Exhibit 4.1
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
BOEING SECURITIES-BACKED SERIES 2003-16 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
CORPORATE BACKED TRUST CERTIFICATES
Dated as of October 28, 2003
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.........................................9
Section 4. Trust Certificates...........................................................12
Section 5. Distributions................................................................12
Section 6. Trustee's Fees...............................................................19
Section 7. Optional Call; Optional Exchange.............................................19
Section 8. Notices of Events of Default.................................................24
Section 9. Miscellaneous................................................................25
Section 10. Governing Law................................................................28
Section 11. Counterparts.................................................................28
Section 12. Termination of the Trust.....................................................28
Section 13. Sale of Underlying Securities; Optional Exchange.............................29
Section 14. Amendments...................................................................29
Section 15. Voting of Underlying Securities, Modification of Indenture...................29
Section 16. Additional Depositor Representation..........................................30
SCHEDULE I SERIES 2003-16 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A-1 FORM OF TRUST CERTIFICATE CLASS A-1
EXHIBIT A-2 FORM OF TRUST CERTIFICATE CLASS A-2
EXHIBIT A-3 FORM OF TRUST CERTIFICATE CLASS A-3
EXHIBIT B FORM OF WARRANT AGENT AGREEMENT
EXHIBIT C FORM OF INVESTMENT LETTERS
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SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
BOEING SECURITIES-BACKED SERIES 2003-16 TRUST
SERIES SUPPLEMENT, Boeing Securities-Backed Series 2003-16
Trust, dated as of October 28, 2003 (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 described on Schedule I attached hereto, 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 Boeing Securities-Backed
Series 2003-16 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
not applicable to this Series.) Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Standard Terms.
"6.125% Underlying Securities" shall mean the $17,628,000
aggregate principal amount of 6.125% Notes due February 15, 2033 issued by the
Underlying Securities Issuer as set forth in Schedule I attached hereto
(subject to Section 3(d) hereof).
"6.625%Underlying Securities" shall mean the $7,725,000
aggregate principal amount of 6.625% Debentures due February 15, 2038 issued
by the Underlying Securities Issuer as set forth in Schedule I attached hereto
(subject to Section 3(d) hereof).
"Accredited Investor" shall mean a Person that qualifies as an
"accredited investor" within the meaning of Rule 501(a) under the Securities
Act.
"Available Funds" shall have the meaning specified in the
Standard Terms.
"Business Day" shall mean any day other than a Saturday or a
Sunday, or a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to be closed.
"Calculation Agent" shall mean Xxxxxx ABS Corporation or such
affiliate thereof as shall be designated by Xxxxxx ABS Corporation.
"Call Date" shall mean any Business Day that any holder of Call
Warrants designates as a Call Date occurring (i) on or after October 28, 2008,
(ii) after the Underlying Securities Issuer announces that it will redeem,
prepay or otherwise make an unscheduled payment on any of the Underlying
Securities, (iii) after the Trustee notifies the Certificateholders of any
proposed sale of the Underlying Securities pursuant to the provisions of
Section 5(d) or 5(h) of this Series Supplement or (iv) on the date on which
the Underlying Securities Issuer or affiliate thereof consummates a tender
offer for some or all of the Underlying Securities.
"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, (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 7.75% per annum and
assuming no delinquencies, deferrals, redemptions or prepayments on the
Underlying Securities shall occur after the related Call Date and, (iii) in
the case of the Class A-3 Certificates, $0.
"Call Warrants" shall have the meaning specified in Section 3
hereof.
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"Called Certificates" shall have the meaning specified in
Section 1.1 (b) of the Warrant Agent Agreement.
"Certificate Principal Balance" shall have the meaning
specified in Section 3 hereof.
"Certificates" shall have the meaning specified in Section 3
hereof.
"Class A-1 Allocation" shall mean, with respect to any of the
Underlying Securities, the sum of the present values of any unpaid interest
and principal due or to become due on the Class A-1 Certificates in respect of
the payments to be made on such Underlying Securities, using a discount rate
of 6.25% and assuming that such interest and principal payments were paid when
due and that the related Underlying Securities were not redeemed, prepaid or
liquidated 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 6.25% per annum) of any unpaid amounts due or to become due on
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.
"Class A-3 Allocation" shall mean the sum of the present values
(discounted at the rate of 6.25% per annum) of any unpaid amounts due or to
become due on the Class A-3 Certificates (assuming that the Class A-3
Certificates were paid when due and were not redeemed or prepaid prior to
their stated maturity).
"Class A-3 Certificates" shall mean the Certificates, in the
form attached hereto as Exhibit A-3, 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.
"Certificates" shall mean the certificates in the form attached
hereto as Exhibit A, to be issued by the Trust representing a proportionate
undivided beneficial ownership interest in certain distributions to be made by
the Trust and having the characteristics described herein and in the
Certificates.
"Closing Date" shall mean October 28, 2003.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Collection Period" shall mean, (i) with respect to each August
Distribution Date, the period beginning on the day after the February
Distribution Date of such year and ending on such August Distribution Date,
inclusive, and, (ii) with respect to each February Distribution Date, the
period beginning on the day after the August Distribution Date of the prior
year and ending on such February 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 February 15 and August 15 of
each year (or if any such date is not a Business Day, the next succeeding
Business Day), commencing in February, 2004; and ending on the earlier of the
Final Scheduled Distribution Date and any date on which all Underlying
Securities are redeemed, prepaid or liquidated in whole for any reason other
than their maturity.
"ERISA" shall mean 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 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 either of the Indentures.
"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 the Distribution
Date in February, 2038.
"Indentures" shall mean the indentures between the Underlying
Securities Issuer and the Underlying Securities Trustee, pursuant to which the
Underlying Securities were issued, as supplemented.
"Liquidation Price" shall mean the price at which the Trustee
sells the Underlying Securities.
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
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"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.
"Prospectus Supplement" shall mean the Prospectus Supplement,
dated October 15, 2003, relating to the Class A-1 Certificates.
"QIB" shall have the meaning set forth in Section 3(e) hereof.
"Rating Agencies" 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.
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"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.
"SEC Reporting Failure" shall mean the date determined by the
Depositor within a reasonable time following the Underlying Securities
Issuer's either (x) having stated in writing that it intends permanently to
cease filing periodic reports required under the Exchange Act or (y) having
failed to file all required periodic reports for one full year.
"Securities Act" shall mean the United States Securities Act of
1933, as amended.
"Securities Intermediary" shall mean initially, U.S. Bank Trust
National Association.
"Series" shall mean the Boeing Securities-Backed Series
2003-16.
"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.
"UCC" shall mean the Uniform Commercial Code as in effect in
the applicable jurisdiction.
"Underlying Securities" shall mean the 6.125% Underlying
Securities and the 6.625% Underlying Securities, collectively.
"Underlying Securities Issuer" shall mean The Boeing Company,
and any successors in respect of the Underlying Securities.
"Underlying Securities Trustee" shall mean JPMorgan Chase Bank
(successor in interest to The Chase Manhattan Bank).
"Underwriters" shall mean Xxxxxx Brothers Inc., RBC Xxxx
Xxxxxxxx Inc. and Xxxxxx, Xxxxxxxx & Company, Incorporated.
"Voting Rights" shall be allocated to the holders of the Class
A-1 Certificates, the holders of the Class A-2 Certificates and the holders of
the Class A-3 Certificates. The percentage of the aggregate Voting Rights
allocated to each class of Certificates will be determined by dividing (x) the
present value (discounted at the rate of 6.25% per annum) of any
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unpaid amounts due or to become due on such class of Certificates by (y) the
aggregate present value (discounted at the rate of 6.25% per annum) of any
unpaid amounts due or to become due on all of the Certificates. 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. The Class A-2 Voting Rights will be allocated among
the Class A-2 Certificateholders in proportion to the then outstanding
notional amounts of their respective Certificates. The Class A-3 Voting Rights
will be allocated among Class A-3 Certificateholders in proportion to the then
unpaid Certificate Principal Balances of their respective Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust National
Association.
"Warrant Agent Agreement" shall mean that certain Warrant Agent
Agreement, dated as of the date hereof, between the Depositor and U.S. Bank
Trust National Association, as Warrant Agent and as Trustee, as the same may
be amended from time to time.
"Warrant Holder" shall mean the holder of a Call Warrant.
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Calculation Agent"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
"Cut-off Date"
"Eligible Expense"
"Eligible Investments"
"Exchange Rate Agent"
"Fixed Pass-Through Rate"
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"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"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
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Section 3. Designation of Trust and Certificates. The Trust
created hereby shall be known as the "Corporate Backed Trust Certificates,
Boeing Securities-Backed Series 2003-16 Trust." The Certificates evidencing
certain undivided ownership interests therein shall be known as "Corporate
Backed Trust Certificates, Boeing Securities-Backed Series 2003-16." The
Certificates shall consist of the Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates (together, the "Certificates").
The Trust is also issuing call warrants with respect to the Certificates
("Call Warrants").
(a) The Class A-1 Certificates shall be held through the Depository in
book-entry form and shall be substantially in the form attached hereto as
Exhibits A-1. The Class A-2 Certificates and Class A-3 Certificates shall
initially be held through the Depository in book-entry form and, as set forth
in Section 3(e) below, shall be held subsequent to the Closing Date in
physical form or through the Depository in book-entry form and shall be
substantially in the forms attached hereto as Exhibit A-2 and Exhibit A-3. 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 $77,250 and
integral multiples of $1 in excess thereof, and the Class A-3 Certificates
shall be issued in minimum principal denominations of $88,250 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 shall consist initially of 1,000,000
Certificates having an initial aggregate certificate principal balance (the
"Certificate Principal Balance") of $25,000,000. The Class A-2 Certificates
are interest-only Certificates and shall have an initial aggregate notional
amount equal to the principal amount of 6.625% Underlying Securities held by
the Trust. The Class A-3 Certificates are principal-only Certificates and
shall have an initial Certificate Principal Balance of $353,000.
(c) The holders of the Class A-1 Certificates will be entitled to
receive on each Distribution Date the interest, if any, received on the
Underlying Securities, to the extent necessary to pay interest at a rate of
6.25% 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
6.625% Underlying Securities, to the extent necessary to pay interest at a
rate of 0.375% per annum on the outstanding notional amount of the Class A-2
Certificates, which notional amount shall at all times be equal to the
outstanding principal amount of 6.625% Underlying Securities held by the
Trust. The Class A-3 Certificates shall not bear interest. On the Distribution
Date occurring in February 2004, the Trustee shall cause the Trust to pay to
the Depositor the amount of interest accrued and paid on the Underlying
Securities from August 15, 2003, to but not including the Closing Date;
provided, however, that in the event an Optional Exchange Date shall occur
prior to the Distribution Date in February 2004, 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 will have a claim for such amount.
If Available Funds are insufficient to pay such amount, the Trustee will pay
the
9
Depositor its pro rata share, based on the ratio the amount owed to the
Depositor bears to all amounts owed on the Certificates in respect of accrued
interest, of any proceeds from the recovery on the Underlying Securities.
(d) The Depositor may sell to the Trustee additional Underlying
Securities on any date hereafter upon at least three 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. Such additional Underlying
Securities shall consist of both 6.125% Underlying Securities and 6.625%
Underlying Securities in the same proportion as exists in the Trust as of the
date hereof. 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, Class A-2 Certificates and Class A-3
Certificates in the same proportions to the additional Underlying Securities
and to each other as exists with respect to the Certificates and Underlying
Securities on the Closing Date. The Trust shall also issue additional Call
Warrants with respect to such additional Certificates. Any such additional
Class A-1 Certificates, Class A-2 Certificates and Class A-3 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 or Class A-3 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 or
Class A-3 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 Class A-3 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 (including transfers to
Accredited Investors), 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 or Class A-3 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 or Class A-3 Certificates to
be transferred substantially in the form of Exhibit C or Exhibit D hereto and
in the event the resale, assignment or transfer shall involve the Class A-2
Certificates or Class A-3 Certificates then
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being held in physical form, such Class A-2 Certificates or Class A-3
Certificates shall be delivered to the Trustee for cancellation and the
Trustee shall (i) instruct the Depository to increase the aggregate notional
amount of the Class A-2 Certificates held in book-entry form by an amount
equal to the aggregate notional amount of the Class A-2 Certificates so
resold, assigned or transferred and to issue a beneficial interest in such
global Class A-2 Certificates to such transferee or (ii) shall instruct the
Depository to increase the aggregate principal balance of the Class A-3
Certificates so resold, assigned or transferred and to issue a beneficial
interest in such global Class A-3 Certificates to such transferee. Prior to
any offer, resale, assignment or transfer of any Class A-2 Certificates or any
Class A-3 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) and,
in the event any such Class A-2 Certificate or Class A-3 Certificate shall
then be held in book-entry form and such resale, assignment or transfer shall
be to an Accredited Investor that is not a QIB, the Trustee shall instruct the
Depository to decrease the aggregate notional amount of the Class A-2
Certificates held in book-entry form or decrease the aggregate principal
balance of the Class A-3 Certificates held in book-entry form and the Trustee
shall authenticate and deliver one or more Class A-2 Certificates or Class A-3
Certificates in physical form in an aggregate notional amount equal to the
amount of such Class A-2 Certificates or Class A-3 Certificates resold,
assigned or transferred. In addition to the foregoing, each prospective
transferee of any such Class A-2 Certificates or Class A-3 Certificates 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 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 and Class A-3 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 and Class A-3 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 or Class A-3
Certificates prior to the Resale Restriction
Termination Date, such 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
(including any transfer to an Accredited Investor),
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 or
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Class A-3 Certificates from it of the resale
restrictions referred to in clause (A) above.
(f) The Class A-2 Certificates and the Class A-3 Certificates will,
unless otherwise agreed by the Depositor and the Trustee, bear a legend
substantially to the following effect:
"THIS 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 CERTIFICATE REPRESENTED
HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE
SERIES SUPPLEMENT.
EACH PURCHASER OF THIS 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
(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 5(b), 5(c) 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,
(i) in the case of interest payments received on the
6.625% Underlying Securities, to the holders of the Class A-1
Certificates interest calculated at the rate of 6.25% per annum
on the outstanding principal
12
amount of the 6.625% Underlying Securities held by the Trust,
pro rata in proportion to their entitlement thereto and to the
holders of the Class A-2 Certificates, interest, accrued and
unpaid thereon, pro rata in proportion to their entitlements
thereto; and
(ii) in the case of interest payments received on the
6.125% Underlying Securities, to the holders of the Class A-1
Certificates interest calculated at the rate of 6.25% per annum
on an amount equal to (x) the outstanding principal amount of
the 6.125 Underlying Securities deposited in the Trust on the
Closing Date, minus (y) the sum of (i) the principal payments
made to date (without giving effect to principal payments on
such date) on the 6.125% Underlying Securities and (ii) the
outstanding principal balance of the Class A-3 Certificates,
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,
(i) in the case of principal payments on 6.625%
Underlying Securities, to the holders of the Class A-1
Certificates, and
(ii) in the case of principal payments on the 6.125%
Underlying Securities, 98% to the holders of the Class A-1
Certificates and 2% to the holders of the Class A-3
Certificates, in an aggregate amount not to exceed the
outstanding Certificate Principal Balance of the Class A-1
Certificates and Class A-3 Certificates.
(iii) any Available Funds remaining in the Certificate
Account after the payments set forth in clauses 5(a)(i) and
5(a)(ii) above shall be paid to the Trustee as reasonable
compensation for services rendered to the Depositor, 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, the Class
A-2 Certificates and the Class A-3 Certificates in an amount, with
respect to each such Class of Certificates determined by multiplying (x)
the amount of such remainder by (y) the percentage obtained by dividing
(a) the present value (discounted at the rate of 6.25% per annum) of any
unpaid amounts due or to become due on such class of Certificates by (b)
the aggregate present value (discounted at the rate of 6.25% per annum)
of any unpaid amounts due or to become due on all of the Certificates.
The Class A-2 Certificates are not entitled to distributions of
principal.
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The Class A-3 Certificates are not entitled to distributions of
interest.
Any funds received in respect of the Underlying Securities from the Underlying
Securities Issuer shall be included in Available Funds on the related
Distribution Date or Special Distribution Date. Any portion of the Available
Funds (1) that does not constitute principal of, or interest on, the
Underlying Securities, (2) that is not received in connection with a tender
offer, redemption, prepayment or liquidation of any Underlying Securities and
(3) for which allocation by the Trustee is not otherwise contemplated by this
Series Supplement, shall be remitted by the Trustee to the Depositor.
(b) Notwithstanding the foregoing, if any of the Underlying Securities
are redeemed, prepaid or liquidated in whole or in part for any reason other
than due to the occurrence of an Event of Default, an SEC Reporting Failure,
or at their maturity, the Trustee shall apply Available Funds in the manner
described in Section 5(g) in the following order of priority:
(i) In the event of any redemption, prepayment or liquidation of
the 6.625% Underlying Securities, Available Funds will be allocated on
the date of receipt (1) to the Trustee, reimbursement for any
extraordinary expenses incurred by the Trustee in accordance with the
Trust Agreement pursuant to instructions of not less than 100% of the
Certificateholders, (2) to the holders of the Class A-1 Certificates,
an amount equal to the principal amount of the 6.625% Underlying
Securities so redeemed, prepaid or liquidated, plus accrued and unpaid
interest on the amount of Class A-1 Certificates so redeemed, prepaid
or liquidated, (3) 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 6.25% per annum, assuming no delinquencies,
redemptions or prepayments on the 6.625% Underlying Securities, (4) to
the Trustee, as reasonable compensation for services rendered to the
Depositor, any remainder up to $1,000 and (5) any remainder shall be
allocated to the holders of the Class A-1 Certificates and the Class
A-2 Certificates in accordance with the ratio of the Class A-1
Allocation with respect to the 6.625% Underlying Securities to the
Class A-2 Allocation; and
(ii) In the event of any redemption, prepayment or liquidation of
the 6.125% Underlying Securities, Available Funds will be allocated on
the date of receipt (1) to the Trustee, reimbursement for any
extraordinary expenses incurred by the Trustee in accordance with the
Trust Agreement pursuant to instructions of not less than 100% of the
Certificateholders, (2) to the Class A-1 Certificates, an amount equal
to any accrued and unpaid interest at the rate of 6.25% per annum on an
amount equal to (x) the outstanding principal amount of the 6.125%
Underlying Securities deposited in the Trust on the Closing Date, minus
(y) the sum of (i) the principal payments made to date (without giving
effect to principal payments on such date) on the 6.125% Underlying
Securities and (ii) the outstanding principal balance of the Class A-3
Certificates; (3) an aggregate amount not to exceed the outstanding
principal amounts of the Class A-1 Certificates and the Class A-3
Certificates, paid 98% to the holders of the Class A-1 Certificates and
2% to the holders of the Class A-3 Certificates; (4) to the Trustee, as
reasonable compensation for services rendered to the Depositor, any
remainder up to
14
$1,000 and (5) the remainder, 98% to the holders of the Class A-1
Certificates and 2% to the holders of the Class A-3 Certificates.
(c) Notwithstanding the foregoing, if any of the Underlying Securities
are redeemed, prepaid or liquidated in whole or in part due to the occurrence
of an Event of Default:
(i) any money or other property received in respect of the 6.625%
Underlying Securities will be allocated to the holders of the Class A-1
Certificates and the holders of the Class A-2 Certificates, on a pro
rata basis, based on the ratio of the Class A-1 Allocation with respect
to the 6.625% Underlying Securities to the Class A-2 Allocation; and
(ii) any money or other property received in respect of the 6.125%
Underlying Securities will be remitted to the holders of the Class A-1
Certificates and the holders of the Class A-3 Certificates, on a pro
rata basis, based on the ratio of the Class A-1 Allocation with respect
to the 6.125% Underlying Securities to the Class A-3 Allocation.
(d) 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(c) 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.
(e) If the Trustee receives non-cash property in respect of any of the
Underlying Securities as a result of a payment default on the Underlying
Securities (including from the sale thereof), the Trustee will promptly give
notice to the Depository, or for any Certificates which are not then held by
DTC or any other depository, directly to the registered holders of the
Certificates then outstanding and unpaid and to the Warrant Agent. Such notice
shall state that the Trustee shall, and the Trustee shall, not later than 30
days after the receipt of such property, allocate and distribute such property
to the holders of Class A-1 Certificates, on the one hand and the holders of
the Class A-2 Certificates or the Class A-3 Certificates on the other hand
(after deducting the costs incurred in connection therewith) in accordance
with Section 5(c) 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 with respect to
either 6.625% Underlying Securities and 6.125% Underlying Securities, 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, pro rata, in proportion to their entitlement
thereto. With respect to the 6.125% Underlying Securities, the Certificate
Principal Balance of the Class A-3 Certificates shall be reduced, pro rata,
among all Class A-3 Certificates, in proportion to their entitlement thereto.
With respect to the 6.625% Underlying Securities, the outstanding notional
amounts of the Class A-2 Certificates shall be reduced, pro
15
rata, among all Class A-2 Certificateholders, by an amount equal
to the amount by which the principal amount of the 6.625% Underlying
Securities is reduced.
(f) 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.
(g) 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, an SEC Reporting
Failure or at their maturity, the Trustee will distribute any such amounts
received in accordance with the provisions of this Section 5 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.
(h) Notwithstanding Section 3.12 of the Standard Terms, upon the
occurrence of an SEC Reporting Failure, the Depositor shall instruct the
Trustee within a reasonable time 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,
(x) any remainder in respect of the 6.625% Underlying Securities will be
allocated to the holders of the Class A-1 Certificates and the holders of the
Class A-2 Certificates, on a pro rata basis, based on the ratio of the Class
A-1 Allocation with respect to the 6.625% Underlying Securities to the Class
A-2 Allocation and (y) any remainder in respect of the 6.125% Underlying
Securities will be remitted to the holders of the Class A-1 Certificates and
the holders of the Class A-3 Certificates, on a pro rata basis, based on the
ratio of the Class A-1 Allocation with respect to the 6.125% Underlying
Securities to the Class A-3 Allocation.
(i) (i) Within five Business Days (or such longer period as shall be
acceptable to the Trustee) of receipt of notice of an SEC Reporting
Failure, any Class A-1 Certificateholder, Class A-2
Certificateholder or Class A-3 Certificateholder may direct the
Trustee to distribute all or a portion of such Certificateholder's
pro rata share of the 6.625% Underlying Securities and 6.125%
Underlying Securities, as applicable, to it, in lieu of any
proceeds received upon liquidation of any of the Underlying
Securities. The respective shares of the Class A-1
Certificateholders, Class A-2 Certificateholders and Class A-3
Certificateholders in such Underlying Securities shall be
determined by allocating the portion of the principal amount
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remaining after reimbursement of the Trustee for any Extraordinary
Trust Expenses approved by 100% of the Certificateholders (x) in
respect of the 6.625% Underlying Securities to the Class A-1
Certificateholders and the Class A-2 Certificateholders, on a pro
rata basis, based on the ratio of the Class A-1 Allocation with
respect to the 6.625% Underlying Securities to the Class A-2
Allocation and (y) in respect of the 6.125% Underlying Securities
to the Class A-1 Certificateholders and the Class A-3
Certificateholders, on a pro rata basis, based on the ratio of the
Class A-1 Allocation with respect to the 6.125% Underlying
Securities to the Class A-3 Allocation. As between the Class A-1
Certificateholders, the share of each of the Class A-1
Certificateholders in any of the Underlying Securities to be
distributed shall be determined based on the then unpaid
Certificate Principal Balances of its Class A-1 Certificates. As
between the Class A-3 Certificateholders, the share of each Class
A-3 Certificateholder in the 6.125% Underlying Securities to be
distributed shall be determined based on the then unpaid
Certificate Principal Balance of its Class A-3 Certificates . As
between the Class A-2 Certificateholders, the share of each Class
A-2 Certificateholder in the 6.625% Underlying Securities to be
distributed shall be determined based on the then outstanding
notional amounts of its Certificates.
(ii) Within five Business Days (or such longer period as shall be
acceptable to the Trustee) of receipt of notice of an Event of
Default or any other liquidation of any of the Underlying
Securities by the Trustee, any Class A-2 Certificateholder or Class
A-3 Certificateholder may direct the Trustee to distribute all or a
portion of such Certificateholder's pro rata share (as determined
by the Calculation Agent in accordance with this Section 5(i)) of
such Underlying Securities to it, in lieu of any proceeds received
upon liquidation of such Underlying Securities. Upon the occurrence
of an Event of Default, (x) in respect of the 6.125% Underlying
Securities, each Class A-3 Certificateholder's pro rata share of
such 6.125% Underlying Securities shall be determined by allocating
the principal amount of such 6.125% Underlying Securities to the
Class A-1 Certificateholders and the Class A-3 Certificateholders
in accordance with the ratio of the Class A-1 Allocation with
respect to the 6.125% Underlying Securities to the Class A-3
Allocation and (y) in respect of the 6.625% Underlying Securities,
each Class A-2 Certificateholders pro rata share of such 6.625%
Underlying Securities shall be determined by allocating the
principal amount of such 6.625% Underlying Securities to the Class
A-1 Certificateholders and Class A-2 Certificateholders in
accordance with the ratio of the Class A-1 Allocation with respect
to the 6.625% Underlying Securities to the Class A-2 Allocation.
The pro rata share of each of the Class A-2 Certificateholders in
the 6.625% Underlying Securities to be distributed shall be
determined based on the then outstanding notional amounts of their
respective Certificates. The pro rata share of each of the Class
A-3 Certificateholders in the 6.125% Underlying Securities to be
distributed shall be determined based on the then outstanding
Certificate Principal Balance of their respective Certificates. In
the event of a liquidation of any of the 6.625% Underlying
Securities by the Trustee for any reason other than upon the
occurrence of an Event of Default or an SEC Reporting Failure, each
Class A-2 Certificateholder's pro rata share of such Underlying
Securities shall be equal to the lesser of (1) a pro rata share
(based on the proportion of the aggregate notional amount of such
holder's Class
17
A-2 Certificates to the outstanding aggregate notional amount of
the Class A-2 Certificates) of the principal amount of such
Underlying Securities remaining after the Trustee has allocated
Available Funds in accordance with Sections 5(b)(i) and 5(b)(ii)
hereof and (2) the present value of all amounts that would
otherwise have been payable on such Class A-2 Certificate for the
period from the date of such redemption or prepayment to the Final
Scheduled Distribution Date using a discount rate of 6.25% per
annum, assuming no delinquencies, deferrals, redemptions or
prepayments on such Underlying Securities. In the event of a
liquidation of any of the 6.125% Underlying Securities by the
Trustee for any reason other than upon the occurrence of an Event
of Default or an SEC Reporting Failure, each Class A-3
Certificateholder's pro rata share of such Underlying Securities
shall be equal to the pro rata share (based on the proportion of
the aggregate principal balance of such holder's Class A-3
Certificates to the outstanding Certificate Principal Balance of
the Class A-3 Certificates) of the principal balance of such
Underlying Securities remaining after the Trustee has allocated
Available Funds in accordance with Sections 5(b)(i) and 5(b)(ii)
hereof.
(iii) The amount requested to be distributed pursuant to Section
5(i)(i) or 5(i)(ii) must be in an even multiple of the minimum
denomination of the Underlying Securities and may not exceed such
requesting Certificateholder's pro rata share (as determined by the
Calculation Agent in accordance with this Section 5(i)) of the
Underlying Securities. Upon receipt of any such direction from a
Class A-1 Certificateholder, Class A-2 Certificateholder or Class
A-3 Certificateholder, the Trustee shall not liquidate the
requested portion of Underlying Securities and instead shall cause
such Underlying Securities to be distributed to the requesting
Class A-1 Certificateholder, Class A-2 Certificateholder or Class
A-3 Certificateholder; provided, that the Trustee shall not cause
the distribution of any Underlying Securities to any Class A-1
Certificateholder, Class A-2 Certificateholder or Class A-3
Certificateholder unless, but for the requesting Class A-1
Certificateholder, Class A-2 Certificateholder or Class A-3
Certificateholder's giving direction in accordance with this
Section 5(i), such Underlying Securities would be liquidated as
otherwise provided in this Agreement. Any portion of any Class A-1
Certificateholder's, Class A-2 Certificateholder's or Class A-3
Certificateholder's pro rata share of the Underlying Securities
that is not distributed, based on the failure to meet the minimum
denomination requirements or otherwise, shall be sold in accordance
with the provisions of Section 5(d) or 5(h) hereof, as applicable
and the proceeds thereof distributed to such Class A-1
Certificateholder, Class A-2 Certificateholder or Class A-3
Certificateholder.
(iv) All decisions and determinations of the Calculation Agent
pursuant to this Section 5(i) shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Certificateholders.
Section 6. Trustee's Fees.
18
(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, the Class A-2
Certificates and the Class A-3 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, Class A-2
Certificates, Class A-3 Certificates and the related Call Warrants, if Call
Warrants related to such Certificates are outstanding, may exchange a fixed
percentage of each class of Certificates and, if applicable, the outstanding
Call Warrants related to such Certificates, for a distribution of 6.125%
Underlying Securities and 6.625% Underlying Securities representing the same
fixed percentage of the 6.125% Underlying Securities and the same fixed
percentage of the 6.625% Underlying Securities. On any Call Date, any Warrant
Holder may exchange Called Certificates representing a fixed percentage of
each class of Certificates for a distribution of 6.125% Underlying Securities
and 6.625% Underlying Securities representing the same fixed percentage of the
6.125% Underlying Securities and the same fixed percentage of the 6.625%
Underlying Securities; provided, however, 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. Notwithstanding the foregoing, following the consummation of any
exchange described above, the remaining 6.125% Underlying Securities and
6.625% Underlying Securities held by the Trust must be in the same proportion
to each other as exists on the date hereof.
(b) The following conditions shall apply to any Optional Exchange.
(i) A notice specifying the number of Certificates being
surrendered and the Optional Exchange Date shall be delivered to the
Trustee no less than 5 days (or such shorter period acceptable to the
Trustee) but not more than 30 days before the Optional Exchange Date;
provided, however, that for an Optional Exchange to occur on a Call
19
Date, unless otherwise specified therein, the Call Notice shall be
deemed to be the notice required hereunder.
(ii) Certificates and, if applicable, the Call Warrants, shall be
surrendered to the Trustee no later than 10:00 a.m. (New York City
time) on the Optional Exchange Date; provided that for an Optional
Exchange to occur on a Call Date, payment of the Call Price to the
Warrant Agent pursuant to Section 1.1(a)(iii) of the Warrant Agent
Agreement shall satisfy the requirement to surrender Certificates.
(iii) The Trustee shall have received an opinion of counsel
stating that the Optional Exchange would not cause the Trust to be
treated as an association or publicly traded partnership taxable as a
corporation for federal income tax purposes.
(iv) If the Certificateholder is the Depositor or any Affiliate of
the Depositor, (1) the Trustee shall have received a certification from
the Certificateholder that any Certificates being surrendered have been
held for at least six months, and (2) the Certificates being
surrendered may represent no more than 5% (or 25% in the case of
Certificates acquired by the Underwriters but never distributed to
investors) of the then outstanding Certificates.
(v) The Trustee shall not be obligated to determine whether an
Optional Exchange complies with the applicable provisions for exemption
under Rule 3a-7 of the Investment Company Act of 1940, as amended, or
the rules or regulations promulgated thereunder.
(vi) The provisions of Section 4.07 of the Standard Terms shall
not apply to an Optional Exchange pursuant to this Section 7(b). This
Section 7(b) shall not provide any person with a lien against, an
interest in or a right to specific performance with respect to the
Underlying Securities; provided that satisfaction of the conditions set
forth in this Section 7(b) shall entitle the Certificateholder or
Warrant Holder, as applicable, to a distribution thereof.
(vii) In the event such Optional Exchange shall occur prior to the
Distribution Date in February 2004, the Certificateholder 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 August 15,
2003 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.
(viii) In the event that the face amount of 6.125% Underlying
Securities or the face amount of 6.625% Underlying Securities to be
distributed in connection with any Optional Exchange pursuant to
Section 7(a) is not an even multiple of $1,000, such amount shall be
rounded down to the nearest $1,000; provided, however, that the Trustee
shall further adjust the proportionate distribution of 6.125%
Underlying Securities and 6.625% Underlying Securities so that, after
giving effect to such rounding, the remaining Underlying Securities in
the Trust are scheduled to distribute sufficient interest to pay the
20
scheduled interest on the Certificates through the Final Scheduled
Distribution Date. In the event of such a rounding, the aggregate
principal amount of Certificates accepted for exchange shall be reduced
to take into account the effect of such rounding and the
Certificateholders (and, if applicable, the relevant Warrant Holders)
requesting the Optional Exchange shall be issued Certificates in the
amount of the remainder. If such Certificates are Called Certificates,
they may be exchanged for a distribution of Underlying Securities on
any subsequent Call Date on which the other requirements of Section
7(a) are met. For purposes of this provision, in any Optional Exchange
of Certificates for Underlying Securities on a Call Date by two or more
Certificateholders (and, if applicable, the relevant Warrant Holders),
if so instructed irrevocably in writing by all such Certificateholders
(and, if applicable, all such Warrant Holders), the Trustee shall
determine the effects of rounding for purposes of the second preceding
sentence with regard to the aggregate amount of 6.125% Underlying
Securities and the aggregate amount of 6.625% Underlying Securities to
be distributed (rather than each such Certificateholder's (and, if
applicable, Warrant Holder's) individual allotment) and shall round
each Certificateholder's (and, if applicable, Warrant Holder's)
proportionate distribution in accordance with such instructions from
such parties.
(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) [Reserved]
(ii) The Warrant Holder shall have provided a certificate of
solvency to the Trustee.
(iii) Class A-1 Certificates, Class A-2 Certificates and Class A-3
Certificates representing a like percentage of all outstanding Class
A-1 Certificates, Class A-2 Certificates and Class A-3 Certificates
shall be surrendered.
(iv) 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.
(v) 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 or redemption of 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
21
Call Notice at a later date. The Call Price for a call in connection
with a tender offer or redemption shall be deducted from the
proceeds of a tender offer or redemption by the Trust pursuant to
Section 7(g)(iii) or Section 7(h)(iii), as applicable.
(vi) Subject to receipt of the Call Price, the Trustee shall pay
the applicable portion of the Call Price to the Class A-1
Certificateholders, Class A-2 Certificateholders and Class A-3
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.
(vii) The Trustee shall not consent to any amendment or
modification of this Agreement (including the Standard Terms) which
would adversely affect the Warrant Holders (including, without
limitation, any alteration of the timing or amount of any payment of
the Call Price or any other provision of this Agreement in a manner
adverse to the Warrant Holders) without the prior written consent of
100% of the Warrant Holders. For purposes of this clause, no amendment,
modification or supplement required to provide for any purchase by the
Trustee of additional Underlying Securities and authentication and
delivery by the Trustee of additional Certificates and Call Warrants
pursuant to Section 3(d) shall be deemed to adversely affect the
Warrant Holders.
(viii) 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 6.125% Underlying Securities or 6.625% 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. Upon the commencement of a tender offer from the
Underlying Securities Issuer or an affiliate thereof and 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
6.125% Underlying
22
Securities and/or 6.625% Underlying Securities, as applicable, equal to
the amount of such 6.125 Underlying Securities and/or 6.625% 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 the related 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 accordance 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 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.
(h) (i) If the Trustee receives notice of a redemption by the
Underlying Securities Issuer for some or all of the 6.125% Underlying
Securities and/or 6.625% Underlying Securities, the Trustee shall, within
three Business Days, notify the Warrant Agent and forward to the Warrant Agent
copies of all materials received by the Trustee in connection therewith. Any
Warrant Holder that desires to call the related Underlying Securities in
connection with a
23
redemption by the Underlying Securities Issuer shall send a Call Notice to the
Trustee no later than seven Business Days prior to the date such Underlying
Securities are to be redeemed.
(ii) The Call Date and Optional Exchange Date for any exercise of
Call Warrants in connection with a redemption by the Underlying
Securities Issuer shall be deemed to be the Business Day on which such
Underlying Securities are redeemed by the Underlying Securities Issuer.
(iii) The Call Price shall be deducted from the redemption
proceeds and paid to Certificateholders in accordance with Section
7(d)(v), and the excess of the redemption proceeds over the Call Price
shall be paid to the exercising Warrant Holders pro rata in respect to
their proportionate exercises of Call Warrants.
(iv) If fewer than all Underlying Securities are redeemed by the
Underlying Securities Issuer and the amount of Call Warrants exercised
corresponds to a number of Class A-1 Certificates, Class A-2
Certificates and Class A-3 Certificates that could be exchanged in an
Optional Exchange for a principal amount of Underlying Securities that
exceeds the principal amount of Underlying Securities actually
redeemed, then, unless otherwise directed by any exercising Warrant
Holder, (A) the amount of Call Warrants exercised shall be reduced to
an amount that corresponds to a number of Class A-1 Certificates, Class
A-2 Certificates and Class A-3 Certificates that could be exchanged in
an Optional Exchange for the principal amount of Underlying Securities
redeemed by the Underlying Securities Issuer (without regard to any
restrictions on the amount to be exchanged); (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 such excess; (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 redemption 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.
(v) If the Underlying Securities are not redeemed by the
Underlying Securities Issuer for any reason, 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.
24
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms
shall not apply to the Boeing Securities-Backed Series 2003-16 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Boeing Securities-Backed Series 2003-16
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 Boeing Securities-Backed Series 2003-16 Certificates.
(f) If the Trustee has not received payment with respect to a
Collection Period on the Underlying Securities on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of
such payment. No additional amounts shall accrue on the Certificates or be
owed to Certificateholders as a result of such delay; provided, however, that
any additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Class A-1 Certificateholders, Class
A-2 Certificateholders and Class A-3 Certificateholders, pro rata, in
proportion to their respective entitlements to such delayed payments.
(g) The outstanding principal balance, or notional amount, as the case
may be, 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 Certificates representing the Required Percentage-Removal.
(j) In the event that the Internal Revenue Service challenges the
characterization of the Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application
of Subchapter K of the Code and is hereby empowered to execute such forms on
behalf of the Certificateholders.
25
(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 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:
26
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee or the Warrant Agent, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating 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: Xxxxx X. Xxxxxx, Managing Director,
Investment Banking Services/Structured
Products
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
27
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
Certiticateholders and the Warrant Holders.
(r) The provisions of Section 2.01(d) (iii) of the Standard Terms shall
not apply to the Boeing Securities-Backed Series 2003-16 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"
(s) The Trustee shall appoint a firm of independent certified public
accountants to review each of the distribution reports prepared by the Trustee
pursuant to Section 4.03 of the Standard Terms and to verify (x) that such
reports and the calculations made therein were made accurately and in
accordance with the terms of the Trust Agreement and (y) that the Depositor
and the Trustee have each fulfilled their obligations under this Trust
Agreement. The Trustee shall instruct the accountants (i) to promptly report
to the Trustee any errors in such distribution reports discovered in verifying
such calculations and (ii) to render to the Trustee an annual examination
report, prepared in compliance with established or stated criteria as set
forth in the professional standards of the American Institute of Certified
Public Accountants, within 45 days (or such longer period as may be acceptable
to the Trustee) following the end of each calendar year that specifies the
calculations made in reviewing the distribution reports prepared by the
Trustee for the previous calendar year and such accountants' associated
findings.
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS
PROVISIONS THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and
all such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon
the earliest to occur of (i) the payment in full at maturity or sale by the
Trust after a payment default, call 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, Class A-2 Certificateholders and Class
A-3 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.
28
Section 13. Sale of Underlying Securities; Optional Exchange. In the
event of a sale of the Underlying Securities pursuant to this Agreement or
pursuant to the instructions of the Warrant Agent under Section 1.2 of the
Warrant Agent Agreement, the Trustee shall solicit bids for the sale of the
Underlying Securities with settlement thereof on or before the third Business
Day after such sale from three leading dealers in the relevant market. Any of
the following dealers (or their successors) shall be deemed to qualify as
leading dealers: (1) Credit Suisse First Boston LLC, (2) Xxxxxxx, Xxxxx & Co.,
(3) Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (4) UBS Securities
LLC, (5) Citigroup Global Markets 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. 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 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 as the Voting Rights 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
29
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 Certificateholders representing
100% of the aggregate Voting Rights and 100% of the 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 aggregate Voting Rights 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, Class A-3 Certificateholders
and the Warrant Holders of such offer as promptly as practicable. 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 an event of default has occurred on the related Underlying
Securities and the Trustee is directed by the affirmative vote of the holders
of 100% of the 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.
(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, Class A-2 Certificateholders and Class A-3
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 and all proceeds thereof 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 and all proceeds thereof
(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
30
defined in the UCC) in the Underlying Securities in favor of the
Securities Intermediary 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") established in the name of the
Trustee in accordance with Section 2.01 of the Standard Terms. U.S.
Bank Trust National Association, as securities intermediary (the
"Securities Intermediary") has established the Securities Account and
has agreed to treat the Underlying Securities as "financial assets"
within the meaning of the UCC.
(iii) Immediately prior to the transfer of the Underlying
Securities to the Trust, the 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) The Depositor has received all consents and approvals
required by the terms of the Underlying Securities for the transfer to
the Trustee all of the Depositor's interest and rights in the
Underlying Securities as contemplated by the Trust Agreement.
(v) The Depositor has taken all steps necessary to cause the
Securities Intermediary to identify on its records that the Trustee is
the Person owning the security entitlements credited to the Securities
Account.
(vi) Other than the security interest granted to the Trust
pursuant to this Agreement, the Depositor has not assigned, pledged,
sold, granted a security interest in or otherwise conveyed any interest
in the Underlying Securities (or, if any such interest has been
assigned, pledged or otherwise encumbered, it has been released). The
Depositor has not authorized the filing of and is not aware of any
financing statements against the Depositor that include a description
of the Underlying Securities other than any financing statement
relating to the security interest granted to the Trust hereunder. The
Depositor is not aware of any judgment or tax lien filings against the
Depositor.
(vii) The Securities Account is not in the name of any Person
other than the Trustee. The Depositor has not consented to the
compliance by the Securities Intermediary, with entitlement orders of
any Person other than the Trustee.
31
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 Boeing
Securities-Backed Series
2003-16 Trust
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
32
SCHEDULE I
BOEING SECURITIES-BACKED SERIES 2003-16
UNDERLYING SECURITIES SCHEDULE
6.125% Underlying Securities
-----------------------------
Underlying Securities: 6.125% Notes due 2033.
Underlying Securities Issuer: The Boeing Company
CUSIP Number: 000000XX0.
Principal Amount Deposited: $17,275,000.
Original Issue Date: February 11, 2003.
Principal Amount of $400,000,000.
Underlying Securities
Originally Issued:
Maturity Date: February 15, 2033.
Interest Rate: 6.125% per annum.
Interest Payment Dates: February 15th and August 15th.
I-1
6.625% Underlying Securities
----------------------------
Underlying Securities: 6.625% Debentures due 2038.
Underlying Securities Issuer: The Boeing Company.
CUSIP Number: 000000XX0.
Principal Amount Deposited: $7,725,000.
Original Issue Date: July 8, 1998.
Principal Amount of $300,000,000.
Underlying Securities
Originally Issued:
Maturity Date: February 15, 2038.
Interest Rate: 6.625% per annum.
Interest Payment Dates: February 15th and August 15th.
Underlying Securities Record Dates: The day immediately preceding
each Distribution Date.
I-2
EXHIBIT A-1
FORM OF TRUST CERTIFICATE CLASS A-1
CLASS A-1 CERTIFICATE
NUMBER 1 1,000,000 $25 PAR CERTIFICATES
CUSIP NO. 21988K 305
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 NOR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
THE CERTIFICATEHOLDER, BY ITS ACCEPTANCE OF THIS CERTIFICATE, COVENANTS AND
AGREES 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.
XXXXXX ABS CORPORATION
1,000,000 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
BOEING SECURITIES-BACKED SERIES 2003-16
6.25% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$17,628,000 aggregate principal amount of 6.125% Debentures due February 15,
2033, and $7,725,000 aggregate principal amount of 6.625% Debentures due
February 15, 2038 issued by The Boeing Company (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 1,000,000
Class A-1 Certificates issued by the Corporate Backed Trust Certificates,
Boeing Securities-Backed Series 2003-16 Trust (the "Trust"), having an
aggregate Certificate Principal Balance of $25,000,000, representing a
nonassessable, fully-paid, proportionate undivided beneficial ownership
interest in the Boeing Securities-Backed Series 2003-16 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 in respect of the Boeing
Securities-Backed Series 2003-16, dated as of October 28, 2003 (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, Boeing
Securities-Backed Series 2003-16, 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
October 28, 2003, together with any and all income, proceeds and payments with
respect thereto.
A-1-2
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-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, BOEING SECURITIES-
BACKED SERIES 2003-16 TRUST
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
not in its individual capacity but solely as
Trustee,
By: _______________________________________
Authorized Signatory
Dated: October 28, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Boeing
Securities-Backed Series 2003-16, 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-1-4
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain payments and
collections respecting the Underlying Securities, all as more specifically set
forth herein and in the Trust Agreement. The registered Holder hereof, by its
acceptance hereof, agrees that it will look solely to the Trust Property (to
the extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the 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 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 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call
A-1-5
Warrants by the Warrant Holders; (iii) the Final Scheduled Distribution Date
and (iv) the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the
Code, an entity whose underlying assets include plan assets by reason of any
such plan's investment in the entity, including an individual retirement
account or Xxxxx plan (any such, a "Plan") may purchase and hold Certificates
if the Plan can represent and warrant that its purchase and holding of the
Certificates would not be prohibited under ERISA or the Code.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee) the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing ______________________ Attorney to
transfer said Certificate on the books of the Certificate Register, with full
power of substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed
by an "eligible guarantor institution" meeting the requirements of the
Certificate Registrar, which requirements include membership or participation
in the Security Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-1-7
EXHIBIT A-2
FORM OF TRUST CERTIFICATE CLASS A-2
TRUST CERTIFICATE CLASS A-2
CLASS A-2 CERTIFICATE
---------------------
NUMBER 1 CUSIP NO. 21988K AB3
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 AMOUNT OF THIS CLASS A-2 CERTIFICATE IS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING NOTIONAL 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.
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,
BOEING SECURITIES-BACKED SERIES 2003-16
$7,725,000 NOTIONAL AMOUNT
0.375% INITIAL INTEREST RATE
FINAL SCHEDULED DISTRIBUTION DATE: February 15, 2038
evidencing a proportionate undivided beneficial ownership interest in
the Trust, as defined below, the property of which consists principally of
$17,628,000 aggregate principal amount of 6.125% Notes due February 15, 2033
and $7,725,000 aggregate principal amount of 6.625% Debentures due February
15, 2038, each issued by The Boeing Company , 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 $7,725,000 notional amount nonassessable, fully-paid, proportionate
undivided beneficial ownership interest in the Corporate Backed Trust
Certificates, Boeing Securities-Backed Series 2003-16 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, Boeing Securities-Backed Series 2003-16, dated as of
October 28, 2003 (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, Boeing Securities-Backed Series 2003-16
Backed Series 2003-16, 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 October 28, 2003,
together with any and all income, proceeds and payments with respect thereto.
A-2-3
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 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, BOEING
SECURITIES-BACKED SERIES 2003-16 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
----------------------------
Authorized Signatory
Dated: October 28, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Boeing
Securities-Backed Series 2003-16, 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 $77,250 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 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 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-2-6
A-1 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call Warrants by the Warrant Holders; (iii) the
Final Scheduled Distribution Date and (iv) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
An employee benefit plan subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the
Code, an entity whose underlying assets include plan assets by reason of any
such plan's investment in the entity, including an individual retirement
account or Xxxxx plan (any such, a "Plan") may purchase and hold Certificates
if the Plan can represent and warrant that its purchase and holding of the
Certificates would not be prohibited under ERISA or the Code.
A-2-7
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-2-8
EXHIBIT A-3
FORM OF TRUST CERTIFICATE CLASS A-3
CLASS A-3 CERTIFICATE
NUMBER 1 CUSIP NO. 21988K AD9
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-3 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-3 CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-3 CERTIFICATE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS CLASS A-3 CERTIFICATE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE PRINCIPAL AMOUNT OF THIS CLASS A-3 CERTIFICATE IS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A-3
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.
THE CERTIFICATEHOLDERS, BY THEIR ACCEPTANCE OF THE 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-3-2
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
BOEING SECURITIES-BACKED SERIES 2003-16
$353,000 PRINCIPAL AMOUNT
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$17,628,000 aggregate principal amount of 6.125% Notes due February 15, 2033
and $7,725,000 aggregate principal amount of 6.625% Debentures due February
15, 2038, each issued by The Boeing Company 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 Class A-3
Certificates issued by the Corporate Backed Trust Certificates, Boeing
Securities-Backed Series 2003-16 Trust (the "Trust"), having an aggregate
Certificate Principal Balance of $353,000, representing a nonassessable,
fully-paid, proportionate undivided beneficial ownership interest in the
Boeing Securities-Backed Series 2003-16 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, Boeing Securities-Backed
Series 2003-16, dated as of October 28, 2003 (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, Boeing
Securities-Backed Series 2003-16, Class A-3" (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
October 28, 2003, together with any and all income, proceeds and payments with
respect thereto.
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 of interest will be made on this Certificate on each
Distribution Date.
A-3-3
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.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES, BOEING
SECURITIES-BACKED SERIES 2003-16 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By: __________________________________
Authorized Signatory
Dated: October 28, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Boeing
Securities-Backed Series 2003-16, 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-3-5
(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-3 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 $88,250 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
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)
A-3-6
the payment in full at maturity or sale by the Trust after a payment default
on or an acceleration or other early payment of the Underlying Securities and
the distribution in full of all amounts due to the Class A-1
Certificateholders and Class A-3 Certificateholders; (ii) the exercise of all
outstanding Call Warrants by the Warrant Holders; (iii) the Final Scheduled
Distribution Date and (iv) the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
A-3-7
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-3-8
EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
BOEING SECURITIES-BACKED SERIES 2003-16 TRUST
WARRANT AGENT AGREEMENT, dated as of October 28, 2003 (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,
Boeing Securities-Backed Series 2003-16 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 2003-16,
dated as of October 28, 2003 (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.
(ii) The Warrant Holder shall surrender the Call
Warrants to the Warrant Agent at its office specified in
Section 7.3 hereof no later than 10:00 a.m. (New York City
time) on such Call Date.
(iii) Except as otherwise provided herein in
connection with a Call Notice relating to a tender offer for
or redemption of Underlying Securities, the Warrant Holder
shall have made payment to the Warrant Agent, by wire transfer
or other immediately available funds acceptable to the Warrant
Agent, in the amount of the Call Price, no later than 10:00
a.m. (New York City time) on the Call Date.
(iv) The Warrant Holder may not exercise the Call
Warrants at any time when such Warrant Holder is insolvent,
and such Warrant Holder shall be required to certify that it
is solvent at the time of exercise, by completing the form of
subscription ("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 solvency certificate required pursuant to Section 7(d)(ii)
of the Series Supplement.
(v) The Warrant Holder shall have satisfied any other
conditions to the exercise of Call Warrants set forth in
Section 7(d) of the Series Supplement.
(b) Upon exercise of Call Warrants, any Warrant Holder other
than the Depositor or any Affiliate of the Depositor shall be entitled
to delivery by the Trustee of the Called Certificates. The "Called
Certificates" shall be, in the case of the Class A-1 Certificates,
Class A-1 Certificates having a Certificate Principal Balance equal to
$25 per Call Warrant, in the case of the Class A-2 Certificates, Class
A-2 Certificates having a notional balance equal to $77,250 per Call
Warrant and in the case of the Class A-3 Certificates, Class A-3
Certificates having a Certificate Principal Balance equal to $88,250.
Unless otherwise specified therein, each Call Notice shall be deemed
to be notice of an Optional Exchange pursuant to Section 7(b) of the
Series Supplement; it being expressly understood that any Optional
Exchange must comply with provisions of Section 7(a) and 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 (i) 6.125% Underlying Securities
which represent the same percentage of the 6.125% Underlying
Securities as the Called Certificates represent of the Class A-1
Certificates, the Class A-3 Certificates and (ii) 6.625% Underlying
Securities which represent the same percentage of the 6.625%
Underlying Securities as the Called Certificates represent of the
Class A-1 Certificates and the 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
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the applicable Call Date (and, pending such transfer, shall hold such
amount for the benefit of the Warrant Holder in a segregated trust
account).
(d) Delivery of a Call Notice does not give rise to an
obligation on the part of the Warrant Holder to pay the Call Price.
If, by 10:00 a.m. (New York City time) on the Call Date, the Warrant
Holder has not paid the Call Price, except in connection with a Call
Notice relating to a tender offer for or redemption of 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 or redemption shall be deducted from the proceeds
of a tender offer or a redemption by the Trust pursuant to Section
7(g)(iii) or Section 7(h)(iii), as applicable, 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 (it being expressly understood
that any Optional Exchange must comply with provisions of Section 7(a)
and 7(b) of the Series Supplement), 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 Call
Notice and Optional Exchange is in connection with a tender offer or a
redemption, the Warrant Agent shall instruct the Trustee to distribute
to the exercising Warrant Holder the excess of the tender offer or
redemption proceeds over the Call Price pursuant to Section 7(g)(iii)
or Section 7(h)(iii), as applicable, 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 (i) in the
case of a Global Call Warrant, cause the Registered Warrant Amount to be
decreased to reflect the outstanding Call Warrants of the Warrant Holder and
(ii) in the case of a Certificated Call Warrant, 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.
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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 IV, shall be cancelled by
the Warrant Agent, and no Call Warrant (other than that reflecting any such
transfer or exchange) shall be issued in lieu thereof. The Warrant Agent shall
destroy all cancelled Call Warrants.
Section 1.4 No Rights as Holder of Certificates Conferred by Call
Warrants. Prior to the exercise thereof, Call Warrants shall not entitle the
Warrant Holder to any of the rights of a holder of the Certificates,
including, without limitation, the right to receive the payment of any amount
on or in respect of the Certificates or to enforce any of the covenants of the
Trust Agreement.
Section 1.5 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 Warrant Amount or
Registered Warrant Amount, as the case may be, 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, 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 aggregate amount of Class A-3
Certificates callable by Call Warrants shall equal the principal amount of
outstanding Class A-3 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 the Depository
or each Warrant Holder, as the case may be, of such adjustments.
ARTICLE II
THE CALL WARRANTS
Section 2.1 The Call Warrants.
(a) The Call Warrants shall initially be issued as one or more
Global Call Warrants in definitive, fully registered form without
coupons, and DTC shall be the Depository. Upon issuance, the Global
Call Warrants shall initially be deposited with the Trustee in its
capacity as custodian on behalf of DTC. Such Global Call Warrants
shall initially be registered in the name of Cede & Co. or another
nominee designated by DTC. Global Call Warrants shall clear and settle
in book-entry only form through the facilities of the Depository.
Unless and until it is exchanged in whole or in part for Certificated
Call Warrants, a Global Call Warrant may not be transferred except as
a whole by the Depository for such Global Call Warrant to a nominee of
such Depository, or by a nominee of such Depository to such Depository
or another nominee of such Depository, or by such Depository or any
such nominee to a successor of such Depository or a nominee of such
successor. The Registered Warrant Amount of Call Warrants may from
time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for DTC for such Global Call
Warrant, as provided in this Section.
4
(b) The Warrant Agent shall register the transfer or exchange
of any Global Call Warrant without requiring any additional
certification.
(c) Interests of beneficial owners in a Global Call Warrant
may be transferred in accordance with the rules and procedures of DTC
and any other applicable Depositories. In connection with any exchange
of beneficial ownership interests in a Global Call Warrant for
Certificated Call Warrants pursuant to Section 2.3, the Warrant Agent
shall reflect on its books and records the date of such exchange and a
decrease in the Registered Warrant Amount of such Global Call Warrant
in an amount equal to the Warrant Amount of the beneficial ownership
interests in such Global Call Warrant being exchanged for Certificated
Call Warrants.
Section 2.2 Cancellation. All Call Warrants presented and surrendered
for payment, transfer or exchange shall be delivered to the Warrant Agent and
shall be promptly canceled by it. No Call Warrants shall be authenticated in
lieu of or in exchange for any Call Warrants canceled as provided in this
Section 2.2.
Section 2.3 Certificated Call Warrants. Any Global Call Warrant
representing Call Warrants shall be exchangeable for Certificated Call
Warrants only if (i) the Depository advises the Depositor in writing that it
is no longer willing or able to properly discharge its responsibilities with
respect to the Call Warrants and the Depositor is unable to locate a qualified
successor within 60 calendar days or (ii) the Depositor, at its option,
advises the Trustee in writing that it elects to terminate the book-entry
system through the Depository. Any Global Call Warrant that is exchangeable
pursuant to the preceding sentence will be exchangeable for Certificated Call
Warrants of like tenor and Warrant Amount, as applicable, in any authorized
denomination or denominations and registered in the names of such Person or
Persons as the Depository shall direct. Upon such exchange, the Warrant Agent
shall execute and authenticate such Certificated Call Warrants and register
the same in the name of, and deliver the same to, such Person or Persons
consistent with the provisions hereof.
ARTICLE III
RESTRICTIONS ON TRANSFER
Section 3.1 Restrictive Legends. Except as otherwise permitted by
this Article III, 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 (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 CALL WARRANT REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THESE CALL WARRANTS.
5
EACH PURCHASER OF THIS CALL WARRANT IS HEREBY NOTIFIED THAT THE
SELLER OF THIS CALL WARRANT MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER."
Section 3.2 Notice of Proposed Transfer. Prior to any transfer of any
Call Warrant or portion thereof, the Warrant Holder will give five (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 IV
REGISTRATION AND TRANSFER OF CALL WARRANTS, ETC.
Section 4.1 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. Prior to due presentment of a
Call Warrant for registration of transfer, the Depositor, the Trustee, the
Warrant Agent and any agent of the Depositor, the Trustee or the Warrant Agent
may treat the Person in whose name any Call Warrant is registered as the owner
of such Call Warrant for any purposes whatsoever, and none of the Depositor,
the Trustee, the Warrant Agent or any agent of the Depositor, the Trustee or
the Warrant Agent shall be affected by notice to the contrary.
None of the Depositor, the Trustee, the Warrant Agent or any
agent of the Depositor, the Trustee or the Warrant Agent shall have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests of a Global Call
Warrant or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Call
Warrant, nothing herein shall prevent the Depositor, the Trustee, the Warrant
Agent or any agent of the Depositor, the Trustee or the Warrant Agent from
giving effect to any written certification, proxy or other authorization
furnished by any Depository, as a Warrant Holder, with respect to such Global
Call Warrant or impair, as between such Depository and owners of beneficial
interests in such Global Call Warrant, the operation of customary practices
governing the exercise of the rights of such Depository (or its nominee) as
Warrant Holder of such Global Call Warrant.
Section 4.2 Transfer and Exchange of Call Warrants. (a) No Call
Warrant or any beneficial interest therein may be offered, resold, assigned or
otherwise transferred (including by pledge or hypothecation) unless such
offer, resale, assignment or transfer is 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, and 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
Certificated Call Warrant, 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 Certificated Call Warrants to be
transferred substantially in the form of Exhibit A hereto. In addition to the
foregoing, each prospective transferee of any
6
Certificated Call Warrants shall acknowledge, represent and agree (and each
prospective transferee of any beneficial interest in a Global Call Warrant
shall be deemed to 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 Warrants for its own account or for the account of a
QIB.
(2) The transferee understands that the Call Warrants 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 to a QIB, in accordance with Rule 144A, and 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 III) promptly execute and deliver,
and cause the Trustee, on behalf of the Trust, to execute and deliver,
in exchange therefor, a new Call Warrant of like tenor and evidencing
a like number of Call Warrants, in the name of such Warrant Holder or
as such Warrant Holder (upon payment by such Warrant Holder of any
applicable transfer taxes or government charges) may direct; provided
that as a condition precedent for transferring the Call Warrants, the
prospective transferee shall deliver to the Trustee and the Depositor
an executed copy of the Investment Letter (set forth as Exhibit A
hereto) if the same is required pursuant to the provisions of clause
(a) above.
Section 4.3 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 4.4 Execution and Delivery of Call Warrants by Trustee. The
Trustee, on behalf of the Trust, hereby agrees (subject to compliance with
Article III) to execute and deliver such new Call Warrants issued in
accordance with Section 1.2 or this Article IV as the Warrant Agent shall
request in accordance herewith.
7
Section 4.5 Additional Call Warrants. The Trustee shall execute and
deliver, in a manner consistent with Article II hereof, 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 V
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" shall mean any Business Day that any holder of Call
Warrants designates as a Call Date occurring (i) on or after October 28, 2008,
(ii) after the Underlying Securities Issuer announces that it will redeem,
prepay 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 Section 5(d) or
5(h) of this Series Supplement or (iv) on the date on which the Underlying
Securities Issuer or affiliate thereof consummates a tender offer for some or
all of the Underlying Securities.
"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, (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 7.75% per annum, assuming no
delinquencies, deferrals, redemptions or prepayments on the Underlying
Securities shall occur after the related Call Date and (iii) in the case of
the Class A-3 Certificates, $0.
"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.
"Certificated Call Warrant": Any Call Warrant in definitive, physical
form registered in the name of a Person other than the Depository or its
nominee.
"Closing Date": October 28, 2003.
"Depositor": As defined in the recitals.
8
"Depositor Order": As defined in the Trust Agreement.
"Depository": DTC initially, or such other depository appointed by
the Depositor.
"DTC": The Depository Trust Company, a limited purpose trust company
organized under the laws of the State of New York, and any of its successors
or assigns.
"Global Call Warrant": A registered Call Warrant in the name of the
Depository or its nominee.
"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 4.2 hereof.
"Rating Agencies": Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service and any of their
respective successors.
"Registered Warrant Amount": The Warrant Amount represented by the
Global Call Warrants.
"Responsible Officer": As defined in the Trust Agreement.
"Rule 144A": As defined in Section 4.2.
"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 Amount": With respect to any Warrant Holder, the number of
Call Warrants relating to Class A-1 Certificates, Call Warrants relating to
the Class A-2 Certificates and the Call Warrants relating to Class A-3
Certificates, held by such Warrant Holder.
"Warrant Holder": As defined in Section 1.1(a) hereof.
9
ARTICLE VI
WARRANT AGENT
Section 6.1 Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of the Call
Warrants in reliance upon any instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document in good faith believed by it
to be genuine and to be signed, executed and, where necessary, verified and
acknowledged, by the proper Person or Persons.
Section 6.2 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 xxxxxx authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the Chief Executive Officer,
Chief Financial Officer, Chief Operating Officer, President, a Vice
President, a Senior Vice President, a Managing Director, its
Treasurer,
10
an Assistant Treasurer, its Secretary or an Assistant Secretary of the
Depositor, and any Responsible Officer of the Trustee, and to apply to
such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any
such officer.
(g) The Warrant Agent and any shareholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the
Call Warrants or other securities of the Trust or otherwise act as
fully and freely as though it were not Warrant Agent hereunder, so
long as such persons do so in full compliance with all applicable
laws. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Trust, the Depositor or for any other legal
entity.
(h) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the
Trust hereunder. The Warrant Agent shall not be liable except for the
failure to perform such duties as are specifically set forth herein,
and no implied covenants or obligations shall be read into the Call
Warrants against the Warrant Agent, whose duties shall be determined
solely by the express provisions thereof. The Warrant Agent shall not
be deemed to be a fiduciary.
(j) The Warrant Agent shall not be responsible for any failure
on the part of the Trustee to comply with any of its covenants and
obligations contained herein.
(k) The Warrant Agent shall not be under any obligation or
duty to institute, appear in or defend any action, suit or legal
proceeding in respect hereof, unless first indemnified to its
satisfaction, but this provision shall not affect the power of the
Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without such indemnity. The Warrant Agent
shall promptly notify the Depositor and the Trustee in writing of any
claim made or action, suit or proceeding instituted against it arising
out of or in connection with the Call Warrants.
(l) _ The Trustee will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered
all such further acts, instruments and assurances as may be required
by the Warrant Agent in order to enable it to carry out or perform its
duties hereunder.
(m) Upon request of a Warrant Holder, the Warrant Agent shall
furnish to such Warrant Holder and/or a prospective purchaser
designated by such Warrant Holder the information required to be
delivered under Rule 144A(d)(4) under the Securities Act, to the
extent that such information is in the possession of the Warrant
Agent.
Section 6.3 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
11
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 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 6.4 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 Warrant Holder.
ARTICLE VII
MISCELLANEOUS
Section 7.1 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 7.2 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 7.3 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
12
hereunder or pursuant to the Trust Agreement or this Agreement by facsimile
within one Business Day of receipt thereof.
Section 7.4 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 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 Agent Agreement, this Section 7.4(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
13
the authorization of the execution thereof shall be subject to such
reasonable regulations as the Warrant Agent may prescribe.
Section 7.5 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 7.6 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 7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS.
Section 7.8 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 7.9 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.
14
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective duly authorized officers s of the date
first above written.
XXXXXX ABS CORPORATION,
as Depositor
By:
-----------------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its
individual capacity but
solely as Trustee and
Authenticating Agent
By:
-----------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Secretary and Vice President
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Warrant
Agent
By:
-----------------------------------------------
Name:
Title:
15
EXHIBIT C-1
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated: ___________ __, _____
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
Re: Corporate Backed Trust Certificates, Boeing Securities-Backed
Series 2003-16
Ladies and Gentlemen:
In connection with its proposed purchase of Call Warrants (the "Call
Warrants") which represent the right to call $______________ aggregate
certificate principal balance of Corporate Backed Trust Certificates, Boeing
Securities-Backed Series 2003-16 Class A-1 Certificates, $_______________
aggregate notional amount of Corporate Backed Trust Certificates, Boeing
Securities-Backed Series 2003-16 Class A-2 Certificates and $______________
aggregate certificate principal balance of Corporate Backed Trust
Certificates, Boeing Securities-Backed Series 2003-16 Class A-3 Certificates,
the undersigned purchaser (the "Purchaser") confirms that:
1. The Purchaser understands that substantial risks are involved in an
investment in the Call Warrants. The Purchaser represents that in making its
investment decision to acquire the Call Warrants, the Purchaser has not relied
on representations, warranties, opinions, projections, financial or other
information or analysis, if any, supplied to it by any person, including you,
Xxxxxx ABS Corporation, as depositor (the "Depositor"), or U.S. Bank Trust
National Association, as trustee (the "Trustee"), or any of your or their
affiliates, except as expressly contained in written information, if any. The
Purchaser has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Call Warrants, and the Purchaser is able to bear the substantial economic
risks of such an investment. The Purchaser has relied upon its own tax, legal
and financial advisors in connection with its decision to purchase the Call
Warrants.
2. The Purchaser (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 Call Warrants for its own account or for the account of
an investor of the type described in clause (A) above as to each of which the
Purchaser exercises sole investment discretion. The Purchaser is
C-1-1
purchasing the Call Warrants for investment purposes and not with a view to,
or for, the offer or sale in connection with, a public distribution or in any
other manner that would violate the 1933 Act or the securities or blue sky
laws of any state.
3. The Purchaser understands that the Call Warrants have not been and
will not be registered under the 1933 Act or under the securities or blue sky
laws of any state, and that (i) if it decides to resell, pledge or otherwise
transfer any Security, such resale, pledge or other transfer must comply with
the provisions of the Warrant Agent Agreement relating to the Call Warrants
(including, without limitation, the provisions of Section 4.2 thereof) and
(ii) it will, and each subsequent holder will be required to, notify any
purchaser of any Security from it of the resale restrictions referred to in
clause (i) above.
4. The Purchaser understands that each of the Call Warrants will bear a
legend substantially to the following effect, unless otherwise agreed by the
Depositor and the Trustee:
"THIS CALL WARRANT (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
CALL WARRANT REPRESENTED HEREBY MAY BE TRANSFERRED ONLY
IN COMPLIANCE WITH THE CONDITIONS SPECIFIED HEREIN OR IN
THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CALL WARRANT IS HEREBY NOTIFIED
THAT THE SELLER OF THIS CALL WARRANT MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER."
5. The Purchaser understands that no subsequent transfer of the Call
Warrants is permitted unless (A) such transfer is of a Call Warrant 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 4.2 of the Warrant Agent Agreement,
including, if required, a letter substantially in the form hereof, or such
other written statement as the Depositor shall reasonably prescribe.
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 States is able to exercise primary supervision
of the administration of the trust and
C-1-2
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 Call
Warrant 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 Call Warrant will not result in any
withholding obligation with respect to any payments with respect to
the Call Warrants 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 (as defined in the Prospectus Supplement) 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.
7. 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.
8. The Purchaser agrees that if at some time in the future it wishes to
transfer or exchange any of the Call Warrants, it will not transfer or
exchange any of the Call Warrants unless such transfer or exchange is in
accordance with the terms of the Warrant Agent Agreement, Series Supplement
and other documents applicable to the Call Warrant. The Purchaser understands
that any purported transfer of the Call Warrants (or any interest therein) in
contravention of any of the restrictions and conditions in the 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 Call Warrants, for any
purpose.
C-1-3
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,
[Name of Purchaser]
By: _________________________________
Name: _______________________________
Title: ______________________________
C-1-4
EXHIBIT C-2
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER AND ACCREDITED INVESTOR
Dated:
U.S. Bank Trust National Association,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.,
as Initial Purchaser
000 Xxxxxxx 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 our proposed purchase of $___________ aggregate
notional amount of [Class A-2 Certificates (the "Class A-2
Certificates")][Class A-3 Certificates ("the Class A-3 Certificates")]
representing an interest in the Corporate Backed Trust Certificates, Boeing
Securities-Backed Series 2003-16 Trust (the "Trust"), the undersigned, by
executing this letter (the "Purchaser") confirms that:
1. The Purchaser understands that substantial risks are involved in an
investment in the [Class A-2 Certificates][Class A-3 Certificates]. The
Purchaser represents that, in making its investment decision to acquire the
[Class A-2 Certificates][Class A-3 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. The Purchaser is purchasing the [Class A-2 Certificates][Class A-3
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 Securities Act or the securities or blue sky laws of
any state of the United States. The Purchaser has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of purchasing any of the [Class A-2 Certificates][Class
A-3 Certificates]. The Purchaser is aware that it may be required to bear the
substantial economic risk of an investment in the [Class A-2
Certificates][Class A-3 Certificates] for an indefinite period of time and
such Purchaser is able to bear such risk for an indefinite period. The
Purchaser has relied upon its own tax, legal and financial advisors in
connection with its decision to purchase the [Class A-2 Certificates][Class
A-3 Certificates].
C-2-1
2. The Purchaser is not an "affiliate" (as defined in Rule 144 under
the Securities Act) of the Depositor and is either:
(i) (A) a "Qualified Institutional Buyer" (a "QIB") (as defined in
Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"
and "Rule 144A")) and has delivered to you the certification contained herein
as to the fact that it is a QIB and (B) acquiring the [Class A-2
Certificates][Class A-3 Certificates] for its own account, for the account of
an Accredited Investor (as defined in Rule 501(a) under the Securities Act),
or for the account of a QIB as to each of which the Purchaser exercises sole
investment discretion. The Purchaser is aware that the [Class A-2
Certificates][Class A-3 Certificates] are being sold to it in reliance on the
exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A; or
(ii) an Accredited Investor and, if the [Class A-2 Certificates]
[Class A-3 Certificates] are to be purchased for one or more accounts ("investor
accounts") for which it is acting as fiduciary or agent, each such investor
account is an Accredited Investor on a like basis or a QIB; in the normal
course of its business, such Purchaser invests in or purchases securities
similar to the [Class A-2 Certificates][Class A-3 Certificates].
3. The Purchaser acknowledges that neither the Depositor nor the
Initial Purchaser, or any person representing the Depositor or the Initial
Purchaser, has made any representation to such purchaser with respect to the
Trust, the Underlying Securities or the offering or sale of any [Class A-2
Certificates][Class A-3 Certificates].
4. The Purchaser understands that the [Class A-2 Certificates][Class
A-3 Certificates] are being offered in a transaction not involving any public
offering in the United States within the meaning of the Securities Act, that
the [Class A-2 Certificates][Class A-3 Certificates] have not been and will
not be registered under the Securities Act or under the securities or blue sky
laws of any state, and that (i) if in the future it decides to offer, resell,
pledge or otherwise transfer the [Class A-2 Certificates][Class A-3
Certificates], such [Class A-2 Certificates][Class A-3 Certificates] shall
only be offered, resold, assigned or otherwise transferred (A) to the Trust,
(B) pursuant to an effective registration statement under the Securities Act,
(C) to a QIB, in accordance with Rule 144A or (D) to any person or entity
(including an Accredited Investor within the meaning of Rule 501(a) under the
Securities Act) pursuant to another available exemption from registration
provided under the Securities Act, and, in each of cases (A) through (D), in
accordance with any applicable securities laws of any state of the United
States and other jurisdictions and (ii) the purchaser will, and each
subsequent holder is required to, notify any subsequent purchaser of such
[Class A-2 Certificates][Class A-3 Certificates] from it of the resale
restrictions referred to in clause (i) above. Upon the transfer of [Class A-2
Certificates] held in the form of global certificates to an Accredited
Investor, the transferor's interest in such global certificates shall be
exchanged for a [Class A-2 Certificate][Class A-3 Certificate] in definitive
form. Thereafter, upon transfer of a definitive [Class A-2 Certificate][Class
A-3 Certificate] to a QIB, such [Class A-2 Certificate][Class A-3 Certificate]
may be exchanged for a beneficial interest in a global certificate.
5. The Purchaser understands that each [Class A-2 Certificate][Class
A-3 Certificate] will, unless otherwise agreed to by the Depositor and the
Trustee, bear a legend substantially to the following effect:
C-2-2
"THIS 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 CERTIFICATE
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH
THE TERMS OF THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CERTIFICATE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS CERTIFICATE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER."
6. The Purchaser understands that no subsequent transfer of the [Class
A-2 Certificates][Class A-3 Certificates] is permitted unless (A) such
transfer is of a [Class A-2 Certificate][Class A-3 Certificate] with a
denomination of at least $100,000 and (B) it causes its proposed transferee to
provide to the Trustee and the Initial Purchaser a letter substantially in the
form of Exhibit C to the Series Supplement and otherwise satisfactory to the
Trustee and Initial Purchaser, as applicable, or such other written statement
as the Depositor shall prescribe.
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][Class A-3
Certificates], it will not transfer or exchange any of the [Class A-2
Certificates][Class A-3 Certificates] unless such transfer or exchange is in
accordance with Section 5.04 of the Trust Agreement. The Purchaser understands
that any purported transfer of the [Class A-2 Certificates][Class A-3
Certificates] (or any interest therein) in contravention of any of the
restrictions and conditions in the Trust Agreement, as applicable, shall be
void, and the purported transferee in such transfer shall not be recognized by
the Trust or any other Person as a Certificateholder, as the case may be, for
any purpose.
8. The purchaser (i) acknowledges that the Depositor, the Initial
Purchaser, the Trustee and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements and agrees that the
Depositor, the Initial Purchaser, the Trustee 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, and (ii) agrees that, if any of the acknowledgments,
representations, warranties and agreements made or deemed to have been made by
such purchaser's purchase of the [Class A-2 Certificates][Class A-3
Certificates] are no longer accurate, such purchaser shall promptly notify the
Depositor and the Initial Purchaser. If the purchaser is acquiring any [Class
A-2 Certificates][Class A-3 Certificates] as a fiduciary or agent for one or
more investor accounts, it represents that it has sole investment discretion
with respect to each such account and it has full power to make the foregoing
acknowledgments, representations and agreements on behalf of each such account
and that each such investor account is eligible to purchase the [Class A-2
Certificates][Class A-3 Certificates].
C-2-3
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:
C-2-4
