Exhibit 4.1
SERIES SUPPLEMENT
CORPORATE-BACKED TRUST CERTIFICATES,
DAIMLERCHRYSLER DEBENTURE-BACKED
SERIES 2004-3 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
Dated as of February 11, 2004
Table of Contents
Page
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Section 1. Incorporation of Standard Terms.................................................1
Section 2. Definitions.....................................................................2
Section 3. Designation of Trust and Certificates...........................................9
Section 4. Trust Certificates.............................................................10
Section 5. Distributions..................................................................10
Section 6. Early Redemption of Certificates...............................................12
Section 7. Optional Call; Optional Exchange...............................................13
Section 8. Trustee's Fees.................................................................18
Section 9. Swap Payments..................................................................18
Section 10. Notices of Swap Agreement Termination Events and Underlying Securities
Events of Default..............................................................18
Section 11. Miscellaneous..................................................................18
Section 12. Governing Law..................................................................23
Section 13. Counterparts...................................................................23
Section 14. Termination of the Trust.......................................................23
Section 15. Sale of Underlying Securities..................................................23
Section 16. Amendments.....................................................................23
Section 17. Voting of Underlying Securities, Modification of Underlying Securities
Indenture, Modification of Swap Agreement......................................23
Section 18. Additional Depositor Representation............................................25
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SCHEDULE I SERIES 2004-3 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A FORM OF TRUST CERTIFICATE
EXHIBIT B FORM OF WARRANT AGENT AGREEMENT
EXHIBIT C FORM OF SWAP AGREEMENT
SERIES SUPPLEMENT
CORPORATE-BACKED TRUST CERTIFICATES,
DAIMLERCHRYSLER DEBENTURE-BACKED SERIES 2004-3 TRUST
SERIES SUPPLEMENT, Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series 2004-3, dated as of February 11, 2004
(the "Series Supplement"), by and between XXXXXX ABS CORPORATION, as Depositor
(the "Depositor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated herein
(the "Trust") by executing and delivering this Series Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
January 16, 2001 (the "Standard Terms" and, together with this Series
Supplement, the "Trust Agreement"), by and between the Depositor and the
Trustee, as modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit into the Trust the
Underlying Securities set forth on Schedule I attached hereto (the "Underlying
Securities Schedule") the general terms of which are described in the
Prospectus Supplement under the heading "Description of the Underlying
Securities;"
WHEREAS, the Depositor desires that the Trust enter into a swap
agreement pursuant to which the Trust will exchange interest payments due on
the Underlying Securities for payments from the Swap Counterparty which will
be passed through the Certificateholders;
WHEREAS, in connection with the creation of the Trust, the deposit
therein of the Underlying Securities and the entering into the Swap Agreement
thereby, 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 Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series 2004-3 Certificates and the
transactions described herein.
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Section 2. Definitions.
(a) Except as otherwise specified herein or as the context may otherwise
require, the following terms shall have the respective meanings set forth
below for all purposes under this Series Supplement. (Section 2(b) below sets
forth terms listed in the Standard Terms which are not applicable to this
Series.) Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Standard Terms.
"Available Funds" shall mean, for any Distribution Date, Available
Interest Funds and Available Principal Funds for such Distribution Date.
"Available Interest Funds" shall mean, for any Distribution Date,
the sum of (i) all amounts received on or prior to such Distribution Date from
the Swap Counterparty pursuant to the Swap Agreement with respect to the
preceding Interest Accrual Period and (ii) any amounts representing interest
on the Underlying Securities that are actually received by the Trust pursuant
to the Underlying Securities Indenture on such Distribution Date and not
required to be paid to the Swap Counterparty pursuant to the Swap Agreement.
"Available Principal Funds" shall mean all amounts received from the
Underlying Securities Issuer or the Underlying Securities Guarantor with
respect to principal of the Underlying Securities on the Final Scheduled
Distribution Date or any other date.
"Business Day" shall mean any day other than a Saturday, 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 Brothers Special Financing
Inc.
"Call Date" shall mean any Business Day that any holder of Call
Warrants designates as a Call Date occurring (i) on or after February 11,
2009, (ii) after the Underlying Securities Issuer announces that it will
redeem, prepay or otherwise make an unscheduled payment on the Underlying
Securities, (iii) upon the occurrence of a Swap Agreement Termination Event,
(iv) on or after the date the Trustee notifies the Certificateholders of any
proposed sale of the Underlying Securities following the occurrence of an
Underlying Securities Payment Default, an Underlying Securities Bankruptcy
Default or an SEC Reporting Failure or (v) on any date on which the Underlying
Securities Issuer or an 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, 100% of the
outstanding Certificate Principal Balance of the 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.
"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.
"Certificate Account" shall have the meaning specified in the
Standard Terms.
"Certificates" shall mean the Certificates, in the form attached
hereto as Exhibit A, to be issued by the Trust representing a proportionate
undivided beneficial ownership interest in certain distributions to be made by
the Trust and having the characteristics described herein and in the
Certificates.
"Closing Date" shall mean February 11, 2004.
"Code" means the Internal Revenue Code of 1986, as amended.
"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.
"Discontinuation Date" shall mean the date determined by the
Depositor within a reasonable time following the Underlying Securities
Guarantor'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.
"Distribution Date" shall mean March 1st and September 1st of each
year (or if such date is not a Business Day, the next succeeding Business
Day), commencing on March 1, 2004, and ending on the earlier of the Final
Scheduled Distribution Date and any date on which all Underlying Securities
are redeemed pursuant to the Underlying Securities Indenture or prepaid or
liquidated in whole for any reason other than at their maturity.
"Early Swap Termination Date" shall mean the date so designated as
such in accordance with the terms of the Swap Agreement.
"Early Trust Termination Date" shall mean the same date as an Early
Swap Termination Date occurring due to a Trust Termination Event.
"Early Termination Payment" shall mean, with respect to any Early
Trust Termination Date arising as a result of the consummation of an Optional
Exchange, the amount payable by the Trust, on such Early Trust Termination
Date pursuant to the Swap Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
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"Exchange Act" shall mean the United States Securities and Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Final Scheduled Distribution Date" shall mean March 1, 2027, or, if
such day is not a business day, the next succeeding business day.
"Interest Accrual Period" shall mean (i) with respect to the first
Distribution Date, the period from and including the Original Issue Date to,
but excluding, the first Distribution Date and (ii) with respect to any
Distribution Date thereafter, the period from and including the preceding
Distribution Date but excluding such current Distribution Date.
"Interest Distribution Amount" shall mean, with respect to each
Distribution Date, (i) for so long as the Swap Agreement shall not have been
terminated, an amount equal to the Floating Rate Payor Payment Amount (as
defined in the Swap Agreement) and (ii) following any termination of the Swap
Agreement, an amount equal to accrued interest at a rate of 7.45% per annum on
the outstanding Certificate Principal Balance of the Certificates (calculated
on the basis of a 360-day year of twelve 30-day months).
"Interest Rate" shall mean, 4.63% per annum until the Distribution
Date in March 2004 and, thereafter, for each Interest Accrual Period, the
Ten-Year USD-ISDA-Swap Rate (as defined herein), calculated on a 30/360 day
count convention as determined pursuant to the Swap Agreement. Following the
occurrence of a Swap Agreement Termination Event that is not a Trust
Termination Event, interest will be payable at a fixed rate equal to 7.45% per
annum.
"Marketing Agent" shall mean Xxxxxx Brothers Inc.
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"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.
"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 Sections 7(a) and 7(b)
hereof.
"Optional Exchange Date" shall mean any date on which Underlying
Securities subject to an Optional Exchange are distributed to a
Certificateholder.
"Partial Swap Agreement Termination Event" shall have the meaning
specified in the Swap Agreement.
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"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.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated
January 29, 2004, relating to the Certificates.
"Rate Determination Date" shall mean, for each Interest Accrual
Period, the second U.S. Government Securities Business Day preceding the
commencement of such Interest Accrual Period.
"Rating Agency" shall mean Moody's and S&P.
"Record Date" shall mean, with respect to each Distribution Date,
the day immediately preceding the related Distribution Date.
"Reuters Screen" means, when used in connection with any designated
page and any floating rate payment under the Swap Agreement, the display page
so designated on the Reuters Money 3000 Service (or such other page as may
replace that page on that service for the purpose of displaying rates or
prices comparable to that floating rate payment).
"Required Percentage-Amendment" shall be 66-2/3% of the aggregate
Voting Rights.
"Required Percentage-Direction of Trustee" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Remedies" shall be 66-2/3% of the aggregate
Voting Rights.
"Required Percentage-Removal" shall be 66-2/3% of the aggregate
Voting Rights.
"Reset Date" shall mean, until the Final Scheduled Distribution
Date, each Distribution Date, commencing on the Distribution Date in March
2004.
"Required Rating" shall mean, in the case of Moody's, the rating
assigned to the Underlying Securities by Moody's as of the Closing Date, and,
in the case of S&P, the rating assigned to the Underlying Securities by S&P as
of the Closing Date.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"Sale Procedure" shall mean the process by which the Marketing
Agent, on behalf of the Trust, will sell the Underlying Securities to the
solicited bidder (which bidders will be determined by the Marketing Agent in
its sole and absolute discretion and which bidders may include Xxxxxx Brothers
Inc. or any of its Affiliates but in any case shall include at least two
bidders which are not affiliated with Xxxxxx Brothers Inc.; provided, however,
that neither Xxxxxx Brothers Inc. or any of its affiliates is obligated to
bid, and that such bidders need not be
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limited to recognized broker dealers; and provided further that if Xxxxxx
Brothers Inc. or any of its affiliates are bidders, any bid made by them shall
not be greater than the fair value of the Underlying Securities) that provides
the highest firm bid for the Underlying Securities. In the sole judgement of
the Marketing Agent, bids may be evaluated on the basis of bids for all or a
portion of the Underlying Securities being sold or any other basis selected in
a commercially reasonable manner by the Marketing Agent.
"SEC Reporting Failure" shall mean the date determined by the
Depositor within a reasonable time following the Underlying Securities
Guarantor'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 have the meaning set forth in
Section 18 hereof.
"Series" shall mean DaimlerChrysler Debenture-Backed Series 2004-3.
"Swap Agreement" shall mean the ISDA Master Agreement dated as of
the Closing Date, between the Trust and the Swap Counterparty (including the
Schedule thereto) as supplemented by the Confirmation dated February 11, 2004,
in the form attached hereto as Exhibit C.
"Swap Counterparty" shall mean Xxxxxx Brothers Special Financing
Inc., or any permitted successor or assign thereto.
"Swap Guarantor" shall mean Xxxxxx Brothers Holdings Inc.
"Swap Agreement Termination Event" shall mean the occurrence of any
event that would constitute an "Event of Default" or "Termination Event" under
the Swap Agreement.
"Ten-Year USD-ISDA-Swap Rate" will be the rate for U.S. dollar swaps
with a maturity of ten years, expressed as a percentage, which appears on the
Reuters Screen ISDAFIX1 Page as of 11:00 a.m., New York City time, on the day
that is two U.S. Government Securities Business Days prior to the Distribution
Date upon which an Interest Accrual Period commences. If the Ten-Year
USD-ISDA-Swap Rate does not appear on the Reuters Screen ISDAFIX1 Page on any
such U.S. Government Securities Business Days, then such rate will be
determined based on the mid-market semi-annual swap rate quotations provided
by the reference banks at approximately 11:00 a.m., New York City time, two
U.S. Government Securities Business Days prior to the commencement of the
related Interest Accrual Period, and, for this purpose, the semi-annual swap
rate means the mean of the bid and offered rates for the semi-annual fixed
leg, calculated on a 30/360 day count basis, of a fixed-for-floating U.S.
Dollar interest rate swap transaction with a term equal to ten years
commencing on that Reset Date and in a representative amount with an
acknowledged dealer of good credit in the swap market, where the floating leg,
calculated on an Actual/360 day count basis, is equivalent to USD-LIBOR-BBA
with a designated maturity of three months. The Calculation Agent will request
the principal New York City office of each of the reference banks to provide a
quotation of its rate. If at least three quotations are provided, the rate for
that Reset Date will be arithmetic mean
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of the quotations, eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, on of the lowest).
"Trustee Fee" shall mean the amount paid to the Trustee by the
Depositor on the Closing Date.
"Trust Property" shall mean the Underlying Securities described on
Schedule I hereto and the Swap Agreement and the Certificate Account; each
subject to the obligations of the Trust under the Swap Agreement.
"Trust Termination Event" shall mean a Swap Agreement Termination
Event caused by the occurrence of an event specified in Sections 5(a)(ix) and
5(b)(v)of the Swap Agreement.
"Underlying Securities Bankruptcy Default" shall mean the occurrence
of an Underlying Securities Event of Default relating to a bankruptcy,
insolvency or reorganization of the Underlying Securities Issuer.
"Underlying Securities" shall mean $25,000,000 aggregate principal
amount of 7.45% Debentures, issued by the Underlying Securities Issuer, as set
forth in Schedule I attached hereto.
"Underlying Securities Event of Default" shall mean any "Event of
Default" under the Underlying Securities Indenture.
"Underlying Securities Guarantor" shall DaimlerChrysler AG.
"Underlying Securities Indenture" shall mean the indenture, dated as
of March 1, 1985, as amended and supplemented by a first supplemental
indenture dated as of May 30, 1986, a second supplemental indenture dated as
of December 31, 1989 and a third supplemental indenture dated as of May 1,
1990, each as between the Underlying Securities Issuer and the Underlying
Securities Trustee and a fourth supplemental indenture, dated as of February
15, 1999, among the Underlying Securities Guarantor, the Underlying Securities
Issuer and the Underlying Securities Trustee, pursuant to which the Underlying
Securities were issued.
"Underlying Securities Issuer" shall mean Chrysler Corporation,
predecessor to Daimler Chrysler Corporation.
"Underlying Securities Payment Default" shall mean the occurrence of
an Underlying Securities Event of Default relating to the payment of interest
on the Underlying Securities or the payment of principal of or premium, if
any, on the Underlying Securities when due.
"Underlying Securities Trustee" shall mean State Street Bank and
Trust or any successor thereto acting as indenture trustee pursuant to the
Underlying Securities Indenture.
"Underwriter" shall mean Xxxxxx Brothers Inc.
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"U.S. Government Securities Business Day" means, any day except for
a Saturday, Sunday or a day on which The Bond Market Association recommends
that the fixed income departments of its members be closed for the entire day
for purposes of trading in U.S. government securities.
"Voting Rights" shall be allocated among all 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"
"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"
"Guaranteed Investment Contract"
"Letter of Credit"
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"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series 2004-3 Trust." The certificates
evidencing certain undivided ownership interests therein shall be known as
"Corporate-Backed Trust Certificates, DaimlerChrysler Debenture-Backed Series
2004-3" (the "Certificates"). The Trust is also issuing call warrants with
respect to the Certificates ("Call Warrants").
(a) The Certificates shall be held through the Depository in book-entry
form and shall be substantially in the form attached hereto as Exhibit A. The
Certificates shall be issued in denominations of $25. Except as provided in
the Standard Terms and in paragraph (d) of this Section, the Trust shall not
issue additional Certificates or incur any indebtedness.
(b) The Certificates have an initial aggregate Certificate Principal
Balance of $25,000,000.
(c) The holders of the Certificates will be entitled to receive on each
Distribution Date an amount equal to the related Interest Distribution Amount.
(d) The Depositor may sell to the Trustee additional Underlying
Securities on any date hereafter upon at least 3 Business Days' notice to the
Trustee (or such shorter period as shall be mutually satisfactory to the
Depositor and the Trustee) and upon (i) satisfaction of the Rating
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Agency Condition, (ii) prior consent of the Swap Counterparty and (iii)
delivery of an Opinion of Counsel to the effect that the sale of such
additional Underlying Securities will not cause the Trust to be taxed as an
association or publicly traded partnership taxable as a corporation for
federal income tax purposes. Each condition to be satisfied with respect to a
sale of Underlying Securities on or prior to the Closing Date shall be
satisfied with respect to a sale of additional Underlying Securities no later
than the date of sale thereof, each representation and warranty set forth in
the Standard Terms to be made on the Closing Date shall be made on such date
of sale, and from and after such date of sale, all Underlying Securities held
by the Trustee shall be held on the same terms and conditions. Upon such sale
to the Trustee, the Trustee shall deposit such additional Underlying
Securities in the Certificate Account, and shall authenticate and deliver to
the Depositor, on its order, Certificates in a Certificate Principal Balance
equal to the principal amount of such additional Underlying Securities, and
Call Warrants related thereto. Any such additional Certificates authenticated
and delivered shall have the same terms and rank pari passu with the
Certificates previously issued in accordance with this Series Supplement.
(e) On the Distribution Date occurring in March 2004, the Trustee shall
cause the Trust to pay to the Depositor the amount of interest accrued and
paid on the Underlying Securities from September 1, 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 March 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 shall have a claim for
such amount. If Available Funds are insufficient to pay such amount, the
Trustee will pay the Depositor its pro rata share, based on the ratio the
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.
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;
(b) the duly authorized and executed Swap Agreement; and
(c) 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 Section 6, on
each applicable Distribution Date, the Trustee shall apply Available Funds in
the Certificate Account as follows:
(i) The Trustee will pay from Available Interest Funds:
(1) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee in accordance
with Section 8(b) below and approved by 100% of the
Certificateholders; and
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(2) second, to the holders of the Certificates, interest
accrued and unpaid, pro rata in proportion to their entitlements
thereto;
provided, however, that if the Trustee has not received any amounts
of Available Interest Funds on or prior to the related Distribution Date, such
amounts shall be applied in accordance with this Section 5(a) promptly upon
receipt of such amounts.
(ii) The Trustee will pay Available Principal Funds, first, to the
Trustee, as reimbursement for any Extraordinary Trust Expenses incurred
by the Trustee in accordance with Section 8(b) below and approved by 100%
of the Certificateholders; and second, to the Certificateholders, pro
rata, from Available Principal Funds, an amount not to exceed the then
outstanding principal on the 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 first, to the Trustee, as reasonable compensation for services
rendered to the Depositor, up to $1,000 and, thereafter, to the
Certificateholders, pro rata.
Any portion of the Available Funds (i) that does not constitute principal of,
or interest on, the Underlying Securities, (ii) that is not received in
connection with a redemption, prepayment or liquidation of the Underlying
Securities and (iii) for which allocation by the Trustee is not otherwise
contemplated by this Series Supplement, shall be remitted by the Trustee to
the Certificateholders.
(b) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part due to the occurrence of
an Underlying Securities Payment Default, an Underlying Securities Bankruptcy
Default or an SEC Reporting Failure, the proceeds received by the Trustee will
be allocated:
(i) first, to the certificateholders, an amount equal to the
principal amount of the Underlying Securities so redeemed,
prepaid or liquidated plus accrued and unpaid interest on the
amount of Certificates so redeemed, prepaid or liquidated, and
(ii) second, any remainder shall be paid to the Swap Counterparty.
(c) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part for any reason other than
due to the occurrence of an Underlying Securities Payment Default, an
Underlying Securities Bankruptcy Default, an SEC Reporting Failure or their
maturity, the proceeds received by the Trustee will be allocated in the
following order of priority:
(i) first, 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,
(ii) second, to the certificateholders, an amount equal to the
principal amount of the Underlying Securities so redeemed,
prepaid or liquidated plus
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accrued and unpaid interest on the amount of Certificates so
redeemed, prepaid or liquidated, and
(iii) third, any remainder shall be paid to the Swap Counterparty.
Section 6. Early Redemption of Certificates.
(a) Upon the occurrence of an Underlying Securities Payment Default or an
Underlying Securities Bankruptcy Default, unless otherwise instructed by
holders of Certificates representing a majority of the Voting Rights, thirty
(30) days after giving notice pursuant to Section 10 hereof, the Trustee shall
sell the Underlying Securities pursuant to Section 15 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 Sections 5(b) 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.
(b) 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 and the Certificateholders fail to elect pursuant to
Section 6(d) to receive their pro rata portion of the Underlying Securities,
to sell the Underlying Securities and distribute the proceeds of such sale to
the Certificateholders in accordance with Section 5(c).
(c) If the Trustee receives non-cash property in respect of the
Underlying Securities as a result of a payment default on the Underlying
Securities (including from the sale thereof), the Trustee will promptly give
notice to the Depository, or for any Certificates which are not then held by
DTC or any other depository, directly to the registered holders of the
Certificates then outstanding and unpaid and to the Warrant Agent. Such notice
shall state that the Trustee shall and the Trustee shall, not later than 30
days after the receipt of such property, allocate and distribute such property
to the Holders of Certificates then outstanding and unpaid (after deducting
the costs incurred in connection therewith) their pro rata portion of such
property. Property other than cash will be liquidated by the Trustee, and the
proceeds thereof distributed in cash, only to the extent necessary to avoid
distribution of fractional securities to Certificateholders. In-kind
distribution of such property to Certificateholders, based on the market value
of such property as of the date of distribution to Certificateholders, will be
deemed to reduce the Certificate Principal Balance on a dollar-for-dollar
basis.
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(d) Within five Business Days (or such longer period as shall be
acceptable to the Trustee) of receipt of notice of a Trust Termination Event
occurring in connection with a redemption, prepayment or liquidation in whole
or in part of the Underlying Securities, each Certificateholder may direct the
Trustee to distribute all or a portion of such Certificateholder's pro rata
share of the Underlying Securities to it, in lieu of any proceeds received
upon liquidation of the Underlying Securities. The respective pro rata shares
of the Certificateholders in the Underlying Securities shall be determined by
allocating the portion of the principal amount remaining after reimbursement
of the Trustee for any Extraordinary Trust Expenses approved by 100% of the
Certificateholders and based on the then unpaid Certificate Principal Balances
of their Certificates. Any proceeds from the liquidation of Underlying
Securities will be distributed in the manner described under Section 5(b) and
Section 5(c), as applicable.
Section 7. Optional Call; Optional Exchange.
(a) On (A) any Distribution Date, (B) any date on which the Underlying
Securities Issuer consummates a tender offer for some or all of the Underlying
Securities or (C) any date on which the Underlying Securities are to be
redeemed by the Underlying Securities Issuer, any holder of Certificates and
the related Call Warrants, if Call Warrants related to such Certificates are
outstanding, may exchange such Certificates and, if applicable, Call Warrants,
for a distribution of Underlying Securities representing the same percentage
of the Underlying Securities as such Certificates represent of all outstanding
Certificates. On any Call Date, any Warrant Holder may exchange Called
Certificates for a distribution of Underlying Securities representing the same
percentage of Underlying Securities as such Called Certificates represent of
all outstanding Certificates; provided that any such exchange shall either (x)
result from an exercise of all Call Warrants owned by such Warrant Holder or
(y) occur on a Call Date on which such Warrant Holder, alone or together with
one or more other Warrant Holders, shall exchange Called Certificates relating
to Underlying Securities having an aggregate principal amount equal to or in
excess of the product of (i) 0.1 and (ii) the aggregate principal amount of
the Underlying Securities deposited into the Trust on the Closing Date.
(b) The following conditions shall apply to any Optional Exchange.
(i) A notice specifying the number of Certificates being surrendered
and the Optional Exchange Date shall be delivered to the Trustee no less
than 5 days (or such shorter period acceptable to the Trustee) but not
more than 30 days before the Optional Exchange Date; provided that for an
Optional Exchange to occur on a Call Date, unless otherwise specified
therein, the Call Notice shall be deemed to be the notice required
hereunder.
(ii) Certificates and, if applicable, the Call Warrants, shall be
surrendered to the Trustee no later than 10:00 a.m. (New York City time)
on the Optional Exchange Date; provided that for an Optional Exchange to
occur on a Call Date, payment of the Call Price to the Warrant Agent
pursuant to Section 1.1(a)(iii) of the Warrant Agent Agreement shall
satisfy the requirement to surrender Certificates.
13
(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) The aggregate principal balance of Certificates exchanged in
connection with any Optional Exchange pursuant to this Section shall be
in an amount that will entitle the Certificateholders thereof to
Underlying Securities in an even multiple of the minimum denomination of
such Underlying Securities.
(viii) In the event a Termination Payment shall be payable by the
Trust to the Swap Counterparty in connection with a termination of the
Swap Agreement, in whole or in part, as a result of such Optional
Exchange, the Person consummating the Optional Exchange must remit an
amount equal to such Termination Payment, to the Trustee for payment to
the Swap Counterparty. If any Termination Payment shall be payable by the
Swap Counterparty, the Trustee will remit such payment to the Person
consummating the Optional Exchange.
(ix) In the event such Optional Exchange shall occur prior to the
Distribution Date in March 2004, the Certificateholders shall have paid
to the Trustee, for distribution to the Depositor, on the Optional
Exchange Date an amount equal to the sum obtained by multiplying the
amount of accrued interest on the Underlying Securities from September 1,
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.
(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
14
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) Upon receipt of a Call Notice, the Trustee shall provide a
conditional call notice to the Depository not less than 3 Business Days
prior to the Call Date.
(iv) Delivery of a Call Notice does not give rise to an obligation
on the part of the Warrant Holder to pay the Call Price. If, by 10:00
a.m. (New York City time) on the Call Date, the Warrant Holder has not
paid the Call Price, except in connection with a Call Notice relating to
a tender offer for 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 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.
(v) Subject to receipt of the Call Price, the Trustee shall pay the
applicable portion of the Call Price to the Certificateholders on the
Call Date. The Call Price for the Certificates in respect of partial
calls shall be allocated pro rata to the Certificateholders.
(vi) The Trustee shall not consent to any amendment or modification
of this Agreement (including the Standard Terms) which would adversely
affect the Warrant Holders (including, without limitation, any alteration
of the timing or amount of any payment of the Call Price or any other
provision of this Agreement in a manner adverse to the Warrant Holders)
without the prior written consent of 100% of the Warrant Holders. For
purposes of this clause, no amendment, modification or supplement
required to provide for any purchase by the Trustee of additional
Underlying Securities and authentication and delivery by the Trustee of
additional Certificates and Call Warrants pursuant to Section 3(d) shall
be deemed to adversely affect the Warrant Holders.
(vii) The Trustee shall not be obligated to determine whether an
Optional Call complies with the applicable provisions for exemption under
Rule 3a-7 of the Investment Company Act of 1940, as amended, or the rules
or regulations promulgated thereunder.
(e) This Section 7 shall not provide the Warrant Holder with a lien
against, an interest in or a right to specific performance with respect to the
Underlying Securities; provided that
15
satisfaction of the conditions set forth in Section 7(b) shall entitle the
Certificateholders or the Warrant Holders, as applicable, to a distribution of
the Underlying Securities.
(f) The rights of the Certificateholders under the Trust Agreement and
the Certificates are limited by the terms, provisions and conditions of the
Trust Agreement, the Warrant Agent Agreement and the Call Warrants with
respect to the exercise of the Call Warrants by the Warrant Holder. The
Certificateholders, by their acceptance of Certificates, covenant and agree to
tender any and all Called Certificates to the Trustee upon the Warrant
Holder's exercise of Call Warrants and payment of the Call Price for such
Certificates in accordance with the provisions hereof and of the Warrant Agent
Agreement.
(g) (i) If the Trustee receives notice of a tender offer for some or all
of the Underlying Securities, the Trustee shall within one Business Day notify
the Warrant Agent and forward to the Warrant Agent copies of all materials
received by the Trustee in connection therewith. If the Trustee receives a
Call Notice from any Warrant Holder no later than five Business Days prior to
the expiration of the tender offer acceptance period that such Warrant Holder
desires to exercise all or a portion of its Call Warrants in connection with
the consummation of any such tender offer, then the Trustee shall tender, in
compliance with the tender offer requirements, an amount of Underlying
Securities equal to the amount of Underlying Securities that would be
distributable to the Warrant Holder with respect to an Optional Exchange of
the Called Certificates called by such Warrant Holder; provided that any
Optional Call or Optional Exchange undertaken in connection with any such
tender offer shall be subject to the provisions of Section 7 hereof.
(ii) The Call Date and Optional Exchange Date for any exercise of
Call Warrants in connection with a tender offer shall be deemed to be the
Business Day on which such Underlying Securities are accepted for payment
and paid for.
(iii) The Call Price shall be deducted from the tender offer
proceeds and paid to Certificateholders in 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
16
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 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 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 Underlying Securities in
connection with a 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 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 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
17
effect, and (2) any Call Warrants relating to such Call Notices will not
be exercised and will remain outstanding.
Section 8. Trustee's Fees.
(a) As compensation for its services hereunder, the Trustee shall be
entitled to the Trustee Fee and any amounts payable under clauses 5(a)(iii)
above. The Trustee Fee shall be paid by the Depositor and not from Trust
Property. The Trustee shall bear all Ordinary Expenses. Failure by the
Depositor to pay such amount shall not entitle the Trustee to any payment or
reimbursement from the Trust, nor shall such failure release the Trustee from
the duties it is required to perform under the Trust Agreement.
(b) Extraordinary Trust Expenses shall not be paid out of the Trust
Property unless all the holders of the Certificates then outstanding have
directed the Trustee to incur such Extraordinary Trust Expenses. The Trustee
may incur other Extraordinary Trust Expenses if any lesser percentage of the
Certificateholders requesting such action pursuant hereto reimburse the
Trustee for the cost thereof from their own funds in advance. If Extraordinary
Trust Expenses are not approved unanimously as set forth in the first sentence
of this Section 8(b), such Extraordinary Trust Expenses shall not be an
obligation of the Trust, and the Trustee shall not file any claim against the
Trust therefor notwithstanding failure of Certificateholders to reimburse the
Trustee.
Section 9. Swap Payments. For so long as the Swap Agreement shall not
have been terminated, the Trust shall pay to the Swap Counterparty, (i) all
interest payments paid to the Trust in respect of the Underlying Securities on
the date such amounts are received by the Trust, excluding any amount of
interest that accrued with respect to the Underlying Securities from the
Underlying Securities Payment Date next preceding the Closing Date to, but
excluding, the Closing Date and (ii) upon the occurrence of an Optional
Exchange for the Underlying Securities, an amount equal to any Early
Termination Payment owed by it to the Swap Counterparty under the Swap
Agreement, provided, however, that such amount will be an obligation of the
Warrant Holder seeking to effectuate the Optional Exchange.
Section 10. Notices of Swap Agreement Termination Events and Underlying
Securities Events of Default.
As promptly as practicable after, and in any event within 30 days after,
the occurrence of any Swap Agreement Termination Event or Underlying
Securities Event of Default actually known to the Trustee, the Trustee shall
give notice of such Swap Agreement Termination Event or Underlying Securities
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.
Section 11. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms shall
not apply to the Corporate-Backed Trust Certificates, DaimlerChrysler
Debenture-Backed Series 2004-3 Certificates.
18
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series 2004-3 Certificates.
(c) The Trustee shall simultaneously forward reports to
Certificateholders and to the Swap Counterparty 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 Corporate-Backed Trust Certificates, DaimlerChrysler
Debenture-Backed Series 2004-3 Certificates.
(f) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Losses (as defined in the Standard
Terms).
(g) 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 the Swap
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.
(h) 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. Section
2.01(f) of the Standard Terms shall be superseded by this provision.
(i) 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.
(j) Notwithstanding anything in the Standard Terms to the contrary, the
Trustee, upon written direction by the Depositor, will execute the
Certificates.
(k) 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
19
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.
(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.
20
(p) All directions, demands and notices hereunder or under the Standard
Terms shall be in writing and shall be delivered as set forth below (unless
written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee or the Warrant Agent, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
21
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
If to the Swap Counterparty, to:
Xxxxxx Brothers Special Financing Inc.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Documentation Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any notices given to the Depositor under this Agreement shall also
be given to the Swap Counterparty and Warrant Holders.
(q) Each of the representations, covenants and agreements made herein by
each of the Depositor and the Trustee are for the benefit of the
Certificateholders.
(r) The provisions of Section 2.01(d)(iii) of the Standard Terms shall
not apply to the Corporate-Backed Trust Certificates, DaimlerChrysler
Debenture-Backed Series 2004-3 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) For purposes of making any determination under the Swap Agreement, in
connection with the termination of the Swap Agreement, the Trustee hereby
appoints the Depositor as the agent of the Trustee.
22
Section 12. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS
PROVISIONS THEREOF.
Section 13. Counterparts. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and
all such counterparts shall constitute but one and the same instrument.
Section 14. Termination of the Trust. The Trust shall terminate upon the
earliest to occur of (i) the distribution in full of all amounts due to the
Certificateholders following a Swap Agreement Termination Event; (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.
Section 15. Sale of Underlying Securities. In the event of a sale of the
Underlying Securities pursuant to Section 6 hereof, the Marketing Agent shall
sell the Underlying Securities in accordance with the Sale Procedures. 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 15, as the case may be, against
payment in same day funds deposited into the Certificate Account.
Section 16. Amendments. Notwithstanding anything in the Trust Agreement
to the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall not enter into any amendment or
modification of the Trust Agreement which would adversely affect in any
material respect the interests of the holders of the Certificates without the
consent of the holders of 100% of such 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. The Trustee shall not enter
into any amendment or modification of the Trust Agreement that would affect
the method, amount or timing of payments due to the Swap Counterparty or the
consent rights of the Swap Counterparty hereunder without the prior written
consent of the Swap Counterparty. Unless otherwise agreed, the Trustee shall
provide five Business Days written notice to each Rating Agency and the Swap
Counterparty before entering into any amendment or modification of the Trust
Agreement pursuant to this Section 16.
Section 17. Voting of Underlying Securities, Modification of Underlying
Securities Indenture, Modification of Swap Agreement.
(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 Underlying Securities Indenture or any other
document thereunder or relating thereto, or receives
23
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 the Swap Counterparty and each
Certificateholder of record as of such date. Notwithstanding anything in the
Trust Agreement to the contrary, until a Swap Agreement Termination Event has
occurred, the Swap Counterparty shall have all rights to vote on any matters
with respect to the Underlying Securities. During the continuance of a Swap
Agreement Termination Event, the Certificateholders shall have all rights to
vote on any matters with respect to the Underlying Securities, and in such
event: (i) 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; (ii) the Trustee shall consent or vote,
or refrain from consenting or voting, in the same proportion (based on the
relative outstanding Certificate Principal Balances of the Certificates) as
the Certificates of the Trust were actually voted or not voted by the
Certificateholders thereof as of a date determined by the Trustee prior to the
date on which such consent or vote is required. However, notwithstanding
anything in the Trust Agreement to the contrary (including this Section 17),
the Trustee shall at no time vote on or consent to any matter (A) 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, (B) which would alter the timing or amount of any
payment on the Underlying Securities, including, without limitation, any
demand to accelerate the Underlying Securities, except in the event of a
default under the Underlying Securities or an event which with the passage of
time would become an event of default under the Underlying Securities and with
(prior to a Swap Agreement Termination Event) the consent of the Swap
Counterparty or (during the continuance of a Swap Agreement Termination Event)
the unanimous consent of holders of all outstanding Certificates and 100% of
the Warrant Holders, or (C) 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 Underlying Securities Indenture and only with the consent
of (prior to a Swap Agreement Termination Event) the Swap Counterparty or
(during the continuance of a Swap Agreement Termination Event)
Certificateholders representing 100% of the Certificates and 100% of the
Warrant Holders. The Trustee shall have no liability for any failure to act
resulting from late return of, or failure to return, directions requested by
the Trustee from the Certificateholders or the Swap Counterparty.
(b) In the event that an offer is made by the Underlying Securities
Issuer or any other Person 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 Swap
Counterparty and the Certificateholders of such offer promptly. The Trustee
must reject any such offer unless, prior to the occurrence of a Swap Agreement
Termination Event, the Trustee is directed by the Swap Counterparty to accept
such offer and the Trustee has received the tax opinion described above.
During the continuance of a Swap Agreement Termination Event, the Trustee must
reject any such offer unless a default on the Underlying Securities shall have
occurred, and the Trustee is directed by affirmative vote of the holders of
100% of the Certificates to accept such offer and the Trustee has received the
tax opinion described above. If pursuant to the preceding two sentences, the
Trustee accepts any such offer the Trustee shall promptly notify the Rating
Agencies.
24
(c) If an event of default under the Underlying Securities Indenture
occurs and is continuing, and if directed by the Swap Counterparty, or, during
the continuance of a Swap Agreement Termination Event, a majority of the
outstanding Certificateholders, the Trustee shall vote the Underlying
Securities in favor of directing, or take such other action as may be
appropriate to direct, the Underlying Securities Trustee to declare the unpaid
principal amount of the Underlying Securities and any accrued and unpaid
interest thereon to be due and payable.
(d) Until a Responsible Officer of the Trustee has actual knowledge of
the occurrence of an event that would constitute a Swap Agreement Termination
Event, the Trustee shall be entitled to assume (and shall be fully protected,
indemnified and held harmless in doing so, in accordance with Section 7.12 of
the Standard Terms) that no Swap Agreement Termination Event has occurred and
may accordingly seek instructions under this Section 17 exclusively from the
Swap Counterparty.
(e) The Trustee shall not consent to any amendment to the Swap Agreement
unless (i) it shall have received the prior consent to such amendment of
Certificateholders representing 66 2/3% of the aggregate Voting Rights and
100% of the Warrant Holders and (ii) each Rating Agency shall have confirmed
in writing that such amendment will not result in a reduction or withdrawal of
the then current rating of the Certificates; provided, however, the Trustee
may consent to any amendment to the Swap Agreement without the consent of the
certificateholders and Warrant Holders to cure any ambiguity in, or to correct
or supplement any provision of the Swap Agreement which may be inconsistent
with any other provision thereof, or to otherwise cure any defect therein,
provided that any such amendment does not materially adversely affect the
interest of the certificateholders or the Warrant Holders and that each Rating
Agency shall have given its prior written confirmation that such amendment
will not result in a reduction or withdrawal of the then current rating of the
Certificates; provided further, however, that notwithstanding anything to the
contrary, the Trustee shall not consent to any amendment to the Swap Agreement
that alters the timing or amount of any payment on the Swap Agreement unless
(i) it shall have received the prior consent to such amendment of
certificateholders representing 100% of the aggregate Voting Rights and 100%
of the Warrant Holders and (ii) each Rating Agency been given prior written
notice of any such amendment (and no rating confirmation shall be required).
Section 18. Additional Depositor Representation. It is the express intent
of the parties hereto that the conveyance of the Underlying Securities by the
Depositor to the Trustee be, and be construed as, a sale of the Underlying
Securities by the Depositor and not a pledge of any Underlying Securities by
the Depositor to secure a debt or other obligation of the Depositor. In the
event that, notwithstanding the aforementioned intent of the parties, any
Underlying Securities are held to be property of the Depositor, then, it is
the express intent of the parties that such conveyance be deemed a pledge of
such Underlying Securities 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:
25
(i) In the event the Underlying Securities are held to be property of
the Depositor, then the Trust Agreement creates a valid and
continuing security interest (as defined in the 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.
26
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 Xxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxx
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,
DaimlerChrysler Debenture-Backed
Series 2004-3 Trust
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
27
SCHEDULE I
CORPORATE-BACKED TRUST CERTIFICATES, DAIMLERCHRYSLER DEBENTURE-
BACKED SERIES 2004-3
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 7.45 Debentures Due 2027.
Issuer: Chrysler Corporation, predecessor to
Daimler Chrysler Corporation.
Underlying Securities Guarantor: DaimlerChrysler AG.
CUSIP Number: 000000XX0.
Principal Amount Deposited: $25,000,000.
Original Issue Date: The Underlying Securities were issued
on March 3, 1997.
Principal Amount of
Underlying Securities
Originally Issued: $600,000,000.
Maturity Date: March 1, 2027.
Interest Rate: 7.45% per annum.
Interest Payment Dates: March 1st and September 1st.
I-1
EXHIBIT A
FORM OF TRUST CERTIFICATE
TRUST CERTIFICATE
-----------------
NUMBER 1 1,000,000 $25 PAR CERTIFICATES
CUSIP NO. 21988K 33 9
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 CERTIFICATEHOLDERS, BY THEIR ACCEPTANCE OF CERTIFICATES,
COVENANT AND AGREE TO TENDER ANY AND ALL CALLED CERTIFICATES TO THE TRUSTEE
UPON THE WARRANT HOLDER'S EXERCISE OF CALL WARRANTS AND PAYMENT OF THE CALL
PRICE FOR SUCH CERTIFICATES IN ACCORDANCE WITH THE PROVISIONS HEREOF AND OF
THE WARRANT AGENT AGREEMENT.
A-1
XXXXXX ABS CORPORATION
1,000,000 $25 PAR CERTIFICATES
CORPORATE-BACKED TRUST CERTIFICATES, DAIMLERCHRYSLER DEBENTURE-
BACKED SERIES 2004-3
INTEREST RATE: 4.63% UNTIL THE DISTRIBUTION DATE IN MARCH 2004 AND THE
TEN-YEAR USD-ISDA-SWAP RATE THEREAFTER
evidencing a proportionate undivided beneficial ownership interest
in the Trust, as defined below, the property of which consists principally of
$25,000,000 aggregate principal amount of 7.45% Debentures due 2027, issued by
Chrysler Corporation, predecessor to Daimler Chrysler Corporation (the
"Underlying Securities Issuer") and all payments received thereon, deposited
in trust by Xxxxxx ABS Corporation (the "Depositor"), and certain rights of
the Trust under the Swap Agreement (the "Trust Property").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an
aggregate of $25,000,000 principal amount nonassessable, fully-paid,
proportionate undivided beneficial ownership interest in the Corporate-Backed
Trust Certificates, DaimlerChrysler Debenture-Backed Series 2004-3 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
Corporate-Backed Trust Certificates, DaimlerChrysler Debenture-Backed Series
2004-3, dated as of February 11, 2004 (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, DaimlerChrysler
Debenture-Backed Series 2004-3" (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, (ii) all payments on or collections in
respect of the Underlying Securities accrued on or after February 11, 2004,
together with any and all income, proceeds and payments with respect thereto;
provided, however, that any income from the investment of Trust funds in
certain permitted investments ("Eligible Investments") does not constitute
Trust Property and (iii) the rights of the Trust under the Swap Agreement
(subject to the Trust's obligations to the Swap Counterparty under the Swap
Agreement).
A-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-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, DAIMLERCHRYSLER
DEBENTURE-BACKED SERIES 2004-3
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
-----------------------------------------
Authorized Signatory
Dated: February 11, 2004
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series 2004-3, 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-4
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Swap Agreement and 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 Swap Counterparty and the Holders of the
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.
A-5
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall
terminate upon the earliest to occur of (i) the distribution in full of all
amounts due to the Certificateholders following a Swap Agreement Termination
Event; (ii) the Final Scheduled Distribution Date and (iii) the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
A-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-7
EXHIBIT B
WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
DAIMLERCHRYSLER DEBENTURE-BACKED SERIES 2004-3 TRUST
WARRANT AGENT AGREEMENT, dated as of February 11, 2004 (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,
DaimlerChrysler Debenture-Backed Series 2004-3 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 2004-3, dated as of February 11, 2004 (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.
B-1
(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, Certificates having a Certificate Principal
Balance equal to $25 per Call Warrant. 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. Any Warrant
Holder which is the Depositor or any Affiliate of the Depositor shall
receive the proceeds of the sale of the Called Underlying Securities and
shall not be entitled to receive the related Called Certificates or
Called Underlying Securities. "Called Underlying Securities" are
Underlying Securities which represent the same percentage of the
Underlying Securities as the Called Certificates represent of the
Certificates.
(c) The Warrant Agent shall notify the Trustee immediately upon its
receipt of a Call Notice and upon receipt of payment of the Call Price.
The Warrant Agent shall transfer the amount of any paid Call Price to the
Trustee in immediately available funds, for deposit in the Certificate
Account and application pursuant to the Trust Agreement on the applicable
Call Date (and, pending such transfer, shall hold such amount for the
benefit of the Warrant Holder in a segregated trust account).
(d) Delivery of a Call Notice does not give rise to an obligation on
the part of the Warrant Holder to pay the Call Price. If, by 10:00 a.m.
(New York City time) on the Call Date, the Warrant Holder has not paid
the Call Price, 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
B-2
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, 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.
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
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amount on or in respect of the Certificates or to enforce any of the covenants
of the Trust Agreement.
Section 1.5 Pro Rata Reduction of Call Warrants if Partial Redemption of
Underlying Securities. If Underlying Securities are redeemed in part by the
Underlying Securities Issuer and the Warrant Holders do not exercise their
Call Warrants 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 Certificates
callable by Call Warrants shall equal the amount of outstanding 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.
(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.
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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 THE CALL WARRANTS.
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
Certificated 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.
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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 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.
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(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 Certificated 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 Certificated 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.
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:
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"Business Day": As defined in the Trust Agreement.
"Call Date": Any Business Day that any holder of Call Warrants
designates as a Call Date occurring (i) on or after February 11, 2009, (ii)
after the Underlying Securities Issuer announces that it will redeem, prepay
or otherwise make an unscheduled payment on the Underlying Securities, (iii)
upon the occurrence of a Swap Agreement Termination Event, (iv) on or after
the date the Trustee notifies the Certificateholders of any proposed sale of
the Underlying Securities following the occurrence of an Underlying Securities
Payment Default, an Underlying Securities Bankruptcy Default or an SEC
Reporting Failure or (v) on any date on which the Underlying Securities Issuer
or an 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, 100% of the outstanding
Certificate Principal Balance of the 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.
"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": February 11, 2004.
"Depositor": As defined in the recitals.
"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.
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"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.
"Underlying Securities Bankruptcy Default": The occurrence of an
Underlying Securities Event of Default relating to a bankruptcy, insolvency or
reorganization of the Underlying Securities Issuer.
"Underlying Securities Payment Default": The occurrence of an
Underlying Securities Event of Default relating to the payment of interest on
the Underlying Securities or the payment of principal of or premium, if any,
on the Underlying Securities when due.
"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 Certificates, held by such Warrant Holder.
"Warrant Holder": As defined in Section 1.1(a) hereof.
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,
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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 hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the Chief Executive Officer, Chief Financial
Officer, Chief Operating Officer, President, a Vice President, a Senior
Vice President, a Managing Director, its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary of the Depositor, and
any Responsible Officer of the Trustee, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer.
(g) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Call
Warrants or other securities of the Trust or otherwise act as fully and
freely as though it were not Warrant Agent
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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 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
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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 Xxxxxx and Swap
Counterparty any notices received by it hereunder or pursuant to the Trust
Agreement or this Agreement by facsimile within one Business Day of receipt
thereof.
Section 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
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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 the Call Warrants, upon receipt of an opinion of
counsel satisfactory to the Warrant Agent that the provisions hereof
(including, without limitation, the following proviso) have 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 that each Rating Agency shall have given its prior written
confirmation 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, (iii)
reduce the percentage of aggregate Voting Rights required by (i) or (ii)
without the consent of the holders of all such affected Certificates or
(iv) adversely affect in any material repsect the interests of the Swap
Counterparty without the consent of the Swap Counterparty.
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 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.
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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.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date
first above written.
XXXXXX ABS CORPORATION,
as Depositor
By:
-------------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee and Authenticating Agent
By:
-------------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:
-------------------------------------------
Name:
Title:
B-15
EXHIBIT A
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, DaimlerChrysler Debenture-Backed
Series 2004-3
---------------------------------------------------------------------
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,
DaimlerChrysler Debenture-Backed Series 2004-3 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 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.
B-16
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 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
B-17
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.
B-18
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: _____________________________
B-19
EXHIBIT C
FORM OF SWAP AGREEMENT
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
(b) MASTER AGREEMENT
dated as of February 11, 2004
among
XXXXXX BROTHERS SPECIAL FINANCING and CORPORATE-BACKED TRUST
INC. CERTIFICATES, DAIMLERCHRYSLER
DEBENTURE-BACKED SERIES 2004-3
TRUST
(Party A) (Party B)
have entered and/or anticipate entering into one or more
transactions (each a "Transaction") that are or will be governed by this
Master Agreement, which includes the schedule (the "Schedule"), and the
documents and other confirming evidence (each a "Confirmation") exchanged
between the parties confirming those Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than
by payment), such delivery will be made for receipt on the due date in
the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this Agreement.
C-1
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date in
respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified in
this Agreement.
C-2
value of that which was (or would have been) required to be delivered as of
the originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding)
such Early Termination Date, at the Applicable Rate. Such amounts of interest
will be calculated on the basis of daily compounding and the actual number of
days elapsed. The fair market value of any obligation referred to in clause
(b) above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
XXXXXX BROTHERS SPECIAL FINANCING INC. CORPORATE-BACKED TRUST
CERTIFICATES, DAIMLERCHRYSLER
DEBENTURE-BACKED SERIES 2004-3
TRUST
(Party A) (Party B)
By: U.S. Bank Trust National Association, not in its
individual capacity but solely as Trustee under
By: _____________________________ the Trust Agreement
Name:
Title: By: _______________________________________________
Name:
Title:
C-3
SCHEDULE
to the Master Agreement
dated as of February 11, 2004
between
XXXXXX BROTHERS SPECIAL FINANCING INC. ("Party A"),
a corporation organized under
the laws of
the State of Delaware
and
CORPORATE-BACKED TRUST CERTIFICATES, DAIMLERCHRYSLER
DEBENTURE-BACKED SERIES 2004-3 TRUST ("Party B")
a trust created under the laws of the State of New York
pursuant to the Trust Agreement (as defined herein)
Section 19. Termination Provisions.
In this Agreement:-
(a) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v) Not Applicable.
Section 5(a)(vi) Not Applicable.
Section 5(a)(vii) Not Applicable.
Section 5(b)(iv) Not Applicable.
and in relation to Party B for the purpose of:-
Section 5(a)(v) Not Applicable.
Section 5(a)(vi) Not Applicable.
Section 5(a)(vii) Not Applicable.
Section 5(b)(iv) Not Applicable.
(b) "Specified Transaction" will have the meaning specified in Section 14
of this Agreement.
(c) Failure to Pay or Deliver. Section 5(a) is hereby amended by
replacing the word "third" with the word "fifth" in the last line of
subsection (i) thereof.
(d) Section 5(a) is hereby amended by: (1) deleting the word "or" at the
end of Subsection (vii) thereof; (2) deleting the period at the end of
Subsection (viii) thereof and (3) adding the following Subsection (ix) and
Subsection (x) at the end of such Section 5(a):
(ix) Underlying Securities Payment Default. An Underlying Securities
Payment Default shall have occurred and be continuing; or
C-4
(x) Underlying Securities Bankruptcy Default. An Underlying Securities
Bankruptcy Default shall have occurred and be continuing.
For the purpose of the Events of Default described in Section 5(a)(ix)
and 5(a)(x), the Defaulting Party shall be Party B.
(e) The provisions of Section 5(a) (as modified by (c) and (d) above) and
Section 5(b) will apply to Party A and to Party B as follows:-
Section 5(a) Party A Party B
------------ ------- -------
(i) "Failure to Pay or Deliver" Applicable. Applicable.
(ii) "Breach of Agreement" Not Applicable. Not Applicable.
(iii) "Credit Support Default" Applicable. Not Applicable.
(iv) "Misrepresentation" Not Applicable. Not Applicable.
(v) "Default under Specified Transaction" Not Applicable. Not Applicable.
(vi) "Cross Default" Not Applicable. Not Applicable.
(vii) "Bankruptcy" Applicable. Not Applicable.
(viii) "Merger Without Assumption" Not Applicable. Not Applicable.
(ix) "Underlying Securities Payment
Default" Not Applicable. Applicable.
(x) "Underlying Securities Bankruptcy
Default" Not Applicable. Applicable.
Section 5(b) Party A Party B
------------ ------- -------
(i) "Illegality" Applicable. Applicable.
(ii) "Tax Event" Not Applicable. Not Applicable.
(iii) "Tax Event Upon Merger" Not Applicable. Not Applicable.
(iv) "Credit Event Upon Merger" Not Applicable. Not Applicable.
(v) "Additional Termination Event" Applicable. Applicable.
(f) The following shall each be specified as "Additional Termination
Events" pursuant to Section 5(b)(v):
SEC Reporting Failure. If the Underlying Securities Guarantor either
(x) states in writing that it intends permanently to cease filing
periodic reports required under the Securities Exchange Act of 1934,
as amended or (y) fails to file all required periodic reports for
one full year (each, an "SEC Reporting Failure") and the Call
Warrant holders do not elect to exercise their call rights, the
Depositor shall within a reasonable period of time instruct the
Trustee to cause the Marketing Agent to liquidate the Underlying
Securities, in which case, (1) the Transactions shall be terminated
and (2) the Early Termination Date shall be the date on which the
Underlying Securities are liquidated. For the purposes the foregoing
Additional Termination Event, Party B shall be the Affected Party.
C-5
Optional Redemption. The exercise of optional redemption or other
prepayment of the Underlying Securities in accordance with Section 6
of the Series Supplement, in which case, (1) a portion of the
Notional Amount of the Transactions equal to the related optional
redemption shall be terminated and (2) the Early Termination Date
with respect to such portion of the Notional Amount of the
Transactions shall be the date on which the optional redemption is
exercised. For the purposes the foregoing Additional Termination
Event, Party B shall be the Affected Party.
Optional Exchange. The exercise of an Optional Exchange in
accordance with Section 7 of the Series Supplement, in which case,
(1) a portion of the Notional Amount of the Transactions equal to
the related Optional Exchange shall be terminated and (2) the Early
Termination Date with respect to such portion of the Notional Amount
of the Transactions shall be the related date the Optional Exchange
is exercised. For the purposes the foregoing Additional Termination
Event, Party B shall be the Affected Party.
(g) Automatic Early Termination. The "Automatic Early Termination"
provisions of Section 6(a) will not apply to Party A or Party B.
(h) Additional Definitions.
As used in this Schedule, the following terms shall have the following
meanings:
"Business Day" means any day (which is neither a Saturday nor a Sunday)
nor a day on which banks in New York City or the place of payment in
respect of the Underlying Securities are authorized or required to be
closed.
"LBHI" means Xxxxxx Brothers Holdings Inc.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Person" means any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality
thereof.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Underlying Securities Guarantor" means DaimlerChrysler AG.
(i) "Termination Currency" means United States Dollars ("USD").
Section 20. Tax Representations.
(A) Payer Tax Representation. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representations:
C-6
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e), 6(d)(ii), or 6(e) of
this Agreement) to be made by it to the other party under this Agreement.
In making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement, and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the
satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the other
party does not deliver a form or document under Section 4(a)(iii) by
reason of material prejudice to its legal or commercial position.
(B) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A makes the following representations:-
(i) The following representation applies to Party A:-
Party A is a corporation organized under the laws of the State of
Delaware.
(ii) The following representation applies to Party B:-
Party B is a trust that has not elected to be treated as a
corporation for U.S. federal income tax purposes.
Section 21. Agreement to Deliver Documents.
For the purpose of Section 4(a)(i) and Section 4(a)(ii) of this Agreement,
Party A and Party B each agree to deliver the following documents, as
applicable:-
(a) Tax forms, documents or certificates to be delivered are:
Party Form, Document Date by which Covered
required to or Certificate to be Delivered by
deliver -------------- --------------- Section
document 3(d)
----------- --------
Party A A complete and executed U.S. (i) Before the first No
Internal Revenue Service Form W- Payment Date under this
9 (or any successor thereto), that Agreement, (ii)
eliminates U.S. federal backup promptly upon
withholding tax on payments under reasonable demand by
this Agreement. Party B, and (iii)
promptly upon learning
that any such Form
previously provided by
C-7
Party Form, Document Date by which Covered
required to or Certificate to be Delivered by
deliver -------------- --------------- Section
document 3(d)
----------- --------
Party A has become
obsolete or incorrect.
Party B A complete and executed U.S. (i) Before the first No
Internal Revenue Service Form W- Payment Date under this
9 (or any successor thereto) and a Agreement, (ii)
complete and executed U.S. Internal promptly upon
Revenue Service Form W-8BEN, reasonable demand by
W-8IMY, W-8ECI or W-9 (or any Party A, and (iii)
successor thereto) from each promptly upon learning
Certificateholder (and, where that any such Form
applicable, such forms from the previously provided by
beneficial owners of such Party B has become
Certificates) and in any case in obsolete or incorrect.
which the Certificateholder is
eligible for the benefits of an
income tax treaty with the United
States, a Form W-8BEN including a
claim of treaty benefits under Part
II, claiming such benefits with
respect to all payments received
with respect to the Certificates, and
with Part III marked, in each case
that eliminates U.S. federal
withholding tax and backup
withholding on payments under this
Agreement.
(b) Other documents to be delivered are:
Party required
to deliver Form, Document Date by which Covered by
document or Certificate to be Delivered Section 3(d)
-------- -------------- --------------- -----------
Party A An opinion of counsel to Promptly after No
Party A substantially in execution of this
the form of Exhibit B Agreement.
this Schedule.
Party A An incumbency certificate Upon execution of this Yes
C-8
Party required
to deliver Form, Document Date by which Covered by
document or Certificate to be Delivered Section 3(d)
-------- -------------- --------------- -----------
with respect to the Agreement.
signatory of this
Agreement.
Party A A guarantee of LBHI Upon execution of this No
substantially in the form Agreement.
of Exhibit D to this
Schedule.
Party B An opinion of counsel to Promptly after No
Party B substantially in execution of this
the form of Exhibit C to Agreement.
this Schedule.
Party B (with An incumbency certificate Upon execution of this Yes
respect to the with respect to the Agreement.
Trustee) signatory of this
Agreement.
Party B (with A certified copy of the Upon execution of this Yes
respect to the resolution or resolutions Agreement (unless an
or applicable Bylaws (the Authorizing Resolution
"Authorizing Resolution") has previously been
of the Board of Directors furnished by the
or loan committee of the Trustee to Party A)
Trustee, certified by a and, with respect to
secretary, or an assistant each Swap Transaction
secretary of the Trustee, not covered by a
pursuant to which the previously furnished
Trustee is authorized, on Authorizing
behalf of the Trust, to Resolution, within five
enter into this Agreement Business Days of the
and each Swap Trade Date.
Transaction entered into
under this Agreement.
Party B A certified copy of the Upon execution of this Yes
Trust Agreement and each Agreement and on the
amendment thereof. date of each
amendment thereof.
Section 22. Miscellaneous.
(a) Addresses for Notices. For purpose of Section 10(a):
C-9
Address for notices or communications to Party A:-
Address: Xxxxxx Brothers Special Financing Inc.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Documentation Manager
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Address for notices or communications to Party B:-
Address: U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Facsimile No.: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c):--
Party A appoints as its Process Agent: Not Applicable.
Party B appoints as its Process Agent: Not Applicable.
(c) Offices. The provisions of Section 10(a) will apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this
Agreement:--
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A. The failure of
Party A to perform its obligations as Calculation Agent shall not be construed
as an Event of Default or Termination Event.
(f) Credit Support Document. Details of any Credit Support Document:-
In the case of Party A, a guarantee of Party A's obligations hereunder
substantially in the form of Exhibit D attached to this Schedule.
In the case of Party B, not applicable.
(g) Credit Support Provider.
C-10
Credit Support Provider means in relation to Party A: LBHI.
Credit Support Provider means in relation to Party B: Not Applicable.
(h) Limitation on Trustee Liability. In the absence of negligence,
willful misconduct or bad faith on the part of the Trustee, the Trustee shall
have no personal liability for the payment of any indebtedness or expenses of
Party B or be personally liable for the breach or any failure of any
obligation, representation, warranty or covenant made or undertaken by Party B
under this Transaction or the Trust Agreement within the scope of the
Trustee's discharge of its duties under this Transaction or the Trust
Agreement or for any amounts due under this Transaction from Party B, such
amounts to be paid solely from the assets of Party B in accordance with the
Trust Agreement.
(i) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law doctrine).
(j) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-"; and (ii) deleting the
final paragraph thereof.
(k) Netting of Payments. Section 2(c)(ii) will apply to all Transactions.
(l) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
Section 23. Other Provisions.
(a) Confirmation. Each Confirmation supplements, forms part of, and will
be read and construed as one with the Agreement. A form of Confirmation is set
forth as Exhibit A hereto.
(b) Early Termination. Notwithstanding any other provision of this
Agreement, in the event of the occurrence of an Event of Default with respect
to Party A, the Depositor shall make the determination to designate an Early
Termination Date in connection with the termination of this Agreement on
behalf of Party B. In addition, the Early Termination Date so designated shall
be at least five Business Days following the date on which Party B receives
such direction from the Depositor.
(c) No Bankruptcy Petition. Prior to the date that is one year and one
day (or the applicable preference period) after the date upon which the trust
created under the Trust Agreement is terminated in accordance with the terms
thereof, Party A shall not institute against, or join any other person in
instituting against, the trust created thereby, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law.
(d) Transfer. Section 7 is hereby amended by: (i) adding the words
"(which consent may not be unreasonably withheld)" after the word "consent" in
the second line thereof, (ii) adding the words "(and notice of the transferee
to)" after the word "of" in the third line thereof, (iii) adding the words
"and the consent of holders of 100% of the then outstanding Certificates, and
each Rating Agency shall have given its prior written confirmation that such
transfer will not result in a reduction or withdrawal of the then current
rating of the Certificates" after the word
C-11
"party" in the third line thereof and (iv) adding the words "(subject to
providing written notice of the transferee to the other party)" after the word
"transfer" in the fourth and seventh line thereof. Party B shall not consent
to any transfer or assignment by Party A of its rights and obligations
hereunder unless holders of 100% of the outstanding Certificates have
consented to such assignment or transfer.
(e) Intention to Enter into a "Swap Agreement". Each of Party A and Party
B hereby acknowledges and agrees that this Agreement and all Additional Direct
Agreements and each Transaction hereunder or thereunder is intended to be a
"swap agreement" as that term is defined in the U.S. Bankruptcy Code (as
amended from time to time) and that the rights granted to each party under
Section 6 include a contractual right to terminate a "swap agreement" and to
offset and net out termination values and payments in conjunction therewith.
(f) Waiver of Right to Trial by Jury. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable law, any right it may
have to a trial by jury in respect of any suit, action or proceeding relating
to this Agreement or any Credit Support Document. Each party (i) certifies
that no representative, agent or attorney of the other party or any Credit
Support Provider has represented, expressly or otherwise, that such other
party would not, in the event of such a suit, action or proceeding, seek to
enforce the foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into this Agreement and provide for any Credit
Support Document, as applicable, by, among other things, the mutual waivers
and certifications in this section.
(g) Accuracy of Specified Information. Section 3(d) is hereby amended by
adding in the third line thereof after the word "respect" and before the
period the words "or, in the case of audited or unaudited financial
statements, a fair presentation, in all material respects, of the financial
condition of the relevant person."
(h) Additional Representations. For purposes of Section 3 of this
Agreement, the following shall be added, immediately following paragraph (f)
thereof:
(g) No Agency. It is entering into this Agreement and each Transaction
as principal (and not as agent or in any other capacity, fiduciary
or otherwise); provided, that the Trustee is acting not in its
individual capacity but solely as Trustee for Party B.
(h) Eligible Contract Participant. It is an "eligible contract
participant" as that term is defined in the Commodity Exchange Act,
as amended.
(i) Non-Reliance. Party A is acting for its own account, and it has made
its own independent decisions to enter into that Transaction and as
to whether that Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such advisers as it has
deemed necessary. Party B is entering into the Transaction pursuant
to the terms of the Trust Agreement. Neither party is relying on any
communication (written or oral) of the other party as investment
advice or as a recommendation to enter into that Transaction; it
being understood that information and explanations related to the
terms and conditions of a
C-12
Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. No communication
(written or oral) received from the other party shall be deemed to
be an assurance or guarantee as to the expected results of that
Transaction.
Assessment and Understanding. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
Status of Parties. The other party is not acting as a fiduciary for
or an adviser to it in respect of that Transaction.
(i) No Setoff to Party A Affiliates. Party B agrees that all payments
required to be made by it under this Agreement shall be made without setoff or
counterclaim for, and that it shall not withhold payment or delivery under
this Agreement in respect of, any default by any Affiliate of Party A under
any Other Agreement or any amount relating to any Other Agreement between
Party B and such Affiliate of Party A or between an Affiliate of Party B and
such Affiliate of Party A. As used herein, "Other Agreement" means any
agreement, including, but not limited to, (i) any transaction (including an
agreement with respect thereto) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction,
currency option or any other similar transaction (including any option with
respect to any of these transactions), (ii) any liability, claim or obligation
(whether present or future, contingent or otherwise), or (iii) any combination
of one or more of the transactions described above. This paragraph (l) shall
supersede any setoff right contained in any Other Agreement or any agreement
relating to any Other Agreement between Party B and any such Affiliate of
Party A or between an Affiliate of Party B and such Affiliate of Party A.
(j) Notices. For the purposes of subsections (iii) and (v) of Section
12(a), the date of receipt shall be presumed to be the date sent if sent on a
Local Business Day or, if not sent on a Local Business Day, the date of
receipt shall be presumed to be the first Local Business Day following the
date sent.
(k) Service of Process. The penultimate sentence of Section 13(c) shall
be amended by adding the following language at the end thereof: "if permitted
in the jurisdiction where the proceedings are initiated and in the
jurisdiction where service is to be made."
(l) Additional Definitions.
"Certificates" shall mean Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series 2004-3 Trust Certificates, due
March 1, 2027, issued pursuant to the Trust Agreement.
"Optional Exchange" shall have the meaning specified therefor in the
Trust Agreement.
C-13
"Trust Agreement" shall mean, collectively, the Series Supplement (the
"Series Supplement"), dated as of February 11, 2004, which supplements
and amends the Standard Terms for Trust Agreements ("Standard Terms"),
dated as of January 16, 2001, each between Xxxxxx ABS Corporation, as
depositor, and U.S. Bank Trust National Association, as trustee, as the
same may be amended or supplemented from time to time as provided
therein.
"Trustee" shall mean U.S. Bank Trust National Association, as Trustee of
Party B, and any additional or successor trustee of Party B.
"Underlying Securities" shall have the meaning specified therefor in the
Trust Agreement.
"Underlying Securities Bankruptcy Default" shall mean the occurrence of
any event of bankruptcy, insolvency or reorganization that would be an
event of default under the Underlying Securities Indenture.
"Underlying Securities Payment Default" shall mean the failure by the
Underlying Securities Issuer to pay interest or principal with respect to
the Underlying Securities within any applicable grace period after the
same shall become due.
Terms used herein and not otherwise defined shall have the meaning
ascribed to them in the Trust Agreement.
C-14
The parties executing this Schedule have executed the Master
Agreement and have agreed as to the contents of this Schedule.
XXXXXX BROTHERS SPECIAL FINANCING INC.
By:
----------------------------------
Name:
Title:
CORPORATE-BACKED TRUST CERTIFICATES,
DAIMLERCHRYSLER DEBENTURE-BACKED
SERIES 2004-3 TRUST
By: U.S. Bank Trust National Association,
not in its individual capacity but
solely as Trustee under the Trust
Agreement
By:
----------------------------------
Name:
Title:
C-15
EXHIBIT A TO SCHEDULE
FORM OF CONFIRMATION
Confirmation
------------
DATE: February 11, 2004
TO: Corporate-Backed Trust Certificates, DaimlerChrysler Debenture-Backed
Series 2004-3 Trust
FROM: Xxxxxx Brothers Special Financing Inc.
SUBJECT: INTEREST RATE SWAP TRANSACTION
To U.S. Bank Trust National Association, as Trustee:
The purpose of this communication is to set forth the terms and
conditions of the transaction entered into on the Trade Date referred to below
(the "Transaction"), between Xxxxxx Brothers Special Financing Inc. ("Party
A") and Corporate-Backed Trust Certificates, DaimlerChrysler Debenture-Backed
Series 2004-3 Trust ("Party B"), a trust created under the laws of the State
of New York pursuant to that certain Series Trust Agreement (the "Series
Supplement"), dated February 11, 2004, which incorporates the Standard Terms
for Trust Agreements (collectively, the "Trust Agreement"). This communication
constitutes a "Confirmation" as referred to in the Master Agreement specified
below.
1. This Confirmation supplements, forms a part of and is subject to
the 1992 ISDA Master Agreement (Multicurrency - Cross Border), (the "Master
Agreement") (including the Schedule thereto), dated as of February 11, 2004,
between Party A and Party B. All provisions contained in, or incorporated by
reference to, such Master Agreement shall govern this Confirmation except as
expressly modified below.
2. This communication incorporates the definitions and provisions
contained in the 2000 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc.) (the "Definitions"). In addition,
certain capitalized terms used herein but not defined herein shall have the
meaning ascribed to them in the Trust Agreement. In the event of any
inconsistency between this Confirmation and the Definitions or Master
Agreement, this Confirmation shall prevail.
3. The terms of the particular Transaction to which this
communication relates are as follows:
Party A: Xxxxxx Brothers Special Financing Inc.
C-16
Party B: Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series
2004-3 Trust
Trade Date: January 29, 2004
Effective Date: February 11, 2004
Scheduled Termination Date: March 1, 2027, subject to adjustment in
accordance with the Modified Following
Business Day Convention.
Calculation Agent: Party A
Business Days: Any day (which is neither a Saturday
nor a Sunday) nor a day on which banks
in New York City and the place of
payment in respect of the Underlying
Securities are authorized or required
to be closed, subject to the Modified
Following Business Day Convention.
The "Modified Following Business Day
Convention" shall apply if the
specified day is not a Business Day and
shall mean the first following day that
is a Business Day unless that day falls
in the next calendar month, in which
case that date will be first preceding
day that is a Business Day.
Notional Amount: $25,000,000, subject to reduction as a
result of an early termination of all
or a portion of the Transaction. The
Notional Amount shall at all times
equal the outstanding principal amount
of the Certificates. See "Early
Termination Payment" below.
Party A Floating Rate Payer Payment
Amounts:
Party A Payment Dates: The 1st day of each March and September
during the term of this Transaction,
commencing in March 2004 and ending on
March 1, 2027, subject to adjustments
in accordance with the Modified
Following Business Day Convention.
Party A Floating Rate for the
Initial Calculation Period: 4.63%
Party A Floating Rate Option: USD-ISDA-Swap Rate (Reuters Screen
ISDAFIX1)
Designated Maturity: Ten Years
C-17
Party A Day Count Fraction: 30/360
Reset Dates: The first day of each Calculation Period.
Other: Party A will have no obligation to make
a Party A Floating Rate Payment Amount
unless and until Party B has made the
related payment, if any, to Party A.
Party B Fixed Rate Payment Amounts:
Party B Fixed Rate Payment
Amounts: Any amounts received by Party B in
respect of interest on the Underlying
Securities, excluding any amount of
interest that accrued with respect to
the Underlying Securities from the
Underlying Securities Payment Date next
preceding the Effective Date to, but
excluding, the Effective Date.
Party B Payment Dates: Any date on which distributions are
received by Party B in respect of
interest on the Underlying Securities,
commencing in March 2004.
Underlying Securities: Issuer: Chrysler Corporation,
predecessor to
DaimlerChrysler
Corporation
Maturity Date: March 1, 2027
Coupon: 7.45%
Day Count: 30/360
Payment Dates: The 1st day of each
March and September
(subject to applicable
grace periods)
commencing in March
2004 and ending on the
Final Scheduled
Distribution Date
Other: In the event of a discrepancy between
the Party B Fixed Rate Payment Amounts
due in respect of any Calculation
Period and the interest amount payable
on the Underlying Securities for the
related period (as calculated in
accordance with the terms of the
Underlying Securities), the terms of
the Underlying Securities shall govern
the calculation of the Party B Fixed
Rate Payment Amount for such
Calculation Period; provided, however,
that the Party B Fixed Rate Payment
Amount shall not include any amount of
interest that accrued with respect to
the Underlying Securities from the
Underlying Securities Payment Date next
preceding the Effective Date to, but
excluding, the Effective Date.
Early Termination Payment: Section 6(e) of the Master Agreement is
hereby deleted, other than with respect
to Section 6(e)(iii) and 6(e)(iv), and
replaced with the following:
C-18
(e) Payments on Early Termination.
(i) If notice is given designating an
Early Termination Date in respect of
the entire or a portion of the Notional
Amount in connection with the exercise
of an Optional Exchange pursuant to
Section 7 of the Series Supplement, a
termination payment shall be due under
Section 6(e) of the Master Agreement;
provided, however, that pursuant to
Section 7 of the Series Supplement in
the event a termination payment shall
be payable by Party B to Party A in
connection with an Early Termination,
in whole or in part, as a result of
such Optional Exchange, the Person
consummating the Optional Exchange must
remit an amount equal to such
termination payment, to Party B for
payment to Party A. If any termination
payment shall be payable by Party A,
Party B will remit such payment to the
Person consummating the Optional
Exchange.
(ii) No Early Termination Payment shall
be payable by either Party A or Party B
following an Event of Default or
Termination Event unless the Early
Termination Date is designated due to
an Optional Exchange.
(iii) If an Early Termination Date is
designated due to an Optional Exchange
in respect of the entire Notional
Amount of the Transaction or a portion
of the Notional Amount of the
Transaction, Market Quotation and
Second Method shall be used to
calculate any termination payments
owing by either party under Section
6(e) of the Master Agreement.
Amendment: Section 9(b) of the Master Agreement is
hereby deleted and replaced with the
following:
This Agreement may not be amended without the prior written consent of
Party A, and the holders of 66 2/3% of the then outstanding Certificates and
holders of 100% of the Call Warrants, and without prior written confirmation
from each Rating Agency that such amendment will not result in a reduction or
withdrawal of the then current rating of the Certificates; provided, however,
that Party A and Party B may amend the Swap Agreement without the prior
written consent of the holders of the then outstanding Certificates or the
holders of the Call Warrants to cure any ambiguity in, or to correct or
supplement any provision of the Agreement
C-19
which may be inconsistent with any other provision of the Agreement, or to
otherwise cure any defect in the Agreement, provided that any such amendment
does not materially adversely affect the interest of the certificateholders or
the holders of the Call Warrants and that each Rating Agency will have given
its prior written confirmation that such amendment will not result in a
reduction or withdrawal of the then current rating of the Certificates;
provided further, however, that notwithstanding anything to the contrary, no
amendment may alter the timing or amount of any payment hereunder without the
prior consent of the holders of 100% of the then outstanding Certificates and
holders of 100% of the Call Warrants, and without giving each Rating Agency
prior written notice of any such amendment. Notwithstanding anything contained
herein to the contrary, in connection with any sale of additional Underlying
Securities to the Trust pursuant to Section 3(d) of the Series Supplement, the
parties hereto shall enter into a Supplement to this Confirmation whereby the
Notional Amount shall be increased by an amount equal to the principal amount
of the additional Underlying Securities sold to the Trust.
4. Other Terms
(a) Interpretation. Each reference to the singular shall include the plural
and vice versa.
(b) Limitation on Trustee Liability. In the absence of negligence, willful
misconduct or bad faith on the part of the Trustee, the Trustee shall have no
personal liability for the payment of any indebtedness or expenses of Party B
or be personally liable for the breach or any failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under this
Transaction or the Trust Agreement within the scope of the Trustee's discharge
of its duties under this Transaction or the Trust Agreement or for any amounts
due under this Transaction from Party B, such amounts to be paid solely from
the assets of Party B in accordance with the Trust Agreement.
5. Account Details
Payments to Party A
Account for payments: JPMorgan Chase Bank
ABA # 000000000
A/C # 066143543
For the account of: Xxxxxx Brothers
Special Financing Inc.
Payments to Party B
Account for payments: U.S. Bank National Association,
Minneapolis, MN
ABA# 000 000 000
For Credit to A/C 1801 2116 7365
FBO: U.S. Bank Trust N.A.
For further Credit to A/C 4730017 OBI
= CBTC
2004-3 DAIMLERCHRYSLER A/C, 784543000
C-20
C-21
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed for that
purpose and returning it to us.
Yours sincerely,
XXXXXX BROTHERS SPECIAL FINANCING INC.
By:
--------------------------------------
Name:
Title:
Confirmed as of the date first written:
CORPORATE-BACKED TRUST CERTIFICATES, DAIMLERCHRYSLER DEBENTURE-BACKED SERIES
2004-3 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Trustee under the Trust Agreement
By:
----------------------------------
Name:
Title:
C-22
EXHIBIT B TO SCHEDULE
FORM OF OPINION OF COUNSEL FOR PARTY A
C-23
XXXXXX XXXXXX XXXXX & XXXX LLP
BEIJING 000 XXXXXXX XXXXXX XXX XXXXXXX
---- XXX XXXX, NEW YORK 10019 ----
BRUSSELS TELEPHONE 000 000 0000 NEW YORK
---- FACSIMILE 212 839 5599 ----
CHICAGO xxx.xxxxxx.xxx SAN FRANCISCO
---- ----
DALLAS FOUNDED 1866 SHANGHAI
---- ----
GENEVA SINGAPORE
---- ----
HONG KONG TOKYO
---- ----
LONDON WASHINGTON, D.C.
February 11, 2004
To the Persons listed on
Schedule A hereto
Re: Xxxxxx ABS Corporation
Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series 2004-3
----------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel in connection with (i) the transfer of
$25,000,000 aggregate principal amount of 7.45% Debentures due 2027 (the
"Underlying Securities") of Chrysler Corporation, predecessor to
DaimlerChrysler Corporation, by Xxxxxx ABS Corporation ("LABS") to the
Corporate-Backed Trust Certificates, DaimlerChrysler Debenture-Backed Series
2004-3 Trust (the "Trust") established by LABS and (ii) the issuance by the
Trust on February 11, 2004 (the "Closing Date") of the Corporate-Backed Trust
Certificates DaimlerChrysler Debenture-Backed Series 2004-3 (the
"Certificates"), issued pursuant to a standard terms for trust agreements,
dated as of January 16, 2001 (the "Standard Terms"), between LABS and U.S.
Bank Trust National Association ("U.S. Bank"), as trustee (the "Trustee"), as
supplemented by a series supplement thereto, dated as of February 11, 2004
(the "Series Supplement" and, together with the Standard Terms, the "Trust
Agreement"), between LABS and the Trustee. Capitalized terms defined in the
Trust Agreement and used but not otherwise defined herein are used herein as
so defined.
In connection with this opinion, we have examined and are familiar with
originals or copies certified or otherwise identified to our satisfaction of:
(i) the Trust Agreement; (ii) a securities account control agreement dated as
of February 11, 2004 between LABS and U.S. Bank, as trustee and securities
intermediary; (iii) the form of the Certificates; (iv) an ISDA Master
Agreement, dated as of February 11, 2004 (the "ISDA Master Agreement"),
between the Trust and Xxxxxx Brothers Special Financing Inc. (the "Swap
Counterparty"), dated as of February 11, 2004, a schedule thereto dated
February 11, 2004 (the "Schedule"), between the
C-24
Trust and the Swap Counterparty and a confirmation thereunder dated February
11, 2004 (the "Confirmation" and, together with the ISDA Master Agreement and
the Schedule, the "Swap Agreement"); (v) an underwriting agreement dated
January 29, 2004 between LABS and Xxxxxx, as underwriter; and (vi) such
corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of LABS, and have made such inquiries of such officers and
representatives, as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
As to all questions of fact material to this opinion that have not been
independently established, we have relied upon certificates or comparable
documents of officers and representatives of LABS, the Swap Counterparty and
the Trustee and upon the representations and warranties of the Swap
Counterparty and the Trust contained in the Swap Agreement. We have also
assumed (i) the due organization and valid existence of the Swap Counterparty
and the Trustee, (ii) that the Swap Counterparty and the Trustee have all
requisite corporate power and authority to execute and deliver the Swap
Agreement and to perform their obligations thereunder, (iii) the due and valid
authorization by all necessary corporate action of the Swap Counterparty and
the Trustee of the execution, delivery and performance by them of the Swap
Agreement, (iv) the due and valid execution and delivery by the Swap
Counterparty and the Trustee of the Swap Agreement, (v) that the Swap
Agreement constitutes the legal, valid and binding obligation of the Swap
Counterparty and the Trust, enforceable against the Swap Counterparty and the
Trust in accordance with its terms and (vi) the absence of any agreement or
understanding among the parties other than those contained in the Swap
Agreement or otherwise called to our attention.
Based on the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. The execution and delivery by the Swap Counterparty of the Swap Agreement
and the performance by Swap Counterparty of its obligations thereunder
will not conflict with, constitute a default under, or violate any New
York, Delaware corporate or federal law or regulation (other than federal
and state securities or blue sky laws, as to which we express no opinion
in this paragraph).
2. The Swap Agreement is not subject to regulation under the Commodity
Exchange Act, as amended, or the rules and regulations thereunder.
* * * *
We are members of the bar of the State of New York, and we do not express
any opinion as to any laws other than the law of the State of New York, the
General Corporation Law of the State of Delaware and the federal laws of the
United States.
C-25
This opinion letter is not intended to be employed in any transaction
other than the one described above and is being delivered to you on the
understanding that neither it nor its contents may be published, communicated
or otherwise made available, in whole or in part, to any other party or
entity, without in each instance, our specific prior written consent.
Very truly yours,
C-26
Schedule A
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Special Financing Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
C-27
EXHIBIT B TO SCHEDULE
FORM OF OPINION OF COUNSEL FOR PARTY A
C-28
EXHIBIT C TO SCHEDULE
FORM OF OPINION OF COUNSEL FOR PARTY B
C-29
EXHIBIT D TO SCHEDULE
FORM OF GUARANTEE
C-30
Confirmation
DATE: February 11, 2004
TO: Corporate-Backed Trust Certificates, DaimlerChrysler Debenture-Backed
Series 2004-3 Trust
FROM: Xxxxxx Brothers Special Financing Inc.
SUBJECT: INTEREST RATE SWAP TRANSACTION
To U.S. Bank Trust National Association, as Trustee:
The purpose of this communication is to set forth the terms and
conditions of the transaction entered into on the Trade Date referred to below
(the "Transaction"), between Xxxxxx Brothers Special Financing Inc. ("Party
A") and Corporate-Backed Trust Certificates, DaimlerChrysler Debenture-Backed
Series 2004-3 Trust ("Party B"), a trust created under the laws of the State
of New York pursuant to that certain Series Trust Agreement (the "Series
Supplement"), dated February 11, 2004, which incorporates the Standard Terms
for Trust Agreements (collectively, the "Trust Agreement"). This communication
constitutes a "Confirmation" as referred to in the Master Agreement specified
below.
1. This Confirmation supplements, forms a part of and is subject to
the 1992 ISDA Master Agreement (Multicurrency - Cross Border), (the "Master
Agreement") (including the Schedule thereto), dated as of February 11, 2004,
between Party A and Party B. All provisions contained in, or incorporated by
reference to, such Master Agreement shall govern this Confirmation except as
expressly modified below.
2. This communication incorporates the definitions and provisions
contained in the 2000 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc.) (the "Definitions"). In addition,
certain capitalized terms used herein but not defined herein shall have the
meaning ascribed to them in the Trust Agreement. In the event of any
inconsistency between this Confirmation and the Definitions or Master
Agreement, this Confirmation shall prevail.
3. The terms of the particular Transaction to which this
communication relates are as follows:
Party A: Xxxxxx Brothers Special Financing Inc.
Party B: Corporate-Backed Trust Certificates,
DaimlerChrysler Debenture-Backed Series
2004-3 Trust
Trade Date: January 29, 2004
C-31
Effective Date: February 11, 2004
Scheduled Termination Date: March 1, 2027, subject to adjustment in
accordance with the Modified Following
Business Day Convention.
Calculation Agent: Party A
Business Days: Any day (which is neither a Saturday
nor a Sunday) nor a day on which banks
in New York City and the place of
payment in respect of the Underlying
Securities are authorized or required
to be closed, subject to the Modified
Following Business Day Convention.
The "Modified Following Business Day
Convention" shall apply if the
specified day is not a Business Day and
shall mean the first following day that
is a Business Day unless that day falls
in the next calendar month, in which
case that date will be first preceding
day that is a Business Day.
Notional Amount: $25,000,000, subject to reduction as a
result of an early termination of all
or a portion of the Transaction. The
Notional Amount shall at all times
equal the outstanding principal amount
of the Certificates. See "Early
Termination Payment" below.
Party A Floating Rate Payer Payment
Amounts:
Party A Payment Dates: The 1st day of each March and September
during the term of this Transaction,
commencing in March 2004 and ending on
March 1, 2027, subject to adjustments
in accordance with the Modified
Following Business Day Convention.
Party A Floating Rate for the
Initial Calculation Period: 4.63%
Party A Floating Rate Option: USD-ISDA-Swap Rate (Reuters Screen
ISDAFIX1)
Designated Maturity: Ten Years
Party A Day Count Fraction: 30/360
C-32
Reset Dates: The first day of each Calculation Period.
Other: Party A will have no obligation to make
a Party A Floating Rate Payment Amount
unless and until Party B has made the
related payment, if any, to Party A.
Party B Fixed Rate Payment Amounts:
Party B Fixed Rate Payment
Amounts: Any amounts received by Party B in
respect of interest on the Underlying
Securities, excluding any amount of
interest that accrued with respect to
the Underlying Securities from the
Underlying Securities Payment Date next
preceding the Effective Date to, but
excluding, the Effective Date.
Party B Payment Dates: Any date on which distributions are
received by Party B in respect of
interest on the Underlying Securities,
commencing in March 2004.
Underlying Securities: Issuer: Chrysler Corporation,
predecessor to
DaimlerChrysler
Corporation
Maturity Date: March 1, 2027
Coupon: 7.45%
Day Count: 30/360
Payment Dates: The 1st day of each
March and September
(subject to applicable
grace periods)
commencing in March
2004 and ending on the
Final Scheduled
Distribution Date
Other: In the event of a discrepancy between
the Party B Fixed Rate Payment Amounts
due in respect of any Calculation
Period and the interest amount payable
on the Underlying Securities for the
related period (as calculated in
accordance with the terms of the
Underlying Securities), the terms of
the Underlying Securities shall govern
the calculation of the Party B Fixed
Rate Payment Amount for such
Calculation Period; provided, however,
that the Party B Fixed
C-33
Rate Payment Amount shall not include
any amount of interest that accrued
with respect to the Underlying
Securities from the Underlying
Securities Payment Date next preceding
the Effective Date to, but excluding,
the Effective Date.
Early Termination Payment: Section 6(e) of the Master Agreement is
hereby deleted, other than with respect
to Section 6(e)(iii) and 6(e)(iv), and
replaced with the following:
(e) Payments on Early Termination.
(i) If notice is given designating an
Early Termination Date in respect of
the entire or a portion of the Notional
Amount in connection with the exercise
of an Optional Exchange pursuant to
Section 7 of the Series Supplement, a
termination payment shall be due under
Section 6(e) of the Master Agreement;
provided, however, that pursuant to
Section 7 of the Series Supplement in
the event a termination payment shall
be payable by Party B to Party A in
connection with an Early Termination,
in whole or in part, as a result of
such Optional Exchange, the Person
consummating the Optional Exchange must
remit an amount equal to such
termination payment, to Party B for
payment to Party A. If any termination
payment shall be payable by Party A,
Party B will remit such payment to the
Person consummating the Optional
Exchange.
(ii) No Early Termination Payment shall
be payable by either Party A or Party B
following an Event of Default or
Termination Event unless the Early
Termination Date is designated due to
an Optional Exchange.
(iii) If an Early Termination Date is
designated due to an Optional Exchange
in respect of the entire Notional
Amount of the Transaction or a portion
of the Notional Amount of the
Transaction, Market Quotation and
Second Method shall be used to
calculate any termination payments
owing by either party under Section
6(e) of the Master Agreement.
C-34
Amendment: Section 9(b) of the Master Agreement is
hereby deleted and replaced with the
following:
This Agreement may not be amended without the prior written consent of
Party A, and the holders of 66 2/3% of the then outstanding Certificates and
holders of 100% of the Call Warrants, and without prior written confirmation
from each Rating Agency that such amendment will not result in a reduction or
withdrawal of the then current rating of the Certificates; provided, however,
that Party A and Party B may amend the Swap Agreement without the prior
written consent of the holders of the then outstanding Certificates or the
holders of the Call Warrants to cure any ambiguity in, or to correct or
supplement any provision of the Agreement which may be inconsistent with any
other provision of the Agreement, or to otherwise cure any defect in the
Agreement, provided that any such amendment does not materially adversely
affect the interest of the certificateholders or the holders of the Call
Warrants and that each Rating Agency will have given its prior written
confirmation that such amendment will not result in a reduction or withdrawal
of the then current rating of the Certificates; provided further, however,
that notwithstanding anything to the contrary, no amendment may alter the
timing or amount of any payment hereunder without the prior consent of the
holders of 100% of the then outstanding Certificates and holders of 100% of
the Call Warrants, and without giving each Rating Agency prior written notice
of any such amendment. Notwithstanding anything contained herein to the
contrary, in connection with any sale of additional Underlying Securities to
the Trust pursuant to Section 3(d) of the Series Supplement, the parties
hereto shall enter into a Supplement to this Confirmation whereby the Notional
Amount shall be increased by an amount equal to the principal amount of the
additional Underlying Securities sold to the Trust.
4. Other Terms
(a) Interpretation. Each reference to the singular shall include the plural
and vice versa.
(b) Limitation on Trustee Liability. In the absence of negligence, willful
misconduct or bad faith on the part of the Trustee, the Trustee shall have no
personal liability for the payment of any indebtedness or expenses of Party B
or be personally liable for the breach or any failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under this
Transaction or the Trust Agreement within the scope of the Trustee's discharge
of its duties under this Transaction or the Trust Agreement or for any amounts
due under this Transaction from Party B, such amounts to be paid solely from
the assets of Party B in accordance with the Trust Agreement.
5. Account Details
Payments to Party A
Account for payments: JPMorgan Chase Bank
ABA # 000000000
A/C # 066143543
For the account of: Xxxxxx Brothers
Special Financing Inc.
C-35
Payments to Party B
Account for payments: U.S.
Bank National Association, Minneapolis,
MN
ABA# 000 000 000
For Credit to A/C 1801 2116 7365
FBO: U.S. Bank Trust N.A.
For further Credit to A/C 4730017 OBI =
CBTC 2004-3
DAIMLERCHRYSLER A/C, 784543000
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed for that
purpose and returning it to us.
Yours sincerely,
XXXXXX BROTHERS SPECIAL FINANCING INC.
By:
-------------------------------------
Name:
Title:
Confirmed as of the date first written:
CORPORATE-BACKED TRUST CERTIFICATES, DAIMLERCHRYSLER DEBENTURE-BACKED SERIES
2004-3 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Trustee under the Trust Agreement
By:
--------------------
Name:
Title:
C-36
