduced, pro rata among all Class A-2
Certificateholders, by an amount equal to the amount by which the Certificate
Principal Balance of the Class A-1 Certificates is reduced.
(g) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any scheduled interest or principal payments on any class
of Certificates on any Distribution Date, any shortfall will be carried over
and will be distributed on the next Distribution Date (or date referred to in
Section 5(h) hereof) on which sufficient funds are available to pay such
shortfall.
(h) If a payment with respect to the Underlying Securities is made to
the Trustee (i) after the payment date of the Underlying Securities on which
such payment was due or (ii) 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, the cessation of
Verizon Communications to file periodic reports as required by the Exchange
Act or at their maturity, the Trustee will distribute any such amounts
received in accordance with Section 5(c) 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 with respect to the Underlying Securities.
(i) Notwithstanding Section 3.12 of the Standard Terms, if Verizon
Communications ceases to file periodic reports as required under the Exchange
Act, the Depositor shall within a reasonable time instruct the Trustee to (i)
notify the Warrant Agent that the Underlying Securities are proposed to be
sold and that any Call Warrants and related Optional Exchange rights must be
exercised no later than the date specified in the notice (which shall be not
less than ten Business Days after the date of such notice) and (ii) to the
extent that the Warrant Holders fail to exercise their Call Warrants and
related Optional Exchange rights on or prior to such date, to sell the
Underlying Securities and distribute the proceeds of such sale to the
Certificateholders in accordance with the following order of priority: first,
to the Trustee, as reimbursement for any Extraordinary Trust Expenses incurred
by the Trustee in accordance with Section 6(b) below and approved by 100% of
the Certificateholders; and second, any remainder to the holders of the Class
A-1 Certificates and the Class A-2 Certificates pro rata in proportion to the
ratio of the Class A-1 Allocation to the Class A-2 Allocation, as determined
by the Calculation Agent; provided, however, the Depositor shall not instruct
the Trustee to sell the Underlying Securities (or provide a notice of such
instruction to the Warrant Agent) pursuant to this clause unless the
Underlying Securities Issuer has either (x) stated in writing that it intends
permanently to cease
13
filing reports required under the Exchange Act or (y) failed to file any
required reports for one full calendar year.
(j) On any date on which Underlying Securities are redeemed, prepaid or
liquidated for any reason, the aggregate outstanding notional amount of the
Class A-2 Certificates shall be reduced by an amount equal to the principal
amount of the Underlying Securities so redeemed, prepaid or liquidated, the
reduction to be allocated pro rata among all Class A-2 Certificates.
Section 6. Trustee's Fees.
(a) As compensation for its services hereunder, the Trustee shall be
entitled to the Trustee Fee and any amounts payable under clauses 5(a)(iii)
and 5(b)(iv) above. The Trustee Fee shall be paid by the Depositor and not
from Trust Property. The Trustee shall bear all Ordinary Expenses. Failure by
the Depositor to pay such amount shall not entitle the Trustee to any payment
or reimbursement from the Trust, nor shall such failure release the Trustee
from the duties it is required to perform under the Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust Property
unless all the holders of the Class A-1 Certificates and Class A-2
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.
(a) On (A) any Distribution Date, (B) any date on which a tender offer
for some or all of the Underlying Securities is consummated or (C) any date on
which the Underlying Securities are to be redeemed by the Underlying
Securities Issuer, any holder of Class A-1 Certificates and Class A-2
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.
14
(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) Class A-1 Certificates and Class A-2 Certificates representing
a like percentage of all Class A-1 Certificates and Class A-2
Certificates shall be surrendered.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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(b) shall entitle the Certificateholder or Warrant Holder,
as applicable, to a distribution thereof.
(viii) The aggregate principal amount of Certificates exchanged in
connection with any Optional Exchange pursuant to this Section shall be
in an amount that will entitle the Certificateholders thereof to
Underlying Securities in an even multiple of the minimum denomination of
such Underlying Securities.
(ix) In the event such Optional Exchange shall occur prior to
December 1, 2002, the Certificateholders shall have paid to the Trustee,
for distribution to the Depositor, on the Optional Exchange Date an
amount equal to the sum obtained by multiplying the amount of accrued
interest on the Underlying Securities from June 1,
15
2002 through, but excluding, the Closing Date by a fraction, the
numerator of which shall be the number of Certificates being exchanged on
such Optional Exchange Date and the denominator of which shall be the
total number of Certificates.
(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 Agencies, in form satisfactory to the Rating
Agencies, indicating that payment of the Call Price shall not be
recoverable as a preferential transfer or fraudulent conveyance
under the United States Bankruptcy Code. Such opinion may contain
customary assumptions and qualifications.
(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, except in connection with a Call
Notice relating to a tender offer for the Underlying Securities,
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. The Call Price for a call in
connection with a tender offer shall be deducted from the proceeds
of a tender offer by the Trust pursuant to Section 7(g)(iii).
(v) Subject to receipt of the Call Price, the Trustee shall pay
the Call Price to the Certificateholders on the Call Date. The Call
Price for each Class of Certificates in respect of partial calls
shall be allocated pro rata to the Certificateholders of such Class.
(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
16
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; provided that satisfaction of the conditions set forth
in Section 7(b) shall entitle the Certificateholders or the Warrant Holders,
as applicable, to a distribution of 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.
(g) (i) If the Trustee receives notice of a tender offer for some or
all of the Underlying Securities, the Trustee shall within one Business Day
notify the Warrant Agent and forward to the Warrant Agent copies of all
materials received by the Trustee in connection therewith. If the Trustee
receives a Call Notice from any Warrant Holder no later than five Business
Days prior to the expiration of the tender offer acceptance period that such
Warrant Holder desires to exercise all or a portion of its Call Warrants in
connection with the consummation of any such tender offer, then the Trustee
shall tender, in compliance with the tender offer requirements, an amount of
Underlying Securities equal to the amount of Underlying Securities that would
be distributable to the Warrant Holder with respect to an Optional Exchange of
the Called Certificates called by such Warrant Holder; provided that any
Optional Call or Optional Exchange undertaken in connection with any such
tender offer shall be subject to the provisions of Section 7 hereof.
(ii) The Call Date and Optional Exchange Date for any exercise of
Call Warrants in connection with a tender offer shall be deemed to be the
Business Day on which such Underlying Securities are accepted for payment
and paid for.
(iii) The Call Price shall be deducted from the tender offer
proceeds and paid to Certificateholders in connection with Section
7(d)(v), and the excess of the tender offer proceeds over the Call Price
shall be paid to the exercising Warrant Holders pro rata in respect to
their proportionate exercises of Call Warrants or, if the Call Price
exceeds the tender offer proceeds, the amount of such excess shall be
paid by the exercising Warrant Holders pro rata in respect to their
proportionate exercises of Call Warrants.
(iv) If fewer than all tendered Underlying Securities are accepted
for payment and paid for, (A) the amount of Call Warrants exercised shall
be reduced to an amount that corresponds to a number of Certificates that
could be exchanged in an Optional
17
Exchange for the Underlying Securities accepted for payment and paid for
(without regard to any restrictions on the amount to be exchanged, so
long as such restrictions would have been satisfied had all tendered
Underlying Securities been accepted for payment and paid for); (B) each
Warrant Holder's exercise shall be reduced by its share (proportionate to
the amount specified in its exercise notice) of the amount of Underlying
Securities not accepted for payment and paid for; (C) the Call Price
shall be determined after giving effect to the reduction specified in
clause (B); (D) the Call Warrants that relate to the reduction specified
in clause (B) shall remain outstanding; and (E) the excess of the tender
offer proceeds over the Call Price shall be allocated in proportion to
the amount of Call Warrants deemed exercised as set forth in clause (A)
above or, if the Call Price exceeds the tender offer proceeds the amount
of such excess shall be paid by the exercising Warrant Holders pro rata
in respect to their proportionate exercises of Call Warrants.
(v) If the tender offer is terminated by the Underlying Securities
Issuer or any other tender offeror without consummation thereof or if all
tenders by the Trust of Underlying Securities are otherwise rejected,
then (1) the Call Notices will be of no further force and effect, and (2)
any Call Warrants relating to such Call Notices will not be exercised and
will remain outstanding.
Section 8. Notices of Events of Default.
As promptly as practicable after, and in any event within 30 days
after, the occurrence of any Event of Default actually known to the Trustee,
the Trustee shall give notice of such Event of Default to the Depository, or,
if any Certificates are not then held by DTC or any other depository, directly
to the registered holders of such Certificates, and to the Warrant Agent.
However, except in the case of an Event of Default relating to the payment of
principal of or interest on any of the Underlying Securities, the Trustee will
be protected in withholding such notice if in good faith it determines that
the withholding of such notice is in the interest of the Certificateholders.
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms
shall not apply to the Verizon Global Funding Corp. Note-Backed Series 2002-16
Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Verizon Global Funding Corp. Note-Backed Series
2002-16 Certificates.
(c) The Trustee shall simultaneously forward reports to
Certificateholders pursuant to Section 4.03 of the Standard Terms and to the
New York Stock Exchange.
(d) Except as expressly provided herein, the Certificateholders shall
not be entitled to terminate the Trust or cause the sale or other disposition
of the Underlying Securities.
(e) The provisions of Section 3.07(d) of the Standard Terms shall not
apply to the Verizon Global Funding Corp. Note-Backed Series 2002-16
Certificates.
18
(f) If the Trustee has not received payment with respect to a
Collection Period on the Underlying Securities on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of
such payment. No additional amounts shall accrue on the Certificates or be
owed to Certificateholders as a result of such delay; provided, however, that
any additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Class A-1 Certificateholders and
Class A-2 Certificateholders pro rata in proportion to their respective
entitlements to such delayed payments.
(g) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Losses (as defined in the Standard
Terms).
(h) The Trust may not engage in any business or activities other than in
connection with, or relating to, the holding, protecting and preserving of the
Trust Property and the issuance of the Certificates and 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. Section 2.01(f) of the
Standard Terms shall be superseded by this provision.
(i) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee may be removed upon 60 days prior written notice delivered by the
holders of Class A-1 Certificates and Class A-2 Certificates representing the
Required Percentage-Removal. Section 2.01(f) of the Standard Terms shall be
superseded by this provision.
(j) In the event that the Internal Revenue Service challenges the
characterization of the Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application
of Subchapter K of the Code and is hereby empowered to execute such forms on
behalf of the Certificateholders.
(k) Notwithstanding anything in the Standard Terms to the contrary, the
Trustee, upon written direction by the Depositor, will execute the
Certificates.
(l) In relation to Section 7.01(f) of the Standard Terms, any periodic
reports filed by the Trustee pursuant to the Exchange Act in accordance with
the customary practices of the Depositor, need not contain any independent
reports.
(m) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee will have no recourse to the Underlying Securities.
(n) A Plan fiduciary, whether or not a Certificateholder at such time,
may request in writing that the Trustee provide such Plan fiduciary with such
information as shall be necessary for it to determine whether any of the Call
Warrant holders is (i) a "party in interest" (within the meaning of ERISA,
Section 3(14)); or (ii) a "disqualified person" within the meaning of Internal
Revenue Code ("Code") Section 4975(e)(2) with respect to any employee benefit
plan or Plan identified to the Trustee by such Plan fiduciary at the time such
request is made in order for the Plan fiduciary to determine whether an
investment in the Certificates by such Plan is or would be
19
permissible under ERISA or the Code. Any such written request of a Plan
fiduciary shall be accompanied by a certification of the Plan fiduciary,
opinion of counsel experienced in such issues, and such other documentation as
the Trustee may require, in order to establish that such disclosure is
necessary for the Plan fiduciary to determine compliance with ERISA and the
Code, as well as a confidentiality agreement, whereby the Plan fiduciary
agrees not to disclose the identity of any Call Warrant holders except to any
legal or other experts as necessary to make such determination. The holder of
a Call Warrant shall upon reasonable request of the Trustee, in order for the
Trustee to satisfy its obligations to a Plan fiduciary, provide the Trustee
with any one or more of the following, in the sole discretion of the Call
Warrant holder: (i) a certificate that each of the Call Warrant holders is not
(x) a "party in interest" (within the meaning of ERISA, Section 3(14)) with
respect to any "employee benefit plan" as defined in ERISA, Section 3(3); or
(y) a "disqualified person" within the meaning of Internal Revenue Code
Section 4975(e)(2) with respect to a "Plan" as defined in Code Section
4975(e)(1) except in each case with respect to plans sponsored by the Call
Warrant holder or its affiliates which cover employees of the Call Warrant
holder and/or such affiliates; (ii) a certificate that each of the Call
Warrant holders is not such a "party in interest" or "disqualified person"
with respect to any employee benefit plan or Plan identified to the Trustee by
such Plan fiduciary at the time such request is made; or (iii) a written
consent to the limited disclosure of the respective Call Warrant holder's
identity to a specific Plan fiduciary solely for purposes of allowing the
Trustee to satisfy its obligations to a Plan fiduciary.
(o) The Trust will not merge or consolidate with any other entity
without confirmation from each Rating Agency that such merger or consolidation
will not result in the qualification, reduction or withdrawal of its
then-current rating on the Certificates.
(p) 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
20
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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 Holders in writing as set forth in this Section 9, and
copies of all directions, demands and notices required to be given to the
Trustee hereunder or under the Standard Terms will also be given to the
Warrant Agent in writing as set forth in this Section 9(p).
(q) Each of the representations, covenants and agreements made herein
by each of the Depositor and the Trustee are for the benefit of the
Certificateholders and the Warrant Holders.
(r) The provisions of the Section 2.01(d)(iii) of the Standard Terms
shall not apply to the Verizon Global Funding Corp. Note-Backed Series 2002-16
Certificates and the following shall be deemed to be inserted in its place:
"at the time of delivery of the Underlying Securities, the
Depositor owns such Underlying Securities, has the right to transfer its
interest in such Underlying Securities and such Underlying Securities are free
and clear of any lien, pledge, encumbrance, right, charge, claim or other
security interest; and
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO
21
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CHOICE OF LAWS PROVISIONS THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon the
earliest to occur of (i) the payment in full at maturity or sale by the Trust
after a payment default or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call Warrants by the Warrant Holder; (iii) the
Final Scheduled Distribution Date and (iv) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Section 13. Sale of Underlying Securities; 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 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 Class A-1 and Class A-2 Certificateholders. The Trustee shall not be
responsible for the failure to obtain a bid so long as it has made reasonable
efforts to obtain bids. If a bid for the sale of the Underlying Securities has
been accepted by the Trustee but the sale has failed to settle on the proposed
settlement date, the Trustee shall request new bids from such leading dealers.
In the event of an Optional Exchange, the Trustee shall only deliver the
Underlying Securities to the purchaser of such Underlying Securities or sell
the Underlying Securities pursuant to this Section 13, as the case may be,
against payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust Agreement
to the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall not enter into any amendment or
modification of the Trust Agreement which would adversely affect in any
material respect the interests of the holders of any class of Certificates
without the consent of the holders of 100% of such class of Certificates;
provided, however, that no such amendment or modification will be permitted
which would cause the Trust to be taxed as an association or publicly traded
partnership taxable as a corporation for federal income tax purposes. Unless
otherwise agreed, the Trustee shall provide five Business Days
22
written notice to each Rating Agency before entering into any amendment or
modification of the Trust Agreement pursuant to this Section 14.
Section 15. Voting of Underlying Securities, Modification of Indenture.
(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 Indenture or any other document thereunder or
relating thereto, or receives any other solicitation for any action with
respect to the Underlying Securities, the Trustee shall mail a notice of such
proposed amendment, modification, waiver or solicitation to each
Certificateholder of record as of such date. The Trustee shall request
instructions from the Certificateholders as to whether or not to consent to or
vote to accept such amendment, modification, waiver or solicitation. The
Trustee shall consent or vote, or refrain from consenting or voting, in the
same proportion (based on the relative outstanding Certificate Principal
Balances of the Class A-1 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 Class
A-1 Certificates, Class A-2 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 default under the
Indenture and only with the consent of Certificateholders representing 100% of
the Class A-1 Certificates, 100% of the Class A-2 Certificates 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 Class A-1
Certificateholders, Class A-2 Certificateholders and the Warrant Holders of
such offer promptly. Subject to the rights of the Warrant Holders to exercise
Call Warrants in connection with a tender offer for the Underlying Securities,
the Trustee must reject any such offer unless the Trustee is directed by the
affirmative vote of the holders of 100% of the Class A-1 Certificates, Class
A-2 Certificates and 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 Agencies.
23
(c) If an event of default under the Indenture occurs and is continuing,
and if directed by a majority of the outstanding Class A-1 Certificateholders
and Class A-2 Certificateholders, the Trustee shall vote the Underlying
Securities in favor of directing, or take such other action as may be
appropriate to direct, the Underlying Securities Trustee to declare the unpaid
principal amount of the Underlying Securities and any accrued and unpaid
interest thereon to be due and payable.
Section 16. 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.
(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
24
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.
25
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of
the date first written above.
XXXXXX ABS CORPORATION,
as Depositor
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee on behalf of the
Corporate Backed Trust Certificates
Verizon Global Funding Corp. Note-Backed
Series 2002-16 Trust
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
26
SCHEDULE I
VERIZON GLOBAL FUNDING CORP. NOTE-BACKED SERIES 2002-16
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 7 3/4% Notes due 2030.
Issuer: Verizon Global Funding Corp.
Support Agreement Provider: Verizon Communications Inc.
CUSIP Number: 92344G AM 8.
Principal Amount Deposited: $55,190,000.
Original Issue Date: The Underlying Securities were issued
pursuant to an exchange offering which
expired on September 6, 2001.
Principal Amount of
Underlying Securities
Originally Issued: $2,000,000,000.
Maturity Date: December 1, 2030.
Interest Rate: 7 3/4% per annum.
Interest Payment Dates: June 1st and December 1st.
Record Dates: May 15th and November 15th.
I-1
EXHIBIT A-1
FORM OF TRUST CERTIFICATE CLASS A-1
CLASS A-1 CERTIFICATE
---------------------
NUMBER 1 2,207,600 $25 PAR CERTIFICATES
CUSIP NO. 21988G 36 1
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.
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.
A-1-1
XXXXXX ABS CORPORATION
2,207,600 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
VERIZON GLOBAL FUNDING CORP. NOTE-BACKED SERIES 2002-16
7.625% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest
in the Trust, as defined below, the property of which consists principally of
$55,190,000 aggregate principal amount of 7 3/4% Notes due 2030, issued by
Verizon Global Funding Corp. (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 an
aggregate of $55,190,000 principal amount nonassessable, fully-paid,
proportionate undivided beneficial ownership interest in the Corporate Backed
Trust Certificates, Verizon Global Funding Corp. Note-Backed Series 2002-16
Trust, formed by the Depositor.
A-1-2
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 in respect of the Verizon
Global Funding Corp. Note-Backed Series 2002-16, dated as of July 30, 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 "Corporate Backed Trust Certificates, Verizon Global Funding
Corp. Note-Backed Series 2002-16, Class A-1" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The Trust Property consists of: (i) Underlying
Securities described in the Trust Agreement, and (ii) all payments on or
collections in respect of the Underlying Securities accrued on or after July
30, 2002, together with any and all income, proceeds and payments with respect
thereto; provided, however, that any income from the investment of Trust funds
in certain permitted investments ("Eligible Investments") does not constitute
Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, distributions will be made on each Distribution Date, to the Person
in whose name this Certificate is registered on the applicable Record Date, in
an amount equal to such Certificateholder's proportionate undivided beneficial
ownership interest in the amount required to be distributed to the Holders of
the Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding
such Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day.
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
A-1-3
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.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, VERIZON GLOBAL FUNDING
CORP. NOTE-BACKED SERIES 2002-16 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely
as Trustee,
By:
---------------------------------
Authorized Signatory
Dated: July 30, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Verizon
Global Funding Corp. Note-Backed Series 2002-16, 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
A-1-5
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to
the Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the Holders of Class A-1 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate)
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not a notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $25
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, the City of
New York, duly endorsed by or accompanied by an assignment in the form below
and by such other documents as required by the Trust Agreement, and thereupon
one or more new Certificates of the same class in authorized denominations
evidencing the same principal amount will be issued to the designated
transferee or transferees. The initial Certificate Registrar appointed under
the Trust Agreement is U.S. Bank Trust National Association.
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require exchange of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or
the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the
Trust created thereunder shall constitute a fixed investment trust for federal
income tax purposes under Treasury Regulation Section 301.7701-4, and the
Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall
terminate upon the earliest to occur of (i) the payment in full at maturity or
sale by the Trust after a payment default or an acceleration or
A-1-6
other early payment of the Underlying Securities and the distribution in full
of all amounts due to the Class A-1 Certificateholders and Class A-2
Certificateholders; (ii) the Final Scheduled Distribution Date and (iii) the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St. Xxxxx, living on the date hereof.
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.
A-1-7
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.
A-1-8
EXHIBIT A-2
FORM OF TRUST CERTIFICATE CLASS A-2
CLASS A-2 CERTIFICATE
---------------------
NUMBER 1 CUSIP NO. 21988G BZ 8
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-2 CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER
SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT.
THE CLASS A-2 CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2 CERTIFICATE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS CLASS A-2 CERTIFICATE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE NOTIONAL PRINCIPAL AMOUNT OF THIS CLASS A-2 CERTIFICATE IS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING NOTIONAL PRINCIPAL AMOUNT OF
THIS CLASS A-2 CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
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.
A-2-1
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.
A-2-2
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
VERIZON GLOBAL FUNDING CORP. NOTE-BACKED SERIES 2002-16
$55,190,000 NOTIONAL PRINCIPAL AMOUNT
0.125% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in
the Trust, as defined below, the property of which consists principally of
$55,190,000 aggregate principal amount of 7 3/4% Notes due 2030, issued by
Verizon Global Funding Corp. 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 an
aggregate amount of $55,190,000 notional principal amount nonassessable,
fully-paid, proportionate undivided beneficial ownership interest in the
Corporate Backed Trust Certificates, Verizon Global Funding Corp. Note-Backed
Series 2002-16 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, Verizon Global Funding
Corp. Note-Backed Series 2002-16, dated as of July 30, 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 "Corporate Backed Trust Certificates, Verizon Global Funding
Corp. Note-Backed Series 2002-16, Class A-2" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The Trust Property consists of: (i) Underlying
Securities described in the Trust Agreement, and (ii) all payments on or
collections in respect of the Underlying Securities accrued on or after July
30, 2002, together with any and all income, proceeds and payments with respect
thereto; provided, however, that any income from the investment of Trust funds
in certain permitted investments ("Eligible Investments") does not constitute
Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement
A-2-3
shall have terminated in accordance therewith, distributions of interest will
be made on this Certificate on each Distribution Date.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, distributions will be made on each Distribution Date, to the Person
in whose name this Certificate is registered on the applicable Record Date, in
an amount equal to such Certificateholder's proportionate undivided beneficial
ownership interest in the amount required to be distributed to the Holders of
the Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding
such Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day.
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.
A-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, VERIZON GLOBAL FUNDING
CORP. NOTE-BACKED SERIES 2002-16 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely
as Trustee,
By:
---------------------------------
Authorized Signatory
Dated: July 30, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Verizon
Global Funding Corp. Note-Backed Series 2002-16, 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
A-2-5
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to
the Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of Class A-2 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate)
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
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 $100,000 and in integral multiples of $1 in excess thereof.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, the City of
New York, duly endorsed by or accompanied by an assignment in the form below
and by such other documents as required by the Trust Agreement, and thereupon
one or more new Certificates of the same class in authorized denominations
evidencing the same notional 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
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payment in full at maturity or sale by the Trust after a payment default on or
an acceleration or other early payment of the Underlying Securities and the
distribution in full of all amounts due to the Class A-1 and Class A-2
Certificateholders; (ii) the Final Scheduled Distribution Date and (iii) the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
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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.
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EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
VERIZON GLOBAL FUNDING CORP. NOTE-BACKED SERIES 2002-16 TRUST
WARRANT AGENT AGREEMENT, dated as of July 30, 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 Corporate Backed Trust
Certificates, Verizon Global Funding Corp. Note-Backed Series 2002-16 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 2002-16, dated as of July 30, 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 number
of 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.
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(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 shall exercise Call Warrants
relating to Class A-1 Certificates and Call Warrants relating
to Class A-2 Certificates which represent a like percentage of
all Class A-1 Certificates and Class A-2 Certificates.
(v) 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.
(vi) The Warrant Holder shall have satisfied any other
conditions to the exercise of Call Warrants set forth in
Section 7(b) 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, in the case of the Class A-1
Certificates, Class A-1 Certificates having a Certificate Principal
Amount equal to $25 per Call Warrant, and in the case of the Class
A-2 Certificates, Class A-2 Certificates having a notional balance
equal to $100,000 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 Class A-1 Certificates and Class A-2
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).
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(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, except in connection with a Call
Notice relating to a tender offer for Underlying Securities, 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. The Call Price for a call in connection with
a tender offer shall be deducted from the proceeds of a tender offer
by the Trust pursuant to Section 7(g)(iii) of the Series Supplement.
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, provided, however, that if
such a Call Notice and Optional Exchange is in connection with a
tender offer, the Warrant Agent shall instruct the Trustee to
distribute to the exercising Warrant Holder the excess of
the tender offer proceeds over the Call Price pursuant to Section
7(g)(iii) 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 13 of the Series
Supplement and to distribute the proceeds of such sale to the
Warrant Holder.
If such exercise is in part only, the Warrant Agent shall instruct
the Trustee to authenticate new Call Warrants of like tenor, representing the
outstanding Call Warrants of the Warrant Holder and the Warrant Agent shall
deliver such Call Warrants to the Warrant Holder.
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
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amount on or in respect of the Certificates or to enforce any of the covenants
of the Trust Agreement.
Section 1.5 Pro Rata Reduction of Call Warrants if Partial Redemption
of Underlying Securities. If Underlying Securities are redeemed in part by the
Underlying Securities Issuer and the Warrant Holders do not exercise their
Call Rights in connection with such partial redemption, the number of Call
Warrants held by each Warrant Holder shall be reduced proportionately so that
the aggregate amount of Class A-1 Certificates callable by Call Warrants shall
equal the amount of outstanding Class A-1 Certificates after giving effect to
such partial redemption and the aggregate notional amount of Class A-2
Certificates callable by Call Warrants shall equal the outstanding notional
amount of Class A-2 Certificates after giving effect to such partial
redemption. The Warrant Agent shall make such adjustments to its records as
shall be necessary to reflect such reductions and shall notify each Warrant
Holder of such adjustments.
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1 Restrictive Legends. Except as otherwise permitted by this
Article II, each Call Warrant (including each Call Warrant issued upon the
transfer of any Call Warrant) shall be issued with a legend in substantially
the following form:
"This Call Warrant has not been registered under the Securities Act of
1933, as amended, and may not be transferred, sold or otherwise disposed of
except while a registration under such Act is in effect or pursuant to an
exemption therefrom under such Act. The Call Warrant represented hereby may
be transferred only in compliance with the conditions specified in the Call
Warrants."
Section 2.2 Notice of Proposed Transfer; Opinions of Counsel. Prior
to any transfer of any Call Warrant or portion thereof, the 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. (a) No Call
Warrant may be offered, resold, assigned or otherwise transferred (including
by pledge or hypothecation) at any time prior to (x) the date which is two
years or such shorter period of time as permitted by Rule 144(k) under the
Securities Act after the later of the original issue date of such Call
Warrants and
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the last date on which the Depositor or any "affiliate" (as defined in Rule
144 under the Securities Act) of the Depositor was the owner of such Call
Warrant (or any predecessor thereto) or (y) or such later date, if any, as may
be required by a change in applicable securities laws (the "Resale Restriction
Termination Date") unless such offer, resale, assignment or transfer is (i) to
the Trust, (ii) pursuant to an effective registration statement under the
Securities Act, (iii) to a qualified institutional buyer (a "QIB"), as such
term is defined in Rule 144A promulgated under the Securities Act ("Rule
144A"), in accordance with Rule 144A or (iv) pursuant to another available
exemption from registration provided under the Securities Act, and, in each of
cases (i) through (iv), in accordance with any applicable securities laws of
any state of the United States and other jurisdictions. Prior to any offer,
resale, assignment or transfer of any Call Warrant in the manner described in
clause (iii) above, the prospective transferee and the prospective transferor
shall be required to deliver to the Trustee an executed copy of an Investment
Letter with respect to the Call Warrants to be transferred substantially in
the form of Exhibit C to the Series Supplement. Prior to any offer, resale,
assignment or transfer of any Call Warrants in the manner described in clause
(iv) above, the prospective transferee and the prospective transferor shall be
required to deliver to the Trustee documentation certifying that the offer,
resale, assignment or transfer complies with the provisions of said clause
(iv). In addition to the foregoing, each prospective transferee of any Call
Warrants in the manner contemplated by clause (iii) above shall acknowledge,
represent and agree as follows:
(1) The transferee (x) is a QIB, (y) is aware that the sale to it
is being made in reliance on Rule 144A and (z) is acquiring
such Call Warrant for its own account or for the account of a
QIB.
(2) The transferee understands that the Call Warrant are being
offered in a transaction not involving any public offering in
the United States within the meaning of the Securities Act, and
that the Call Warrants have not been and will not be registered
under the Securities Act.
(3) The transferee agrees that (A) if in the future it decides to
offer, resell, pledge or otherwise transfer the Call Warrants
prior to the Resale Restriction Termination Date, such Call
Warrants shall only be offered, resold, assigned or otherwise
transferred (i) to the Trust, (ii) pursuant to an effective
registration statement under the Securities Act, (iii) to a
QIB, in accordance with Rule 144A or (iv) pursuant to another
available exemption from registration provided under the
Securities Act, and, in each of cases (i) through (iv), in
accordance with any applicable securities laws of any state of
the United States and other jurisdictions and (B) the
transferee will, and each subsequent holder is required to,
notify any subsequent purchaser of such Call Warrants from it
of the resale restrictions referred to in clause (A) above.
(b) 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
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charges) may direct; provided that as a condition precedent for
transferring the Call Warrants, the prospective transferee shall
deliver to the Trustee and the Depositor an executed copy of the
Investment Letter (set forth as Exhibit C to the Series Supplement)
if the same is required pursuant to the provisions of clause (a)
above.
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.
Section 3.5 Additional Call Warrants. The Trustee shall execute and
deliver additional Call Warrants on behalf of the Trust with respect to any
additional Certificates issued by the Trust following the sale of additional
Underlying Securities to the Trust, in accordance with the provisions of
Section 3(d) of the Series Supplement.
ARTICLE IV
DEFINITIONS
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any Business Day (i) on or after July 30, 2007, (ii) after
the Underlying Securities Issuer announces that it will redeem (in whole
or in part) or otherwise make an unscheduled payment on the Underlying
Securities, (iii) after the Trustee notifies the Certificateholders of
any proposed sale of the Underlying Securities pursuant to the provisions
of this Series Supplement or (iv) on which a tender offer for some or all
of the Underlying Securities is consummated.
"Call Notice": As defined in Section 1.1(a)(i) hereof.
"Call Price": For each related Call Date, (i) in the case of the Class
A-1 Certificates, 100% of the outstanding Certificate Principal Balance
of the Class A-1 Certificates being purchased pursuant to the exercise of
the Call Warrants, plus any accrued and unpaid interest on such amount to
but excluding the Call Date and (ii) in the case of the Class A-2
Certificates, present value of all amounts that would otherwise have been
payable on the Class A-2 Certificates being purchased pursuant to the
exercise of the Call Warrants for the period from the related Call Date
to the Final Scheduled Distribution Date using a discount rate of 9.00%
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per annum, assuming no delinquencies, deferrals, redemptions or
prepayments on the Underlying Securities shall occur after the related
Call Date.
"Call Warrant": As defined in the recitals.
"Called Certificates": As defined in Section 1.1(b) hereof.
"Called Underlying Securities": As defined in Section 1.1(b) hereof.
"Closing Date": July 30, 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.
"QIB": As defined in Section 3.2 hereof.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. and any successor thereto.
"Resale Restriction Termination Date": As defined in Section 3.2 hereof.
"Responsible Officer": As defined in the Trust Agreement.
"Rule 144A": As defined in Section 3.2.
"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 recitals, or any successor thereto under the
Trust Agreement.
"Warrant Agent": As defined in the recitals, or any successor thereto
under this Warrant Agent Agreement.
"Warrant Agent Agreement": As defined in the recitals.
"Warrant Holder": As defined in Section 1.1(a) hereof.
ARTICLE V
WARRANT AGENT
Section 5.1 Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of the Call
Warrants in reliance upon any instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document in good faith believed by it
to be genuine and to be signed, executed and, where necessary, verified and
acknowledged, by the proper Person or Persons.
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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 such persons do so in full compliance with all applicable
laws.
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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 competent jurisdiction
for the appointment of such a successor. Any successor to the Warrant
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Agent appointed hereunder must be rated in one of the four highest rating
categories by the Rating Agencies. Any entity which may be merged or
consolidated with or which shall otherwise succeed to substantially all of the
trust or agency business of the Warrant Agent shall be deemed to be the
successor Warrant Agent without any further action.
Section 5.4 Warrant Agent Transfer Fee. The Warrant Agent will assess
a fee of $50.00 upon the issue of any new Call Warrant, such fee to be assessed
upon the new Call Warrant Holder.
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 traded 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;
provided, however that no
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amendment altering the timing or amount of any payment of the Call Price shall
be effected without the consent of each Warrant Holder; or (ii) to evidence
and provide for the acceptance of appointment hereunder of a Warrant Agent
other than U.S. Bank Trust National Association.
(b) Without limiting the generality of the foregoing, the
Call Warrants may also be modified or amended from time to time by
the Depositor, the Trustee and the Warrant Agent with the consent of
Warrant Holders of 66-2/3% of each of the Call Warrants related to
the Class A-1 Certificates and the Call Warrants related to the
Class A-2 Certificates, upon receipt of an opinion of counsel
satisfactory to the Warrant Agent that the provisions hereof
(including, without limitation, the following proviso) have 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 Agencies
that such amendment will not result in a downgrading or withdrawal
of its rating of the Certificates; (ii) alter the terms on which
Call Warrants are exercisable or the amounts payable upon exercise
of a Warrant without the consent of the holders of Certificates
evidencing not less than 100% of the aggregate Voting Rights of such
affected Certificates and 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 Agencies. 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.
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Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial
proceeding brought against the Trust, the Trustee or the Warrant Agent with
respect to this Warrant Agent Agreement may be brought in any court of
competent jurisdiction in the County of New York, State of New York or of the
United States of America for the Southern District of New York and, by
execution and delivery of the Call Warrants, the Trustee on behalf of the
Trust and the Warrant Agent (a) accept, generally and unconditionally, the
nonexclusive jurisdiction of such courts and any related appellate court, and
irrevocably agree that the Trust, the Trustee and the Warrant Agent shall be
bound by any judgment rendered thereby in connection with this Warrant Agent
Agreement or the Call Warrants, subject to any rights of appeal, and (b)
irrevocably waive any objection that the Trust, the Trustee or the Warrant
Agent may now or hereafter have as to the venue of any such suit, action or
proceeding brought in such a court or that such court is an inconvenient
forum.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the
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.
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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:
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EXHIBIT C
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
July 30, 2002
U.S. Bank Trust National Association,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation,
as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with its proposed purchase of an aggregate amount of
$55,190,000 notional principal amount of Verizon Global Funding Corp.
Note-Backed Series 2002-16, Class A-2 Certificates (the "Class A-2
Certificates"), the undersigned purchaser (the "Purchaser") confirms that:
(1) Reference is made to the Private Placement Memorandum, dated July 30,
2002, including the schedules, exhibits and annexes, if any, thereto, as
supplemented or amended to the date hereof (the "Memorandum"), relating
to the Class A-2 Certificates. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the
Memorandum. The Purchaser has received a copy of the Memorandum 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
Initial Purchaser, concerning the terms and conditions of the offering
described in the Memorandum. The Purchaser has received and understands
the information discussed above and understands that substantial risks
are involved in an investment in the Class A-2 Certificates. The
Purchaser represents that, in making its investment decision to acquire
the Class A-2 Certificates, the Purchaser has not relied on
representations, warranties, opinions, projections, financial or other
information or analysis, if any, supplied to it by any person or entity,
including the Initial Purchaser, the Depositor or the Trustee or any of
their affiliates, except as expressly contained in the Memorandum and in
the other written information, if any, discussed above. The Purchaser
acknowledges that it has read and agreed to the matters stated on pages
(S-2) through (S-4) of such Memorandum and the information under the
heading "Transfer Restrictions". 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 Class A-2
Certificates, and the Purchaser is able to bear the substantial economic
risks of such an investment. The Purchaser has relied upon its own tax,
legal
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and financial advisors in connection with its decision to purchase
the Class A-2 Certificates.
(2) FIRST The Purchaser (A) is a "Qualified Institutional Buyer" (as defined
in Rule 144A under the Securities Act of 1933, as amended (the "1933
Act")) and (B) is acquiring the Class A-2 Certificates for its own
account or for the account of an investor of the type described in
clause (A) above as to each of which the Purchaser exercises sole
investment discretion. The Purchaser is purchasing the Class A-2
Certificates 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 Class A-2 Certificates 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 Class A-2 Certificate, such resale, pledge or
other transfer must comply with the provisions of Section 3(e) of the
Series Supplement relating to the Class A-2 Certificates and (ii) it
will, and each subsequent holder will be required to, notify any
purchaser of any Class A-2 Certificate from it of the resale
restrictions referred to in clause (i) above.
(4) The Purchaser understands that each of the Class A-2 Certificates bear a
legend substantially to the following effect, unless otherwise agreed by
the Depositor and the Trustee:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER SUCH ACT IS IN
EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT. THE
CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED HEREIN OR IN THE SERIES
SUPPLEMENT."
(5) The Purchaser understands that no subsequent transfer of the Class A-2
Certificates is permitted unless (A) such transfer is of a Class A-2
Certificate with the applicable minimum denomination and (B) the
Purchaser causes the proposed transferee to provide to the Depositor and
the Trustee, such documentation as may be required pursuant to Section
3(e) of the Series Supplement, including if required a letter
substantially in the form hereof.
(6) The Purchaser is a person or entity (a "Person") who is either
A. (1) a citizen or resident of the United States, (2) a corporation,
partnership or other entity organized in or under the laws of the
United States or any political subdivision thereof, or (3) an estate
the income of which is includible in gross income for federal income
tax purposes regardless of source, or (4) a trust if a court within
the United
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States is able to exercise primary supervision of the administration
of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, or
B. a Person not described in (A), whose ownership of such Class A-2
Certificate is effectively connected with such Person's conduct of a
trade or business within the United States within the meaning of the
Internal Revenue Code of 1986, as amended (the "Code"), and its
ownership of any interest in such Class A-2 Certificate will not
result in any withholding obligation with respect to any payments
with respect to the Class A-2 Certificates by any Person (other than
withholding, if any, under Section 1446 of the Code), or
C. a Person not described in (A) or (B) above, who is not a Person: (1)
that owns, directly or indirectly, 10% or more of the total combined
voting power of all classes of stock in the Underlying Securities
Issuer entitled to vote, (2) that is a controlled foreign
corporation related to the Underlying Securities Issuer within the
meaning of Section 864(d)(4) of the Code, or (3) that is a bank
extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business.
The Purchaser agrees that (I) if it is a Person described in clause (A)
above, it will furnish to the Depositor and the Trustee a properly
executed IRS Form W-9, and (II) if it is a Person described in clause
(B) above, it will furnish to the Depositor and the Trustee a properly
executed IRS Form W-8ECI, and (III) if it is a Person described in
clause (C) above, it will furnish to the Depositor and the Trustee a
properly executed IRS Form W-8BEN (or, if the Purchaser is treated as a
partnership for federal income tax purposes, a properly executed IRS
Form W-8IMY with appropriate certification for all partners or members
attached). The Purchaser also agrees that it will provide a new IRS form
upon the expiration or obsolescence of any previously delivered form,
and that it will provide such other certifications, representations or
Opinions of Counsel as may be requested by the Depositor and the
Trustee.
(7) The Purchaser agrees that if at some time in the future it wishes to
transfer or exchange any of the Class A-2 Certificates, it will not
transfer or exchange any of the Class A-2 Certificates unless such
transfer or exchange is in accordance with the terms of the Series
Supplement and other documents applicable to the Class A-2 Certificates.
The Purchaser understands that any purported transfer of the Class A-2
Certificates (or any interest therein) in contravention of any of the
restrictions and conditions in the agreements, as applicable, shall be
void, and the purported transferee in such transfer shall not be
recognized by any Person as a holder of such Class A-2 Certificates, for
any purpose.
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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:
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