SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
SERIES 2001-16 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of May 1, 2001
(GEORGIA-PACIFIC CORPORATION)
TABLE OF CONTENTS
Page
Section 1 Incorporation of Standard Terms...............................1
Section 2. Definitions...................................................1
Section 3. Designation of Trust and Certificates.........................7
Section 4. Trust Certificates............................................8
Section 5. Distributions.................................................8
Section 6. Trustee's Fees...............................................10
Section 7. Optional Exchange; Optional Call.............................10
Section 8. Events of Default............................................13
Section 9. Miscellaneous................................................13
Section 10. Governing Law................................................15
Section 11. Counterparts.................................................15
Section 12. Termination of the Trust.....................................16
Section 13. Sale of Underlying Securities................................16
Section 14. Amendments...................................................16
Section 15. Voting of Underlying Securities, Modification of Indenture...16
SCHEDULE I SERIES 2001-16 UNDERLYING SECURITIES SCHEDULE
SCHEDULE II CLASS A-2 CERTIFICATE CALL SCHEDULE
EXHIBIT A-1 FORM OF TRUST CERTIFICATE CLASS A-1
EXHIBIT A-2 FORM OF TRUST CERTIFICATE CLASS A-2
EXHIBIT B-1 FORM OF CLASS A-1 CALL WARRANT
EXHIBIT B-2 FORM OF CLASS A-2 CALL WARRANT
EXHIBIT C FORM OF INVESTMENT LETTER
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SCHEDULE II (continued)
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
Series 2001-16 TRUST
SERIES SUPPLEMENT, Series 2001-16, dated as of May 1, 2001 (the "Series
Supplement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated herein
(the "Trust") by executing and delivering this Series Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
January 16, 2001 (the "Standard Terms"; together with this Series Supplement,
the "Trust Agreement"), by and between the Depositor and the Trustee, as
modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit the Underlying Securities set
forth on Schedule I attached hereto (the "Underlying Securities Schedule") into
the Trust;
WHEREAS, in connection with the creation of the Trust and the deposit
therein of the Underlying Securities, it is desired to provide for the issuance
of trust certificates (the "Certificates") evidencing undivided interests in the
Trust; and
WHEREAS, the Trustee has joined in the execution of the Standard Terms
and this Series Supplement to evidence the acceptance by the Trustee of the
Trust;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee as follows:
Section 1. Incorporation of Standard Terms. Except as otherwise
provided herein, all of the provisions of the Standard Terms are hereby
incorporated herein by reference in their entirety, and this Series Supplement
and the Standard Terms shall form a single agreement between the parties. In the
event of any inconsistency between the provisions of this Series Supplement and
the provisions of the Standard Terms, the provisions of this Series Supplement
will control with respect to the Series 2001-16 Certificates and the
transactions described herein.
Section 2. Definitions. (a) Except as otherwise specified herein or as
the context may otherwise require, the following terms shall have the respective
meanings set forth below for all purposes under this Series Supplement. (Section
2(b) below sets forth terms listed in the Standard Terms which are not
applicable to this Series.) Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Standard Terms.
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"Accreted Principal Amount" for the Class A-2 Certificates
means for each six-month period from and including each date specified in
Schedule II hereof to but excluding the next such date, the amount specified in
Schedule II as the "Ending Balance" for such beginning date.
"Available Funds" shall have the meaning specified in the
Standard Terms, except that investment income earned on funds invested pursuant
to Section 3.05 of the Standard Terms shall be included in Available Funds, as
well as any redemption premium and reinvestment proceeds on amounts paid in
respect of the Underlying Securities.
"Business Day" shall mean any day other than (i) Saturday and
Sunday or (ii) a day on which banking institutions in New York City, New York
are authorized or obligated by law or executive order to be closed for business
or (iii) a day that is not a business day for the purposes of the Indenture.
"Call Date" shall mean any Business Day occurring on or after
May 1, 2006, or after the announcement of any redemption or other unscheduled
payment of the Underlying Securities on which the Call Warrants are exercised
and the proceeds of an Optional Call are distributed to Holders of the
Certificates pursuant to Section 7 hereof.
"Call Price" shall mean, for each related Call Date, (i) in
the case of the Class A-1 Certificates, the principal amount of the Class A-1
Certificates to be purchased by the Warrant Holder on such date, plus any
accrued and unpaid interest on such amount to but excluding the Call Date and
(ii) in the case of the Class A-2 Certificates, the Accreted Principal Amount of
the Class A-2 Certificates to be purchased by the Warrant Holder on such date.
"Call Request" shall have the meaning specified in Section
7(b) hereof.
"Call Warrants" shall mean the rights to purchase in whole or
in part at the Call Price the Certificates, and thereby cause an Optional Call
of the Certificates on any Call Date pursuant to the Optional Call provisions of
Section 7 hereof.
"Certificate Account" shall have the meaning specified in the
Standard Terms.
"Certificates" shall have the meaning specified in Section 3
hereof.
"Class A-1 Certificates" shall mean the Certificates, in the
form attached hereto as Exhibit A-1, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described herein and in
the Certificates.
"Class A-2 Certificates" shall mean the Certificates, in the
form attached hereto as Exhibit A-2, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
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to be made by the Trust and having the characteristics described herein and in
the Certificates.
"Closing Date" shall mean May 1, 2001.
"Collection Period" shall mean, (i) with respect to each
November Distribution Date, the period beginning on the day after the May
Distribution Date and ending on such November Distribution Date, inclusive and,
(ii) with respect to each May Distribution Date, the period beginning on the day
after the November Distribution Date of a given year and ending on the May
Distribution Date of the following year, inclusive; provided, however, that
clauses (i) and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank
Trust National Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
"Depository" shall mean The Depository Trust Company.
"Distribution Date" shall mean May 15 and November 15 of each
year (or if such date is not a Business Day, the next succeeding Business Day),
commencing on May 15, 2001 and ending on the Final Scheduled Distribution Date.
"Eligible Account" shall have the meaning specified in the
Standard Terms.
"Eligible Investments" shall be as defined in the Standard
Terms; provided, however, that (i) the minimum required rating for long-term
instruments will be equal to the rating of the Underlying Securities, and (ii)
the rating of any short-term instruments will be A-1+ by S&P and P1 by Moody's;
and provided, further, that any such investment matures no later than the
Business Day prior to any related Distribution Date and that any such investment
be denominated in U.S. dollars.
"Event of Default" shall mean (i) a default in the payment of
any interest on any Underlying Security after the same becomes due and payable
(subject to any applicable grace period), (ii) a default in the payment of the
principal of or any installment of principal of any Underlying Security when the
same becomes due and payable and (iii) any other event specified as an "Event of
Default" in the Indenture for the Underlying Securities.
"Extraordinary Trust Expenses" shall have the meaning
specified in the Standard Terms.
"Final Scheduled Distribution Date" shall mean November 15,
2029.
"Indenture" shall mean the indenture pursuant to which the
Underlying Securities were issued.
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"Interest Accrual Period" shall mean for any Distribution
Date, the period from and including the preceding Distribution Date (or in the
case of the first Interest Accrual Period, from and including May 1, 2001) to
but excluding the current Distribution Date.
"Liquidation Price" shall mean the price at which the Trustee
sells the Underlying Securities.
"Liquidation Proceeds" shall have the meaning specified in the
Standard Terms.
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Optional Call" shall mean the call of the Certificates by the
Warrant Holder, in whole or in part, resulting from the exercise of Call
Warrants by the Warrant Holder, pursuant to Section 7 hereof.
"Optional Exchange" shall mean the exchange of the
Certificates by the Trust for the Underlying Securities, pursuant to Section 7
hereof.
"Optional Exchange Date" shall mean any Distribution Date on
which Underlying Securities subject to Optional Exchange are distributed to the
Depositor or any of its Affiliates, as a Certificateholder.
"Ordinary Expenses" shall mean the Trustee's ordinary expenses
and overhead in connection with its services as Trustee, including the items
referred to in the definition of Ordinary Expenses in the Standard Terms.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement,
dated April 27, 2001, relating to the Certificates.
"Rating Agency" shall mean Moody's and S&P.
"Rating Agency Condition" shall have the meaning specified in
the Standard Terms.
"Record Date" shall mean, with respect to each Distribution
Date, the day immediately preceding the related Distribution Date.
"Required Interest" shall have the meaning specified in the
Standard Terms.
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"Required Percentage-Amendment" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Direction of Trustee" shall be 66-2/3% of
the aggregate Voting Rights.
"Required Percentage-Remedies" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Removal" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Rating" shall mean, 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 McGraw Hill Companies Inc.
"Series" shall mean Series 2001-16.
"Trustee Fee" shall mean the amount paid to the Trustee by the
Depositor on the Closing Date.
"Trust Property" shall mean the Underlying Securities
described on Schedule I hereto and the Certificate Account.
"Underlying Securities" shall mean $29,033,000 aggregate
principal amount of 7.75% Debentures due 2029 issued by the Underlying
Securities Issuer (as set forth on Schedule I attached hereto) on the Closing
Date and any additional Underlying Securities transferred to the Trust after
the Closing Date.
"Underlying Securities Issuer" shall mean Georgia-Pacific
Corporation.
"Underlying Securities Trustee" shall mean The Bank of New
York.
"Underwriters" shall mean Xxxxxx Brothers Inc., an affiliate
of the Depositor, Prudential Securities Incorporated and Xxxxxx Xxxxxxxxxx Xxxxx
LLC.
"Voting Rights" shall, in the entirety, be allocated among all
Class A-1 Certificateholders and Class A-2 Certificateholders in proportion to
the then unpaid principal amounts of their respective Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust National
Association.
"Warrant Agent Agreement" shall mean that certain Warrant
Agent Agreement, dated as of the date hereof, between the Depositor and U.S.
5
Bank Trust National Association, as Warrant Agent and as Trustee, as the same
may be amended from time to time.
(a) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Calculation Agent"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
"Cut-off Date"
"Eligible Expense"
"Exchange Rate Agent"
"Fixed Pass-Through Rate"
"Floating Pass-Through Rate"
"Guaranteed Investment Contract"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Notional Amount"
"Pass-Through Rate"
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"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Corporate Backed Trust Certificates, Series
2001-16 Trust." The Certificates evidencing certain undivided ownership
interests therein shall be known as "Corporate Backed Trust Certificates, Series
2001-16." The Certificates shall consist of the Class A-1 Certificates and Class
A-2 Certificates (together, the "Certificates"). The Trust is also issuing call
warrants with respect to the Certificates ("Call Warrants").
(a) The Certificates shall be held through the Depository in
book-entry form and shall be substantially in the forms attached hereto as
Exhibits A-1 and A-2. The Class A-1 Certificates shall be issued in
denominations of $25. The Class A-2 Certificates shall be issued in minimum
denominations of $500,000 and in integral multiples of $1000 in excess thereof.
Except as provided in the Standard Terms and in paragraph (c) of this Section,
7
the Trust shall not issue additional Certificates or incur any indebtedness.
(b) The Class A-1 Certificates have an initial aggregate
certificate principal amount ("Certificate Principal Amount") of $25,000,000 and
the Class A-2 Certificates have an initial aggregate Certificate Principal
Amount of $4,033,000. The holders of the Class A-1 Certificates will be entitled
to receive on each Distribution Date the interest, if any, received on the
Underlying Securities to the extent necessary to pay interest at a rate of 9.00%
per annum on the outstanding Certificate Principal Amount of the Class A-1
Certificates. The Class A-2 Certificates shall not bear interest. On May 15,
2001, the Trustee will pay to the Depositor the amount of interest accrued on
the Underlying Securities from November 15, 2000 to but not including the
Closing Date. If the Depositor is not paid such amount on such date, it will
have a claim for such amount. In satisfaction of that claim the Depositor will
receive 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 recovered in respect of the Underlying Securities.
(c) The Depositor may sell to the Trustee additional
Underlying Securities on any date hereafter upon at least 3 Business Days (or
such lesser period as may be agreed by the parties hereto) notice to the Trustee
and upon (i) satisfaction of the Rating Agency Condition and (ii) delivery of an
Opinion of Counsel to the effect that the sale of such additional Underlying
Securities will not materially increase the likelihood that the Trust would fail
to qualify as a grantor trust under the Code. Upon such sale to the Trustee, the
Trustee shall deposit such additional Underlying Securities in the Certificate
Account, and shall authenticate and deliver to the Depositor, on its order,
Class A-1 Certificates and Class A-2 Certificates in the same proportion as the
original Class A-1 Certificates and Class A-2 Certificates bear to the
Underlying Securities. Any such additional Class A-1 Certificates and Class A-2
Certificates authenticated and delivered shall have the same terms and rank pari
passu with the original Class A-1 Certificates and Class A-2 Certificates,
respectively, issued in accordance with this Series Supplement.
(d) As a condition precedent for transferring the Call
Warrants, the prospective transferee shall be required to deliver to the Trustee
and the Depositor, an executed copy of the Investment Letter (set forth as
Exhibit C hereto).
Section 4. Trust Certificates. The Trustee hereby acknowledges receipt,
on or prior to the Closing Date, of:
(i) the Underlying Securities set forth on the Underlying Securities
Schedule; and
(ii) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Standard Terms.
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Section 5. Distributions. (a) On each applicable Distribution Date, the
Trustee shall apply Available Funds in the Certificate Account as follows, in
the following order of priority:
(i) the Trustee will pay the interest portion of Available Funds with
respect to the Underlying Securities:
(a) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee with respect to the
Underlying Securities in accordance with Section 6(b) below and approved by 100%
of the Certificateholders;
(b) second, to the holders of the Class A-1 Certificates,
interest at the rate of 9.00% per annum on the principal amount of the Class A-1
Certificates; and
(c) third, to the Depositor, any remainder.
(ii) the Trustee will pay the principal portion of Available Funds with
respect to the Underlying Securities:
(a) first, to the Trustee, as reimbursement for any remaining
Extraordinary Trust Expenses incurred by the Trustee with respect to the
Underlying Securities in accordance with Section 6(b) below and approved by 100%
of the Certificateholders; and
(b) second, to the holders of the Class A-1 and Class A-2
Certificates, the remaining principal portion of Available Funds pro rata in the
proportion that the outstanding principal amount of the Class A-1 Certificates
bears to the outstanding principal amount of the Class A-2 Certificates.
(b) Notwithstanding any other provision hereof, amounts recovered in
respect of the Underlying Securities prior to the Final Scheduled Distribution
Date following (i) an acceleration of the date of maturity of the Underlying
Securities, (ii) the redemption or other prepayment of the Underlying Securities
by the Underlying Securities Issuer or (iii) the sale of the Underlying
Securities by the Trust, shall be distributed pursuant to the priorities
specified in Section 5(a) hereof. The Certificates shall be subject to a
mandatory redemption on any Distribution Date on which the Underlying Securities
are redeemed by the Underlying Securities Issuer.
(c) Notwithstanding any other provision hereof, in the event of the
occurrence of an Event of Default the Trustee shall proceed against the
Underlying Securities Issuer on behalf of the Certificateholders to enforce the
Underlying Securities or otherwise to protect the interests of the
Certificateholders, provided that, holders of the Certificates representing a
majority of the Voting Rights on the Certificates will be entitled to direct the
Trustee in any such proceeding or direct the Trustee to sell the Underlying
Securities. If the Trustee is directed to sell the Underlying Securities, the
Trustee shall solicit bids for the sale of the Underlying Securities with
settlement thereof on or before the third (3rd) Business Day after such sale
from three leading dealers in the relevant market. Any of the following dealers
9
(or their successors) shall be deemed to qualify as leading dealers: (1) Credit
Suisse First Boston Corporation, (2) Xxxxxxx, Xxxxx & Co., (3) Xxxxxx Brothers
Inc., (4) Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (5) UBS Warburg
LLC and (6) Xxxxxxx Xxxxx Xxxxxx Inc. The Trustee shall not be responsible for
the failure to obtain a bid so long as it has made reasonable efforts to obtain
bids. If a bid for the sale of the Underlying Securities has been accepted by
the Trustee but the sale has failed to settle on the proposed settlement date,
the Trustee shall request new bids from such leading dealers. In the event of
such sale or of an acceleration and a corresponding payment on the Underlying
Securities, the Trustee shall distribute the proceeds to the Certificateholders
no later than two Business Days after the receipt of immediately available funds
in accordance with Section 5(a) hereof.
(d) In the event that 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 Depositary, or for any Certificates which are not then held by DTC
or any other depository, directly to the registered holders of the Certificates
then outstanding and unpaid. Such notice shall state that, not later than 30
days after the receipt of such property, the Trustee will allocate and
distribute such property to the holders of Certificates then outstanding and
unpaid, pro rata by principal amount (after deducting the costs incurred in
connection therewith). Property other than cash will be liquidated by the
Trustee, and the proceeds thereof distributed in cash, only to the extent
necessary to avoid distribution of fractional securities to Certificateholders.
In-kind distribution of such property to Certificateholders will be deemed to
reduce the principal amount of Certificates on a dollar-for-dollar basis.
(e) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any required distributions due to any class of Certificates
on any Distribution Date, any shortfall will be carried over and will be
distributed on the next Distribution Date on which sufficient funds are
available on the Available Funds to pay such shortfall.
(f) If a payment with respect to the Underlying Securities is made to
the Trustee after the Distribution Date on which such payment was scheduled to
be distributed in respect of the Certificates, then the Trustee will distribute
any such amounts received on the next occurring Business Day (a "Special
Distribution Date") as if the funds had constituted Available Funds on the
Distribution Date immediately preceding such Special Distribution Date;
provided, however, that the Record Date for such Special Distribution Date shall
be five Business Days prior to the day on which the related payment was received
from either of the Underlying Securities Trustees.
Section 6. Trustee's Fees. (a) As compensation for its services
hereunder, the Trustee shall be entitled to the Trustee Fee. The Trustee Fee
shall be paid by the Depositor and not from Trust Property. The Trustee shall
bear all Ordinary Expenses. Failure by the Depositor to pay such amount shall
not entitle the Trustee to any payment or reimbursement from the Trust, nor
10
shall such failure release the Trustee from the duties it is required to perform
under the Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust
Property unless all of the Certificateholders then outstanding have voted to
require the Trustee to incur such Extraordinary Expenses. The Trustee may incur
other Extraordinary Expenses if any lesser percentage of the Certificateholders
requesting such action pursuant hereto reimburse the Trustee for the cost
thereof from their own funds in advance. If Extraordinary Expenses are not
approved unanimously as set forth in the first sentence of this Section 6(b),
such Extraordinary Expenses shall not be an obligation of the Trust, and the
Trustee shall not file any claim against the Trust therefor notwithstanding
failure of certificateholders to reimburse the Trustee.
Section 7. Optional Exchange; Optional Call
(a) (i) On each Distribution Date (or, if the Depositor or an
Affiliate of the Depositor holds all of the Certificates and the Call Warrants,
on any other date) the Depositor or any Affiliate of the Depositor, if it is
then the holder of Class A-1 Certificates of a certain principal amount and
Class A-2 Certificates of a principal amount which represent a like percentage
of all Class A-2 Certificates and (except to the extent such Certificates were
acquired through the exercise of Call Warrants) the holder of Call Warrants
related to the Class A-1 Certificates and Call Warrants related to the Class A-2
Certificates which, in each case, represent a like percentage of all such
outstanding Call Warrants may tender such Class A-1 Certificates and Class A-2
Certificates and such Call Warrants to the Trustee on such date and receive a
distribution of Underlying Securities representing a like percentage of the
Underlying Securities to the percentages of the Class A-1 Certificates, Class
A-2 Certificates and the related Call Warrants being tendered by the Depositor
or Affiliate to the Trustee; provided, however, that any right to exchange shall
be exercisable only (x) to the extent that the Depositor provides upon the
Trustee's request an opinion of counsel that such exchange would not affect the
characterization of the Trust as a "grantor trust" for federal income tax
purposes and (y) to the extent permitted under Section 7(a)(iv) hereof.
(ii) Any such Affiliate of the Depositor must provide notice to the
Trustee (an "Exchange Request") no less than 5 days (or such shorter period
acceptable to the Trustee) but not more than 30 days prior to an Optional
Exchange Date that it requests an Optional Exchange of Certificates on such
Optional Exchange Date.
(iii) The Trustee shall not be obligated to determine whether an
Optional Exchange complies with the applicable provisions for exemption under
Rule 3a-7 of the Investment Company Act of 1940, as amended, or the rules or
regulations promulgated thereunder.
(iv) Any such Optional Exchange by any Affiliate of the Depositor, will
be subject to the following restrictions: (a) certification to the Trustee that
any Certificates to be exchanged have been held for a minimum of six months and
(b) each Optional Exchange is limited in amount to a maximum of 5% (except for
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Certificates acquired by the Underwriter but never distributed to investors, in
which case 25%) of the then outstanding principal amount of the Certificates;
provided, however, that such restrictions shall not apply to the exchange of
Certificates that were acquired pursuant to Section 7(b).
(v) The provisions of Section 4.07 of the Standard Terms shall not
apply to an Optional Exchange pursuant to this Section. This Section 7 shall not
provide the Depositor with a lien against, an interest in or a right to specific
performance with respect to the Underlying Securities.
(vi) A Warrant Holder shall exchange Certificates called by it for pro
rata amounts of the Underlying Securities.
(b) (i) Concurrently with the execution of this Series
Supplement, the Trustee, on behalf of the Trust, shall execute the Warrant Agent
Agreement and the Call Warrants, dated as of the date hereof and substantially
in the forms of Exhibit B-1 and Exhibit B-2 hereto, initially evidencing all of
the Call Warrants. The Trustee shall perform the Trust's obligations under the
Warrant Agent Agreement and the Call Warrants in accordance with their
respective terms. On any Call Date, the Certificates may be called at the
applicable Call Price, in whole or in part, by the Warrant Holder, upon payment
of the applicable Call Price on or prior to such Call Date. In the case of a
call in part, the Class A-1 Certificates and Class A-2 Certificates must be
called in the same proportion that each certificate bears to the outstanding
principal amount of the Certificates.
(ii) The Warrant Holder may provide notice to the Trustee (a "Call
Request") no less than 5 Business Days prior to any Call Date, that it is
exercising its Call Warrants with respect to the Certificates on such Call Date.
The Call Request shall be deemed to be notice of an Optional Exchange pursuant
to Section 7(a) hereof of the Certificates to be acquired on the Call Date. Upon
request of the Trustee, the Warrant Holder shall deliver the opinion specified
in Section 7(a)(i)(x) above as a condition to any Optional Call.
(iii) Upon receipt of a Call Request, the Trustee shall provide a
conditional call notice to the Depository not less than 3 Business Days prior to
the applicable Call Date.
(iv) As a condition to any Optional Call, an opinion of counsel to the
Warrant Holder shall be delivered to the Rating Agencies, in form satisfactory
to the Rating Agencies, indicating that payment of the Call Price shall not be
recoverable as a preferential transfer or fraudulent conveyance under the United
States Bankruptcy Code. Such opinion may contain customary assumptions and
qualifications. In addition, the Warrant Holder shall provide a certificate of
solvency to the Trustee.
(v) Deliveries of the Underlying Securities to the Warrant Holder (the
"Purchaser") will only be made against payment by the Purchaser of the Call
Price in immediately available funds. Such payment must occur no later than
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10:00 a.m. New York City time on the Call Date. In the event that the Purchaser
fails to make such payment by such time (a "Purchase Default"), the sale shall
be voided and the Optional Call will be deemed not to be effective with respect
to such Distribution Date, and the Certificates and the Call Warrants shall
continue to remain outstanding. Subject to receipt of the Call Price as
aforesaid, the Trustee shall pay the Call Price to the Certificateholders on the
Call Date in accordance with the definition of "Call Price". The Call Price in
respect of partial calls shall be allocated to the Certificateholders within
each class pro rata to the extent of their entitlements thereto.
(vi) The Trustee shall not consent to any amendment or modification of
this Agreement (including the Standard Terms) which would alter the timing or
amount of any payment of the Call Price without the prior written consent of
100% of the Warrant Holders.
(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.
(viii) 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.
(ix) The Warrant Holder shall initially be the Depositor.
Section 8. Events of Default.
Within 30 days of the occurrence of an Event of Default in respect of
the Certificates, the Trustee will give notice to the Certificateholders,
transmitted by mail, of all such uncured or unwaived Events of Default known to
it. However, except in the case of an Event of Default relating to the payment
of principal, if any, or interest on any of the Underlying Securities, the
Trustee will be protected in withholding such notice if in good faith it
determines that the withholding of such notice is in the interest of the
Certificateholders.
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard
Terms shall not apply to the Series 2001-16 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the
Standard Terms shall not apply to the Series 2001-16 Certificates.
(c) The Trustee shall simultaneously forward reports to
Certificateholders pursuant to Section 4.03 of the Standard Terms and to the New
York Stock Exchange.
13
(d) Except as expressly provided herein, the
Certificateholders shall not be entitled to terminate the Trust or cause the
sale or other disposition of the Underlying Securities.
(e) The provisions of Section 3.07(d) of the Standard Terms
shall not apply to the Series 2001-16 Certificates.
(f) If the Trustee has not received payment with respect to a
Collection Period on the Underlying Securities on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of such
payment. No additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Class A-1 Certificateholders, pro rata
in proportion to their respective entitlements to interest.
(g) The outstanding principal balance of the Certificates
shall not be reduced by the amount of any Realized Losses (as defined in the
Standard Terms).
(h) The Trust may not engage in any business or activities
other than in connection with, or relating to, the holding, protecting and
preserving of the Trust Property and the issuance of the Certificates, and other
than those required or authorized by the Trust Agreement or incidental and
necessary to accomplish such activities. The Trust may not issue or sell any
certificates or other obligations other than the Certificates or otherwise
incur, assume or guarantee any indebtedness for money borrowed.
(i) Notwithstanding anything in the Trust Agreement to the
contrary, the Trustee may be removed upon 60 days prior written notice delivered
by the holders of the Certificates representing the Required Percentage-Removal.
(j) In the event that the Internal Revenue Service challenges
the characterization of the Trust as a grantor trust, the Trustee shall then
file such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application of
Subchapter K of the Code and is hereby empowered to execute such forms on behalf
of the Certificateholders.
(k) Notwithstanding anything in the Standard Terms to the
contrary, the Trustee, upon written direction by the Depositor, will execute the
Certificates.
(l) In relation to Section 7.01(f) of the Standard Terms, any
periodic reports filed by the Trustee pursuant to the Securities and Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder,
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.
14
(n) The Trust will not merge or consolidate with any other
entity without confirmation from each Rating Agency that such merger or
consolidation will not result in the qualification, reduction or withdrawal of
its then-current rating on the Certificates.
(o) Notices. All directions, demands and notices hereunder or
under the Standard Terms shall be in writing and shall be delivered as set forth
below (unless written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxx ABS Corporation
3 World Financial Center
New York, New York 10285
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
15
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS PROVISIONS
THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon
the earliest to occur of (i) the payment in full at maturity or sale by the
Trust after a payment default on or an acceleration or other early payment of
the Underlying Securities and the distribution in full of all amounts due to the
Class A-1 and Class A-2 Certificateholders; (ii) the Final Scheduled
Distribution Date; (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 and (iv) all
of the outstanding Certificates are exchanged for all of the Underlying
Securities in accordance with Section 7(a) hereof.
Section 13. Sale of Underlying Securities. In the event of a sale of
the Underlying Securities pursuant to Section 5(c) hereof, the Liquidation
Proceeds, if any, shall be deposited into the Certificate Account for
distribution to the Certificateholders. The Trustee shall only deliver the
Underlying Securities to the purchaser of such Underlying Securities against
payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust Agreement
to the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall not enter into any amendment or
16
modification of the Trust Agreement which would adversely affect in any material
respect the interests of the holders of any class of Certificates without the
consent of the holders of 100% of such class of Certificates; provided, however,
that no such amendment or modification will be permitted which would alter the
status of the Trust as a grantor trust for federal income tax purposes. Further,
no amendment shall be permitted which would adversely affect in any material
respect the interests of any Class of Certificateholders without confirmation by
each Rating Agency that such amendment will not result in a downgrading or
withdrawal of its rating of such Certificates.
Section 15. Voting of Underlying Securities, Modification of Indenture.
The Trustee, as holder of the Underlying Securities, has the right to vote and
give consents and waivers in respect of the Underlying Securities as permitted
by the Depository and except as otherwise limited by the Trust Agreement. In the
event that the Trustee receives a request from the Depository, the Underlying
Securities Trustee or the Underlying Securities Issuer for its consent to any
amendment, modification or waiver of the Underlying Securities, the Underlying
Securities Indenture or any other document thereunder or relating thereto, or
receives any other solicitation for any action with respect to the Underlying
Securities, the Trustee shall mail a notice of such proposed amendment,
modification, waiver or solicitation to each Certificateholder of record as of
such date. The Trustee shall request instructions from the Certificateholders as
to whether or not to consent to or vote to accept such amendment, modification,
waiver or solicitation. The Trustee shall consent or vote, or refrain from
consenting or voting, in the same proportion (based on the relative outstanding
principal 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, provided, however, that, notwithstanding anything in the Trust
Agreement to the contrary, the Trustee shall at no time vote on or consent to
any matter (i) unless such vote or consent would not (based on an opinion of
counsel) alter the status of the Trust as a grantor trust for federal income tax
purposes or result in the imposition of tax upon the Certificateholders, (ii)
which would alter the timing or amount of any payment on the Underlying
Securities, including, without limitation, any demand to accelerate the
Underlying Securities, except in the event of a default under the Underlying
Securities or an event which with the passage of time would become an event of
default under the Underlying Securities and with the unanimous consent of all
outstanding Class A-1 and Class A-2 Certificateholders, or (iii) which would
result in the exchange or substitution of any of the outstanding Underlying
Securities pursuant to a plan for the refunding or refinancing of such
Underlying Securities except in the event of a default under the Underlying
Securities Indenture and only with the consent of Certificateholders
representing 100% of the Class A-1 Certificates and 100% of the Class A-2
Certificates. The Trustee shall have no liability for any failure to act
resulting from Certificateholders' late return of, or failure to return,
directions requested by the Trustee from the Certificateholders.
17
In the event that an offer is made by the Underlying Securities Issuer
to issue new obligations in exchange and substitution for any of the Underlying
Securities, pursuant to a plan for the refunding or refinancing of the
outstanding Underlying Securities or any other offer is made for the Underlying
Securities, the Trustee shall notify the Class A-1 Certificateholders and Class
A-2 Certificateholders of such offer promptly. The Trustee must reject any such
offer unless the Trustee is directed by the affirmative vote of the holders of
100% of all of the Certificates to accept such offer and the Trustee has
received the tax opinion described above. If pursuant to the preceding Sentence,
the Trustee accepts any such offer, the Trustee shall promptly notify the
Rateing Agencies.
If an event of default under the Indenture occurs and is continuing,
and if directed by a majority of the outstanding Class A-1 Certificateholders
and Class A-2 Certificateholders, the Trustee shall vote the Underlying
Securities in an outstanding principal amount equal to the outstanding
certificate principal amount of the Certificates in favor of directing, or take
such other action as may be appropriate to direct, either of the Underlying
Securities Trustees to declare the unpaid principal amount of the Underlying
Securities and any accrued and unpaid interest thereon to be due and payable.
18
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of the
date first written above.
XXXXXX ABS CORPORATION,
as Depositor
By:
-----------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee on behalf
of the Corporate Backed Trust
Certificates Series, 2001-16
Trust
By:
-----------------------------------------
Name:
Title:
19
SCHEDULE I
SERIES 2001-16
UNDERLYING SECURITIES SCHEDULE
------------------------------
Underlying Securities: 7.75% Debentures due November 15, 2029.
Underlying Securities Issuer: Georgia-Pacific Corporation.
CUSIP Number: 000000XX0.
Principal Amount Deposited: $29,033,000.
Original Issue Date: November 10, 1999.
Maturity Date: November 15, 2029.
Principal Payment Date: November 15, 2029.
Interest Rate: 7.75% per annum.
Interest Payment Dates: May 15th and November 15th.
20
SCHEDULE II
CLASS A-2 CERTIFICATE CALL SCHEDULE
-----------------------------------
Date Call Price
5/15/01 $249,895
11/15/01 $262,390
5/15/02 $275,510
11/15/02 $289,285
5/15/03 $303,749
11/15/03 $318,937
5/15/04 $334,884
11/15/04 $351,628
5/15/05 $369,209
11/15/05 $387,670
5/15/06 $407,053
11/15/06 $427,406
5/15/07 $448,776
11/15/07 $471,215
5/15/08 $494,776
11/15/08 $519,515
5/15/09 $545,490
11/15/09 $572,765
5/15/10 $601,403
11/15/10 $631,473
5/15/11 $663,047
11/15/11 $696,199
5/15/12 $731,009
11/15/12 $767,560
5/15/13 $805,938
11/15/13 $846,235
5/15/14 $888,546
11/15/14 $932,974
5/15/15 $979,622
11/15/15 $1,028,603
5/15/16 $1,080,034
11/15/16 $1,134,035
5/15/17 $1,190,737
11/15/17 $1,250,274
5/15/18 $1,312,788
11/15/18 $1,378,427
5/15/19 $1,447,348
11/15/19 $1,519,716
5/15/20 $1,595,701
21
11/15/20 $1,675,487
5/15/21 $1,759,261
11/15/21 $1,847,224
5/15/22 $1,939,585
11/15/22 $2,036,564
5/15/23 $2,138,393
11/15/23 $2,245,312
5/15/24 $2,357,578
11/15/24 $2,475,457
5/15/25 $2,599,230
11/15/25 $2,729,191
5/15/26 $2,865,651
11/15/26 $3,008,933
5/15/27 $3,159,380
11/15/27 $3,317,349
5/15/28 $3,483,216
11/15/28 $3,657,377
5/15/29 $3,840,246
11/15/29 --
22
EXHIBIT A-1
-----------
Form of Trust Certificate Class A-1
-----------------------------------
NUMBER [__] [1,000,000] $[25] PAR CERTIFICATES
CUSIP NO. [_________]
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED
BENEFICIAL OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION
OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS
ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
XXXXXX ABS CORPORATION
[1,000,000] $[25] PAR
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-16
9.00% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $[___________]
aggregate principal amount of 7.75% Debentures due November 15, 2029, issued by
Georgia-Pacific Corporation (the "Underlying Security Issuer") and all payments
received thereon (the "Trust Property"), deposited in trust by Xxxxxx ABS
Corporation (the "Depositor").
THIS CERTIFIES THAT [______] is the registered owner of
$[________] DOLLARS nonassessable, fully-paid, proportionate undivided
beneficial ownership interest in the Corporate Backed Trust Certificates, Series
2001-16 Trust, formed by the Depositor.
A-1-1
The Trust was created pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Standard Terms"), between the
Depositor and U.S. Bank Trust National Association, a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement, Series 2001-16, dated as
of May 1, 2001 (the "Series Supplement" and, together with the Standard Terms,
the "Trust Agreement"), between the Depositor and the Trustee. This Certificate
does not purport to summarize the Trust Agreement and reference is hereby made
to the Trust Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee with respect hereto. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office. Capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as the "Corporate Backed Trust Certificates, Series 2001-16, Class
A-1" (herein called the "Certificates"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The Trust Property consists
of: (i) Underlying Securities described in the Trust Agreement; (ii) all
payments on or collections in respect of the Underlying Securities accrued on or
after May 1, 2001 together with any proceeds thereof; and (iii) all funds from
time to time deposited with the Trustee relating to the Certificates, together
with any and all income, proceeds and payments with respect thereto; provided,
however, that any income from the investment of Trust funds in certain permitted
investments ("Eligible Investments") does not constitute Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith,
distributions will be made on each Distribution Date, to the Person in whose
name this Certificate is registered on the applicable Record Date, in an amount
equal to such Certificateholder's proportionate undivided beneficial ownership
interest in the amount required to be distributed to the Holders of the
Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding such
Distribution Date (whether or not a Business Day). If a payment with respect to
the Underlying Securities is made to the Trustee after the date on which such
payment was due, then the Trustee will distribute any such amounts received on
the next occurring Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Trust, or join in any institution against the Trust of, any
bankruptcy proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates or
the Trust Agreement.
Distributions made on this Certificate will be made as
provided in the Trust Agreement by the Trustee by wire transfer in immediately
available funds, or check mailed to the Certificateholder of record in the
A-1-2
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee shall be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the Corporate Trust Office or
such other location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not entitle the Holder hereof to any benefit under the Trust Agreement or
be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-16 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
-----------------------------------------
Authorized Signatory
Dated: [_________]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates,
Series 2001-16, described in the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
---------------------------------
Authorized Signatory
A-1-4
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to
certain payments and collections respecting the Underlying Securities, all as
more specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to the
Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of Class A-1 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate) shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent in
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $25.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, the City of New York, duly endorsed
by or accompanied by an assignment in the form below and by such other documents
as required by the Trust Agreement, and thereupon one or more new Certificates
of the same class in authorized denominations evidencing the same principal
amount will be issued to the designated transferee or transferees. The initial
Certificate Registrar appointed under the Trust Agreement is U.S. Bank Trust
National Association.
No service charge will be made for any registration of
transfer or exchange, but the Trustee may require exchange of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that
the Trust created thereunder shall constitute a fixed investment trust for
federal income tax purposes under Treasury Regulation Section 301.7701-4, and
the Certificateholder agrees to treat the Trust, any distributions therefrom and
A-1-5
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall terminate
upon the earliest to occur of (i) the distribution in full of all amounts due to
Certificateholders and retirement of the Underlying Securities; (ii) the
distribution in full of all Underlying Securities to the exchanging
Certificateholders on any Optional Exchange Date and any amounts due to
Certificateholders on any Optional Exchange Date; and (iii) the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof.
An employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and holding
of the Certificates would not be prohibited under ERISA or the Code.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to transfer said Certificate on the books
of the Certificate Register, with full power of substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed by
an "eligible guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Certificate Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A-1-7
EXHIBIT A-2
-----------
Class A-2 Certificate
---------------------
NUMBER [__] $[________]
CUSIP NO. [_________]
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED
BENEFICIAL OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION
OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS
ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
SERIES 2001-16
$[__________] PRINCIPAL AMOUNT
evidencing a proportionate undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $[__________]
aggregate principal amount of 7.75% Debentures due November 15, 2029, issued by
Georgia-Pacific Corporation (the "Underlying Security Issuer") and all payments
received thereon (the "Trust Property"), deposited in trust by Xxxxxx ABS
Corporation (the "Depositor").
THIS CERTIFIES THAT [________] is the registered owner of
$[_________] DOLLARS nonassessable, fully-paid, proportionate undivided
beneficial ownership interest in the Corporate Backed Trust Certificates, Series
2001-16 Trust, formed by the Depositor.
A-2-1
The Trust was created pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Standard Terms"), between the
Depositor and U.S. Bank Trust National Association, a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement, Series 2001-16, dated as
of May 1, 2001 (the "Series Supplement" and, together with the Standard Terms,
the "Trust Agreement"). This Certificate does not purport to summarize the Trust
Agreement and reference is hereby made to the Trust Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and obligations of the Trustee
with respect hereto. A copy of the Trust Agreement may be obtained from the
Trustee by written request sent to the Corporate Trust Office. Capitalized terms
used but not defined herein have the meanings assigned to them in the Trust
Agreement.
This Certificate is one of the duly authorized Certificates
designated as the "Corporate Backed Trust Certificates, Series 2001-16, Class
A-2" (herein called the "Certificates"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The Trust Property consists
of: (i) Underlying Securities described in the Trust Agreement; (ii) all
payments on or collections in respect of the Underlying Securities accrued on or
after May 1, 2001 together with any proceeds thereof; and (iii) all funds from
time to time deposited with the Trustee relating to the Certificates, together
with any and all income, proceeds and payments with respect thereto; provided,
however, that any income from the investment of Trust funds in certain permitted
investments ("Eligible Investments") does not constitute Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith, no
distributions of interest will be made on this Certificate on any Distribution
Date.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith,
the Trust will distribute on the Final Scheduled Distribution Date, to the
Person in whose name this Certificate is registered on the applicable Record
Date, an amount equal to such Certificateholder's proportionate undivided
beneficial ownership interest in the amount required to be distributed to the
Holders of the Certificates on such Final Scheduled Distribution Date.
The Record Date applicable to the Final Scheduled Distribution
Date is the close of business on the day immediately preceding such Final
Scheduled Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day (a "Special Distribution Date").
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Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Trust, or join in any institution against the Trust of, any
bankruptcy proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates or
the Trust Agreement.
Distributions made on this Certificate will be made as
provided in the Trust Agreement by the Trustee by wire transfer in immediately
available funds, or check mailed to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee shall be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the Corporate Trust Office or
such other location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not entitle the Holder hereof to any benefit under the Trust Agreement or
be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, SERIES 2001-16 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
--------------------------------------------------
Authorized Signatory
Dated: [____________]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates,
Series 2001-16, described in the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
---------------------------------
Authorized Signatory
A-2-4
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to
certain payments and collections respecting the Underlying Securities, all as
more specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to the
Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of Class A-2 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate) shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent in
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable in fully registered form only in
minimum principal amounts of $1,000 and in integral multiples of $1 in excess
thereof.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, the City of New York, duly endorsed
by or accompanied by an assignment in the form below and by such other documents
as required by the Trust Agreement, and thereupon one or more new Certificates
of the same class in authorized denominations evidencing the same 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
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its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall terminate
upon the earliest to occur of (i) the distribution in full of all amounts due to
Certificateholders and retirement of the Underlying Securities; (ii) the
distribution in full of all Underlying Securities to the exchanging
Certificateholders on any Optional Exchange Date and any amounts due to
Certificateholders on any Optional Exchange Date; and (iii) the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof.
An employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and holding
of the Certificates would not be prohibited under ERISA or the Code.
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to transfer said Certificate on the books
of the Certificate Register, with full power of substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed by
an "eligible guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Certificate Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
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EXHIBIT B-1
-----------
FORM OF CLASS A-1 CALL WARRANT
------------------------------
CORPORATE BACKED TRUST CERTIFICATES, SERIES 2001-16 TRUST
Class A-1 Call Warrant
Dated as of [________], 2001
THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE
A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM
UNDER SUCH ACT. THIS CALL WARRANT REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS CALL WARRANT.
CORPORATE BACKED TRUST CERTIFICATES, SERIES 2001-16 TRUST
Class A-1 Call Warrant
[1,000,000] Class A-1 Call Warrants, each representing a $[25]
principal amount of Class A-1 Certificates
No. W-[__] [_______], 2001
Corporate Backed Trust Certificates, Series 2001-16 Trust (the
"Trust"), a trust created under the laws of the State of New York pursuant to a
Standard Terms for Trust Agreements, dated as of January 16, 2001 (the
"Agreement"), between Xxxxxx ABS Corporation (the "Depositor") and U.S. Bank
Trust National Association, a national banking association, not in its
individual capacity but solely as Trustee (the "Trustee"), as supplemented by
the Series Supplement 2001-16, dated as of [_______], 2001 (the "Series
Supplement") and, together with the Agreement, the "Trust Agreement"), between
the Depositor and the Trustee, for value received, hereby certifies that
[_________] or registered assigns, is entitled to purchase [1,000,000] [9.00]%
Class A-1 Certificates due November 15, 2029 (the "Certificates"), issued by
Corporate Backed Trust Certificates, Series 2001-16 Trust in whole or from time
to time in part on any Call Date (as defined below) designated by the holder of
this instrument (this "Call Warrant") at a purchase price equal to the Call
Price (as defined below), all subject to the terms and conditions set forth
below.
Certain capitalized terms used in this Call Warrant are defined in
Article IV hereof; capitalized terms used but not defined herein shall have the
respective meanings set forth in the Trust Agreement; references to an "Exhibit"
are, unless otherwise specified, to one of the Exhibits attached to this Call
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Warrant and references to a "Section" are, unless otherwise specified, to one of
the sections of this Call Warrant.
ARTICLE I
Exercise of Call Warrants
Section 1.1 Manner of Exercise. (a) This Call Warrant may be exercised
by the holder hereof (each, a "Warrant Holder"), in whole or in part, on any
Call Date, set forth in a written notice delivered to the Warrant Agent and the
Trustee at any time on or before the Business Day that is at least 5 Business
Days before such Call Date, by surrender of this Call Warrant to the Warrant
Agent at its office set forth in Section 6.3 hereof no later than 10:00 a.m.
(New York City time) on such Call Date; provided that such holder shall have
made payment to the Warrant Agent, by wire transfer or other immediately
available funds acceptable to the Warrant Agent, in the amount of the applicable
Call Price, in a manner such that funds are available to the Warrant Agent no
later than 10:00 a.m. (New York City time) on such Call Date, and such holder
shall thereupon be entitled to delivery of the Certificates in a Certificate
Principal Amount equal to $25 per Call Warrant (if exercised in whole); provided
further that the Warrant Holder may not exercise this Call Warrant at any time
when such Warrant Holder is insolvent, and in connection therewith, such Warrant
Holder shall be required to certify that it is solvent at the time of exercise
settlement, by completing the Form of Subscription attached to this Call Warrant
and delivering such completed Form of Subscription to the Trustee on or prior to
the Call Date and deliver to the Trustee a form reasonably satisfactory to the
Trustee of the opinion and the solvency certificate required pursuant to Section
7(b)(iv) of the Series Supplement. Such notice of the exercise of a Call Warrant
shall be deemed to be notice of an Optional Exchange pursuant to Section 7(a) of
the Series Supplement.
(b) The Warrant Agent shall notify the Trustee immediately
upon receipt by the Warrant Agent of a notice by the holder of this Call Warrant
and upon receipt of payment of the applicable Call Price from such holder
pursuant to clause (a) of this Section 1.1. The Warrant Agent shall transfer
each payment made by the holder hereof pursuant to clause (a) of this Section
1.1 to the Trustee in immediately available funds, for application pursuant to
the Trust Agreement on the applicable Call Date (and, pending such transfer,
shall hold each such payment for the benefit of the holder hereof in a
segregated trust account).
(c) A notice by the holder of a Call Warrant does not impose
any obligations on a holder of a Call Warrant in any way to pay any Call Price.
If, by 10:00 a.m. (New York City time) on the Call Date, the holder of the Call
Warrant being exercised has not paid the Call Price, then such notice shall
automatically expire and none of the holder of such Call Warrant, the Warrant
Agent and the Trustee shall have any obligations with respect to such notice by
the holder of such Call Warrant. The expiration of a notice by the holder of
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this Call Warrant shall in no way affect a holder of a Call Warrant's right to
subsequently deliver a notice which satisfies the terms of the Trust Agreement.
Section 1.2 Transfer of Certificates. As soon as practicable after each
surrender of this Call Warrant, in whole or in part on the Call Date and upon
satisfaction of all other requirements described in this Call Warrant, the
Warrant Agent shall instruct the Trustee to effect an exchange of the portion of
the Certificates called for Underlying Securities pursuant to Section 7(a)
hereof, and, in case such exercise is in part only, a new Call Warrant of like
tenor, representing the remaining outstanding Call Warrants of the holder, shall
be delivered by the Warrant Agent to the holder hereof.
Section 1.3 Cancellation and Destruction of Call Warrant. All Call
Warrants surrendered to the Warrant Agent for the purpose of exercise (in whole
or in part) pursuant to Section 1.1 and actually exercised, or for the purpose
of transfer or exchange pursuant to Article III, shall be cancelled by the
Warrant Agent, and no Call Warrant shall be issued in lieu thereof. The Warrant
Agent shall destroy all cancelled Call Warrants.
Section 1.4 No Rights as Holder of Certificates Conferred by Call
Warrants. Prior to the exercise hereof, this Call Warrant shall not entitle the
holder hereof to any of the rights of a holder of the Certificates, including,
without limitation, the right to receive the payment of any amount on or in
respect of the Certificates or to enforce any of the covenants of the Trust
Agreement.
ARTICLE II
Restrictions on Transfer
Section 2.1 Restrictive Legends. Except as otherwise permitted by this
Article II, each Call Warrant (including each Call Warrant issued upon the
transfer of any Call Warrant) shall be issued with a legend in substantially the
following form:
"This Call Warrant has not been registered under the
Securities Act of 1933, as amended, and may not be transferred, sold or
otherwise disposed of except while a registration under such Act is in effect or
pursuant to an exemption therefrom under such Act. This Call Warrant represented
hereby may be transferred only in compliance with the conditions specified in
this Call Warrant."
Section 2.2 Notice of Proposed Transfer; Opinions of Counsel. Prior to
any transfer of any Call Warrant or portion thereof, the holder hereof will give
five (5) Business Days (or such lesser period acceptable to the Warrant Agent)
prior written notice to the Warrant Agent of such holder's intention to effect
such transfer.
ARTICLE III
Registration and Transfer of Call Warrants, etc.
B-1-3
Section 3.1 Warrant Register; Ownership of Call Warrants. The Warrant
Agent will keep a register in which the Warrant Agent will provide for the
registration of Call Warrants and the registration of transfers of Call Warrants
representing whole numbers of Call Warrants. The Trustee and the Warrant Agent
may treat the Person in whose name any Call Warrant is registered on such
register so the owner thereof for all purposes, and the Trustee and the Warrant
Agent shall not be affected by any notice to the contrary.
Section 3.2 Transfer and Exchange of Call Warrants. Upon surrender of
any Call Warrant for registration of transfer or for exchange to the Warrant
Agent, the Warrant Agent shall (subject to compliance with Article II) execute
and deliver, and cause the Trustee, on behalf of the Trust, to execute and
deliver, in exchange therefor, a new Call Warrant of like tenor and evidencing a
like whole number of Call Warrants, in the name of such holder or as such holder
(upon payment by such holder of any applicable transfer taxes or government
charges) may direct.
Section 3.3 Replacement of Call Warrants Upon receipt of evidence
reasonably satisfactory to the Warrant Agent of the loss, theft, destruction or
mutilation of any Call Warrant and, in the case of any such loss, theft or
destruction of any Call Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Warrant Agent may determine, or, in the case of any
such mutilation, upon the surrender of such Call Warrant for cancellation to the
Warrant Agent, the Warrant Agent shall execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a new
Call Warrant of like tenor bearing a number not contemporaneously outstanding.
Section 3.4 Execution and Delivery of Call Warrants by Trustee. The
Trustee, on behalf of the Trust, hereby agrees (subject to compliance with
Article II) to execute and deliver such new Call Warrants issued in accordance
with Section 1.2 or this Article III as the Warrant Agent shall request in
accordance herewith.
ARTICLE IV
Definitions
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any day occurring on or after [______], 2006, or after the
announcement of any redemption or other unscheduled payment of the Certificates
on which the Call Warrants are exercised and the proceeds of an Optional Call
(as defined in the Series Supplement) are distributed to the Holders of the
Certificates pursuant to Section 7 of the Series Supplement.
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"Call Price": An amount paid by the Warrant Holder on each Call Date
equal to the principal amount of the Certificates being purchased pursuant to
the exercise of the Call Warrants plus accrued and unpaid interest (including
any deferred distributions with interest thereon) to and including the Call
Date.
"Call Warrant": This instrument evidencing the right to call the
Certificates.
"Closing Date": [_________], 2001.
"Depositor": As defined in the introduction to this Call Warrant, or
any successor thereto under the Trust Agreement.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. and any thereto.
"Responsible Officer": As defined in the Trust Agreement.
"Securities Act": The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Trust": As defined in the introduction to this Call Warrant.
"Trust Agreement": The Standard Terms for Trust Agreements, dated as of
January 16, 2001, between the Depositor and the Trustee, as supplemented by the
Series Supplement 2001-16, dated as of May 1, 2001, between the Depositor and
the Trustee, incorporating by reference the definitions and assumptions thereto,
as the same may be amended or modified from time to time.
"Trustee": As defined in the introduction to this Warrant, or any
successor thereto under the Trust Agreement.
"Warrant Agent": U.S. Bank Trust National Association, a national
banking association, in its capacity as warrant agent hereunder, or any
successor thereto hereunder.
ARTICLE V
Warrant Agent
B-1-5
Section 5.1 Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of the Call
Warrants in reliance upon any instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document in good faith believed by it
to be genuine and to be signed, executed and, where necessary, verified and
acknowledged, by the proper Person or Persons.
Section 5.2 Duties of Warrant Agent. The Warrant Agent undertakes only
the specific duties and obligations imposed hereunder upon the following terms
and conditions, by all of which the Depositor, the Trust, the Trustee and each
holder of a Call Warrant shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may
be legal counsel for the Depositor), and the opinion of such counsel shall be
full and complete authorization and protection to the Warrant Agent as to any
action taken or omitted by it in good faith and in accordance with such opinion,
provided the Warrant Agent shall have exercised reasonable care in the selection
by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Depositor or the Trustee prior to taking or
suffering any action hereunder, such fact or matter may be deemed to be
conclusively proved and established by a Depositor Order or a certificate signed
by a Responsible Officer of the Trustee and delivered to the Warrant Agent; and
such certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it hereunder in reliance upon such
certificate.
(c) The Warrant Agent shall be liable hereunder only for its
own negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained herein or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Trust and the Depositor only.
(e) The Warrant Agent shall not have any responsibility in
respect of and makes no representation as to the validity of this Call Warrant
or the execution and delivery hereof (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 this Call Warrant; nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
Certificates to be purchased hereunder.
(f) The Warrant Agent is xxxxxx authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the Chief Executive Officer, Chief Financial Officer,
Chief Operating Officer, President, a Vice President, a Senior Vice President, a
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Managing Director, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary of the Depositor, and any Responsible Officer of the
Trustee, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
(g) The Warrant Agent and any shareholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the Call
Warrants or other securities of the Trust or otherwise act as fully and freely
as though it were not Warrant Agent hereunder, so long as such persons do so in
full compliance with all applicable laws. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Trust, the Depositor or
for any other legal entity.
(h) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the
Trust hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into this Call Warrant against the
Warrant Agent, whose duties shall be determined solely by the express provisions
hereof. 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 this Call Warrant.
(l) The Trustee will perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as may be required by the Warrant Agent in
order to enable it to carry out or perform its duties hereunder.
Section 5.3 Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties hereunder upon thirty (30) days notice in writing
mailed to the Depositor and the Trustee by registered or certified mail, and to
the holders of the Call Warrants by first-class mail at the expense of the
Depositor; provided that no such resignation or discharge shall become effective
until a successor Warrant Agent shall have been appointed hereunder. The
Depositor may remove the Warrant Agent or any successor Warrant Agent upon
B-1-7
thirty (30) days notice in writing, mailed to the Warrant Agent or successor
Warrant Agent, as the case may be, and to the holders of the Call Warrants by
first-class mail; provided further that no such removal shall become effective
until a successor Warrant Agent shall have been appointed hereunder. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Depositor shall promptly appoint a successor to the Warrant Agent,
which may be designated as an interim Warrant Agent. If an interim Warrant Agent
is designated, the Depositor shall then appoint a permanent successor to the
Warrant Agent, which may be the interim Warrant Agent. If the Depositor shall
fail to make such appointment of a permanent successor within a period of thirty
(30) days after such removal or within sixty (60) days after notification in
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by the holder of a Call Warrant, then the Warrant Agent or
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of such a successor. Any successor to the
Warrant Agent appointed hereunder must be rated in one on the four highest
rating categories by the Rating Agencies. Any entity which may be merged or
consolidated with or which shall otherwise succeed to substantially all of the
trust or agency business of the Warrant Agent shall be deemed to be the
successor Warrant Agent without any further action.
ARTICLE VI
Miscellaneous
Section 6.1 Remedies. The remedies at law of the holder of this Call
Warrant 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 this Call Warrant
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 hereof or otherwise.
Section 6.2 Limitation on Liabilities of Holder. Nothing contained in
this Call Warrant shall be construed as imposing any obligation on the holder
hereof to purchase any of the Certificates except in accordance with the terms
hereof.
Section 6.3 Notices. All notices and other communications under this
Call Warrant shall be in writing and shall be delivered, or mailed by registered
or certified mail, return receipt requested, by a nationally recognized
overnight courier, postage prepaid, addressed (a) if to any holder of any Call
Warrant, at the registered address of such holder as set forth in the register
kept by the Warrant Agent or (b) if to the Warrant Agent, to 000 Xxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust or to such
other address notice of which the Warrant Agent shall have given to the holder
hereof 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 Warrant shall be effective on the manner provided in Article I.
B-1-8
Section 6.4 Amendment. (a) This Call Warrant may be amended from time
to time by the Depositor, the Trustee and the Warrant Agent without the consent
of any holder hereof, upon receipt of an opinion of counsel satisfactory to the
Warrant Agent that the provisions hereof have been satisfied and that such
amendment would not alter the status of the Trust as a grantor trust under the
Code, for any of the following purposes: (i) to cure any ambiguity or to correct
or supplement any provision herein which may be defective or inconsistent with
any other provision herein or to provide for any other terms or modify any other
provisions with respect to matters or questions arising under this Warrant which
shall nor adversely affect in any material respect the interests of the holder
hereof or any holder of a Certificate or (ii) to evidence and provide for the
acceptance of appointment hereunder of a Warrant Agent other than U.S. Bank
Trust National Association.
(b) Without limiting the generality of the foregoing, this
Call Warrant may also be modified or amended from time to time by the Depositor,
the Trustee and the Warrant Agent with the consent of the holders of 66-2/3% of
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 seen satisfied, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Call
Warrant or of modifying in any manner the rights of the holders of this Call
Warrant; 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 nor less than the Required
Percentage-Amendment of the aggregate Voting Rights of such affected
Certificates (as such terms are defined in the Trust Agreement) and without
written confirmation from the Rating Agencies that such amendment will not
result in a downgrading or withdrawal of its rating of the Certificates; (ii)
alter the dates on which Call Warrants are exercisable or the amounts
deliverable upon exercise of a Warrant without the consent of the holders of
Certificates evidencing not less than 100% of the aggregate Voting Rights of
such affected Certificates and the holders of 100% of the affected Call Warrants
or (iii) reduce the percentage of aggregate Voting Rights required by (i) or
(ii) without the consent of the holders of all such affected Certificates.
Notwithstanding any other provision of this Warrant, this Section 6.4(b) shall
not be amended without the consent of the holders of 100% of the affected Call
Warrants.
(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 holder of a Call Warrant, to the Trustee and to the Rating
Agencies. It shall not be necessary for the consent of holders of Call Warrants
or Certificates under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof shall be subject to such reasonable
regulations as the Warrant Agent may prescribe.
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Section 6.5 Expiration. The right to exercise this Call Warrant shall
expire on the earliest to occur of (a) the cancellation hereof, (b) the
termination of the Trust Agreement or (c) the liquidation, disposition, or
maturity of all of the Certificates.
Section 6.6 Descriptive Headings. The headings in this Call Warrant are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 6.7 GOVERNING LAW. THIS CALL WARRANT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial
proceeding brought against the Trust, the Trustee or the Warrant Agent with
respect to this Call Warrant 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 this Call Warrant, 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 Call Warrant, subject to any
rights of appeal, and (b) irrevocably waive any objection that the Trust or the
Trustee, 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. Each party hereto hereby waives, to the fullest extent
permitted by law, any right to a trial by jury in respect of any litigation
arising directly or indirectly out of, under or in connection with any of the
transaction documents or any of the transactions contemplated hereunder. Each
party hereto (a) certifies that no representative, agent or attorney of any
party hereto has represented, expressly or otherwise, that it would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it has been induced to enter into the transaction documents to which it is
a party by, among other things, this waiver.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the holder
of this Call Warrant by its acceptance hereof, and (ii) the Warrant Agent
agrees, that it shall not (and, in the case of the holder, that it shall not
direct the Warrant Agent to), until the date which is one year and one day after
the payment in full of the Certificates and all other securities issued by the
Trust, the Depositor or entities formed, established or settled by the
Depositor, acquiesce, petition or otherwise invoke or cause the Trust, the
Depositor, or any such other entity to invoke the process of the United States
of America, any State or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government for the purpose of commencing or
sustaining a case by or against the Trust, the Depositor or any such other
entity under a federal or state bankruptcy, insolvency or similar law or
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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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Each of (i) the holder of this Call Warrant, by its acceptance hereof,
and (ii) the Warrant Agent agrees, that it shall not have any recourse to the
Certificates.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee and Authenticating Agent
By:_____________________________________
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:_____________________________________
Authorized Signatory
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FORM OF SUBSCRIPTION
[To be executed only upon exercise of Call Warrants]
To: Corporate Backed Trust Certificates, Series 2001-16 Trust
U.S. Bank Trust National Association, as Trustee
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
The undersigned registered holder of the within Call Warrant, having
previously given notice thereof in accordance with the terms of the Call
Warrant, hereby irrevocably exercises Warrant(s) for, and purchases pursuant
thereto, the Certificates receivable upon such exercise, and herewith makes
payment of $[ ] per Call Warrant therefor, and requests that such Certificates
be transferred to __________ [insert information required for transfer of
Certificates]. In connection therewith, the undersigned hereby certifies that it
is solvent as of the date hereof, as required by Section 1.1 of the Call
Warrant.
Dated:
(Signature must conform in all respects to name of holder as specified
on the face of Call Warrant)
(Street Address)
(City) (State) (Zip Code)
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FORM OF ASSIGNMENT
[To be executed only upon transfer of Call Warrant]
For value received, the undersigned registered holder of the within
Call Warrant hereby sells, assigns and transfers unto ______ the _______ Call
Warrant(s) [Must be whole number] to purchase Certificates to which such Call
Warrant relates, and appoints Attorney to make such transfer on the books of the
Warrant Agent maintained for such purpose, with full power of substitution in
the premises.
Dated:
(Signature must conform in all respects to name of holder as specified
on the face of Warrant)
(Street Address)
(City State) (Zip Code)
Signed in the presence of:
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EXHIBIT B-2
-----------
FORM OF CLASS A-2 CALL WARRANT
------------------------------
CORPORATE BACKED TRUST CERTIFICATES, SERIES 2001-16 TRUST
Class A-2 Call Warrant
Dated as of [_______], 2001
THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE
A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM
UNDER SUCH ACT. THIS CALL WARRANT REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS CALL WARRANT.
CORPORATE BACKED TRUST CERTIFICATES, SERIES 2001-16 TRUST
Class A-2 Call Warrant
[4,033] Class A-2 Call Warrants, each representing a $[1000] principal
amount of Class A-2 Certificates
No. W-[__] [_________], 2001
Corporate Backed Trust Certificates, Series 2001-16 Trust (the
"Trust"), a trust created under the laws of the State of New York pursuant to a
Standard Terms for Trust Agreements, dated as of January 16, 2001 (the
"Agreement"), between Xxxxxx ABS Corporation (the "Depositor") and U.S. Bank
Trust National Association, a national banking association, not in its
individual capacity but solely as Trustee (the "Trustee"), as supplemented by
the Series Supplement 2001-16, dated as of [________], 2001 (the "Series
Supplement") and, together with the Agreement, the "Trust Agreement"), between
the Depositor and the Trustee, for value received, hereby certifies that
[________] or registered assigns, is entitled to purchase $[4,033,000] aggregate
principal amount of Class A-2 Certificates due November 15, 2029, issued by
Corporate Backed Trust Certificates, Series 2001-16 Trust in whole or from time
to time part on any Call Date (as defined below) designated by the holder of
this instrument (this "Call Warrant") at a purchase price equal to the Call
Price (as defined below), all subject to the terms and conditions set forth
below.
Certain capitalized terms used in this Call Warrant are defined in
Article IV hereof; capitalized terms used but not defined herein shall have the
respective meanings set forth in the Trust Agreement; references to an "Exhibit"
are, unless otherwise specified, to one of the Exhibits attached to this Call
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Warrant and references to a "Section" are, unless otherwise specified, to one of
the sections of this Call Warrant.
ARTICLE I
Exercise of Call Warrants
Section 1.1 Manner of Exercise. (a) This Call Warrant may be exercised
by the holder hereof (each, a "Warrant Holder"), in whole or in part, on any
Call Date, set forth in a written notice delivered to the Warrant Agent and the
Trustee at any time on or before the Business Day that is at least 5 Business
Days before such Call Date, by surrender of this Call Warrant to the Warrant
Agent at its office set forth in Section 6.3 hereof no later than 10:00 a.m.
(New York City time) on such Call Date; provided that such holder shall have
made payment to the Warrant Agent, by wire transfer or other immediately
available funds acceptable to the Warrant Agent, in the amount of the applicable
Call Price, in a manner such that funds are available to the Warrant Agent no
later than 10:00 a.m. (New York City time) on such Call Date, and such holder
shall thereupon be entitled to delivery of the Certificates in a Certificate
Principal Amount equal to $[25] per Call Warrant (if exercised in whole);
provided further that the Warrant Holder may not exercise this Call Warrant at
any time when such Warrant Holder is insolvent, and in connection therewith,
such Warrant Holder shall be required to certify that it is solvent at the time
of exercise settlement, by completing the Form of Subscription attached to this
Call Warrant and delivering such completed Form of Subscription to the Trustee
on or prior to the Call Date and deliver to the Trustee a form reasonably
satisfactory to the Trustee of the opinion and the solvency certificate required
pursuant to Section 7(b)(iv) of the Series Supplement. Such notice of the
exercise of a Call Warrant shall be deemed to be notice of an Optional Exchange
pursuant to Section 7(a) of the Series Supplement.
(b) The Warrant Agent shall notify the Trustee immediately
upon receipt by the Warrant Agent of a notice by the holder of this Call Warrant
and upon receipt of payment of the applicable Call Price from such holder
pursuant to clause (a) of this Section 1.1. The Warrant Agent shall transfer
each payment made by the holder hereof pursuant to clause (a) of this Section
1.1 to the Trustee in immediately available funds, for application pursuant to
the Trust Agreement on the applicable Call Date (and, pending such transfer,
shall hold each such payment for the benefit of the holder hereof in a
segregated trust account).
(c) A notice by the holder of a Call Warrant does not impose
any obligations on a holder of a Call Warrant in any way to pay any Call Price.
If, by 10:00 a.m. (New York City time) on the Call Date, the holder of the Call
Warrant being exercised has not paid the Call Price, then such notice shall
automatically expire and none of the holder of such Call Warrant, the Warrant
Agent and the Trustee shall have any obligations with respect to such notice by
the holder of such Call Warrant. The expiration of a notice by the holder of
this Call Warrant shall in no way affect a holder of a Call Warrant's right to
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subsequently deliver a notice which satisfies the terms of the Trust Agreement.
Section 1.2 Transfer of Certificates. As soon as practicable after each
surrender of this Call Warrant, in whole or in part on the Call Date and upon
satisfaction of all other requirements described in this Call Warrant, the
Warrant Agent shall instruct the Trustee to effect an exchange of the portion of
the Certificates called for Underlying Securities pursuant to Section 7(a)
hereof, and, in case such exercise is in part only, a new Call Warrant of like
tenor, representing the remaining outstanding Call Warrants of the holder, shall
be delivered by the Warrant Agent to the holder hereof.
Section 1.3 Cancellation and Destruction of Call Warrant. All Call
Warrants surrendered to the Warrant Agent for the purpose of exercise (in whole
or in part) pursuant to Section 1.1 and actually exercised, or for the purpose
of transfer or exchange pursuant to Article III, shall be cancelled by the
Warrant Agent, and no Call Warrant shall be issued in lieu thereof. The Warrant
Agent shall destroy all cancelled Call Warrants.
Section 1.4 No Rights as Holder of Certificates Conferred by Call
Warrants. Prior to the exercise hereof, this Call Warrant shall not entitle the
holder hereof to any of the rights of a holder of the Certificates, including,
without limitation, the right to receive the payment of any amount on or in
respect of the Certificates or to enforce any of the covenants of the Trust
Agreement.
ARTICLE II
Restrictions on Transfer
Section 2.1 Restrictive Legends. Except as otherwise permitted by this
Article II, each Call Warrant (including each Call Warrant issued upon the
transfer of any Call Warrant) shall be issued with a legend in substantially the
following form:
"This Call Warrant has not been registered under the
Securities Act of 1933, as amended, and may not be transferred, sold or
otherwise disposed of except while a registration under such Act is in effect or
pursuant to an exemption therefrom under such Act. This Call Warrant represented
hereby may be transferred only in compliance with the conditions specified in
this Call Warrant."
Section 2.2 Notice of Proposed Transfer; Opinions of Counsel. Prior to
any transfer of any Call Warrant or portion thereof, the holder hereof will give
five (5) Business Days (or such lesser period acceptable to the Warrant Agent)
prior written notice to the Warrant Agent of such holder's intention to effect
such transfer.
ARTICLE III
Registration and Transfer of Call Warrants, etc.
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Section 3.1 Warrant Register; Ownership of Call Warrants. The Warrant
Agent will keep a register in which the Warrant Agent will provide for the
registration of Call Warrants and the registration of transfers of Call Warrants
representing whole numbers of Call Warrants. The Trustee and the Warrant Agent
may treat the Person in whose name any Call Warrant is registered on such
register so the owner thereof for all purposes, and the Trustee and the Warrant
Agent shall not be affected by any notice to the contrary.
Section 3.2 Transfer and Exchange of Call Warrants. Upon surrender of
any Call Warrant for registration of transfer or for exchange to the Warrant
Agent, the Warrant Agent shall (subject to compliance with Article II) execute
and deliver, and cause the Trustee, on behalf of the Trust, to execute and
deliver, in exchange therefor, a new Call Warrant of like tenor and evidencing a
like whole number of Call Warrants, in the name of such holder or as such holder
(upon payment by such holder of any applicable transfer taxes or government
charges) may direct.
Section 3.3 Replacement of Call Warrants Upon receipt of evidence
reasonably satisfactory to the Warrant Agent of the loss, theft, destruction or
mutilation of any Call Warrant and, in the case of any such loss, theft or
destruction of any Call Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Warrant Agent may determine, or, in the case of any
such mutilation, upon the surrender of such Call Warrant for cancellation to the
Warrant Agent, the Warrant Agent shall execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a new
Call Warrant of like tenor bearing a number not contemporaneously outstanding.
Section 3.4 Execution and Delivery of Call Warrants by Trustee. The
Trustee, on behalf of the Trust, hereby agrees (subject to compliance with
Article II) to execute and deliver such new Call Warrants issued in accordance
with Section 1.2 or this Article III as the Warrant Agent shall request in
accordance herewith.
ARTICLE IV
Definitions
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any day occurring on or after [_______] 2006, or after the
announcement of any redemption or other unscheduled payment of the Certificates
on which the Call Warrants are exercised and the proceeds of an Optional Call
(as defined in the Series Supplement) are distributed to the Holders of the
Certificates pursuant to Section 7 of the Series Supplement.
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"Call Price": An amount for each Call Date equal to the Accreted
Principal Amount of the Class A-2 Certificates to be purchased by the Warrant
Holder on such date.
"Call Warrant": This instrument evidencing the right to call the
Certificates.
"Closing Date": [________], 2001.
"Depositor": As defined in the introduction to this Call Warrant, or
any successor thereto under the Trust Agreement.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. and any thereto.
"Responsible Officer": As defined in the Trust Agreement.
"Securities Act": The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Trust": As defined in the introduction to this Call Warrant.
"Trust Agreement": The Standard Terms for Trust Agreements, dated as of
January 16, 2001, between the Depositor and the Trustee, as supplemented by the
Series Supplement 2001-16, dated as of May 1, 2001, between the Depositor and
the Trustee, incorporating by reference the definitions and assumptions thereto,
as the same may be amended or modified from time to time.
"Trustee": As defined in the introduction to this Warrant, or any
successor thereto under the Trust Agreement.
"Warrant Agent": U.S. Bank Trust National Association, a national
banking association, in its capacity as warrant agent hereunder, or any
successor thereto hereunder.
ARTICLE V
Warrant Agent
Section 5.1 Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of the Call
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Warrants in reliance upon any instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document in good faith believed by it
to be genuine and to be signed, executed and, where necessary, verified and
acknowledged, by the proper Person or Persons.
Section 5.2 Duties of Warrant Agent. The Warrant Agent undertakes only
the specific duties and obligations imposed hereunder upon the following terms
and conditions, by all of which the Depositor, the Trust, the Trustee and each
holder of a Call Warrant shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may
be legal counsel for the Depositor), and the opinion of such counsel shall be
full and complete authorization and protection to the Warrant Agent as to any
action taken or omitted by it in good faith and in accordance with such opinion,
provided the Warrant Agent shall have exercised reasonable care in the selection
by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Depositor or the Trustee prior to taking or
suffering any action hereunder, such fact or matter may be deemed to be
conclusively proved and established by a Depositor Order or a certificate signed
by a Responsible Officer of the Trustee and delivered to the Warrant Agent; and
such certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it hereunder in reliance upon such
certificate.
(c) The Warrant Agent shall be liable hereunder only for its
own negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained herein or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Trust and the Depositor only.
(e) The Warrant Agent shall not have any responsibility in
respect of and makes no representation as to the validity of this Call Warrant
or the execution and delivery hereof (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 this Call Warrant; nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
Certificates to be purchased hereunder.
(f) The Warrant Agent is xxxxxx authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the Chief Executive Officer, Chief Financial Officer,
Chief Operating Officer, President, a Vice President, a Senior Vice President, a
Managing Director, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary of the Depositor, and any Responsible Officer of the
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Trustee, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
(g) The Warrant Agent and any shareholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the Call
Warrants or other securities of the Trust or otherwise act as fully and freely
as though it were not Warrant Agent hereunder, so long as such persons do so in
full compliance with all applicable laws. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Trust, the Depositor or
for any other legal entity.
(h) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the
Trust hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into this Call Warrant against the
Warrant Agent, whose duties shall be determined solely by the express provisions
hereof. 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 this Call Warrant.
(l) The Trustee will perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as may be required by the Warrant Agent in
order to enable it to carry out or perform its duties hereunder.
Section 5.3 Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties hereunder upon thirty (30) days notice in writing
mailed to the Depositor and the Trustee by registered or certified mail, and to
the holders of the Call Warrants by first-class mail at the expense of the
Depositor; provided that no such resignation or discharge shall become effective
until a successor Warrant Agent shall have been appointed hereunder. The
Depositor may remove the Warrant Agent or any successor Warrant Agent upon
thirty (30) days notice in writing, mailed to the Warrant Agent or successor
Warrant Agent, as the case may be, and to the holders of the Call Warrants by
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first-class mail; provided further that no such removal shall become effective
until a successor Warrant Agent shall have teen appointed hereunder. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Depositor shall promptly appoint a successor to the Warrant Agent,
which may be designated as an interim Warrant Agent. If an interim Warrant Agent
is designated, the Depositor shall then appoint a permanent successor to the
Warrant Agent, which may be the interim Warrant Agent. If the Depositor shall
fail to make such appointment of a permanent successor within a period of thirty
(30) days after such removal or within sixty (60) days after notification in
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by the holder of a Call Warrant, then the Warrant Agent or
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of such a successor. Any successor to the
Warrant Agent appointed hereunder must be rated in one on the four highest
rating categories by the Rating Agencies. Any entity which may be merged or
consolidated with or which shall otherwise succeed to substantially all of the
trust or agency business of the Warrant Agent shall be deemed to be the
successor Warrant Agent without any further action.
ARTICLE VI
Miscellaneous
Section 6.1 Remedies. The remedies at law of the holder of this Call
Warrant 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 this Call Warrant
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 hereof or otherwise.
Section 6.2 Limitation on Liabilities of Holder. Nothing contained in
this Call Warrant shall be construed as imposing any obligation on the holder
hereof to purchase any of the Certificates except in accordance with the terms
hereof.
Section 6.3 Notices. All notices and other communications under this
Call Warrant shall be in writing and shall be delivered, or mailed by registered
or certified mail, return receipt requested, by a nationally recognized
overnight courier, postage prepaid, addressed (a) if to any holder of any Call
Warrant, at the registered address of such holder as set forth in the register
kept by the Warrant Agent or (b) if to the Warrant Agent, to 000 Xxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust or to such
other address notice of which the Warrant Agent shall have given to the holder
hereof 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 Warrant shall be effective on the manner provided in Article I.
Section 6.4 Amendment. (a) This Call Warrant may be amended from time
to time by the Depositor, the Trustee and the Warrant Agent without the consent
of any holder hereof, upon receipt of an opinion of counsel satisfactory to the
Warrant Agent that the provisions hereof have been satisfied and that such
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amendment would not alter the status of the Trust as a grantor trust under the
Code, for any of the following purposes: (i) to cure any ambiguity or to correct
or supplement any provision herein which may be defective or inconsistent with
any other provision herein or to provide for any other terms or modify any other
provisions with respect to matters or questions arising under this Warrant which
shall nor adversely affect in any material respect the interests of the holder
hereof or any holder of a Certificate or (ii) to evidence and provide for the
acceptance of appointment hereunder of a Warrant Agent other than U.S. Bank
Trust National Association.
(b) Without limiting the generality of the foregoing, this
Call Warrant may also be modified or amended from time to time by the Depositor,
the Trustee and the Warrant Agent with the consent of the holders of 66-2/3% of
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 seen satisfied, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Call
Warrant or of modifying in any manner the rights of the holders of this Call
Warrant; 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 nor less than the Required
Percentage-Amendment of the aggregate Voting Rights of such affected
Certificates (as such terms are defined in the Trust Agreement) and without
written confirmation from the Rating Agencies that such amendment will not
result in a downgrading or withdrawal of its rating of the Certificates; (ii)
alter the dates on which Call Warrants are exercisable or the amounts
deliverable upon exercise of a Warrant without the consent of the holders of
Certificates evidencing not less than 100% of the aggregate Voting Rights of
such affected Certificates and the holders of 100% of the affected Call Warrants
or (iii) reduce the percentage of aggregate Voting Rights required by (i) or
(ii) without the consent of the holders of all such affected Certificates.
Notwithstanding any other provision of this Warrant, this Section 6.4(b) shall
not be amended without the consent of the holders of 100% of the affected Call
Warrants.
(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 holder of a Call Warrant, to the Trustee and to the Rating
Agencies. It shall not be necessary for the consent of holders of Call Warrants
or Certificates under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof shall be subject to such reasonable
regulations as the Warrant Agent may prescribe.
Section 6.5 Expiration. The right to exercise this Call Warrant shall
expire on the earliest to occur of (a) the cancellation hereof, (b) the
termination of the Trust Agreement or (c) the liquidation, disposition, or
maturity of all of the Certificates.
B-2-9
Section 6.6 Descriptive Headings. The headings in this Call Warrant are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 6.7 GOVERNING LAW. THIS CALL WARRANT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial
proceeding brought against the Trust, the Trustee or the Warrant Agent with
respect to this Call Warrant 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 this Call Warrant, 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 Call Warrant, subject to any
rights of appeal, and (b) irrevocably waive any objection that the Trust or the
Trustee, 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. Each party hereto hereby waives, to the fullest extent
permitted by law, any right to a trial by jury in respect of any litigation
arising directly or indirectly out of, under or in connection with any of the
transaction documents or any of the transactions contemplated hereunder. Each
party hereto (a) certifies that no representative, agent or attorney of any
party hereto has represented, expressly or otherwise, that it would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it has been induced to enter into the transaction documents to which it is
a party by, among other things, this waiver.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the holder
of this Call Warrant by its acceptance hereof, and (ii) the Warrant Agent
agrees, that it shall not (and, in the case of the holder, that it shall not
direct the Warrant Agent to), until the date which is one year and one day after
the payment in full of the Certificates and all other securities issued by the
Trust, the Depositor or entities formed, established or settled by the
Depositor, acquiesce, petition or otherwise invoke or cause the Trust, the
Depositor, or any such other entity to invoke the process of the United States
of America, any State or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government for the purpose of commencing or
sustaining a case by or against the Trust, the Depositor or any such other
entity under a federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust, the Depositor or any such other entity or
all or any part of the property or assets of Trust, the Depositor or any such
other entity or ordering the winding up or liquidation of the affairs of the
Trust, the Depositor or any such other entity.
B-2-10
Each of (i) the holder of this Call Warrant, by its acceptance hereof,
and (ii) the Warrant Agent agrees, that it shall not have any recourse to the
Certificates.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee and Authenticating Agent
By:_____________________________________
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:_____________________________________
Authorized Signatory
B-2-11
FORM OF SUBSCRIPTION
[To be executed only upon exercise of Call Warrants]
To: Corporate Backed Trust Certificates, Series 2001-16 Trust
U.S. Bank Trust National Association, as Trustee
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
The undersigned registered holder of the within Call Warrant, having
previously given notice thereof in accordance with the terms of the Call
Warrant, hereby irrevocably exercises Warrant(s) for, and purchases pursuant
thereto, the Certificates receivable upon such exercise, and herewith makes
payment of $[ ] per Call Warrant therefor, and requests that such Certificates
be transferred to __________ [insert information required for transfer of
Certificates]. In connection therewith, the undersigned hereby certifies that it
is solvent as of the date hereof, as required by Section 1.1 of the Call
Warrant.
Dated:
(Signature must conform in all respects to name of holder as specified
on the face of Call Warrant)
(Street Address)
(City) (State) (Zip Code)
B-2-12
FORM OF ASSIGNMENT
[To be executed only upon transfer of Call Warrant]
For value received, the undersigned registered holder of the within
Call Warrant hereby sells, assigns and transfers unto ______ the _______ Call
Warrant(s) [Must be whole number] to purchase Certificates to which such Call
Warrant relates, and appoints Attorney to make such transfer on the books of the
Warrant Agent maintained for such purpose, with full power of substitution in
the premises.
Dated:
(Signature must conform in all respects to name of holder as specified
on the face of Warrant)
(Street Address)
(City State) (Zip Code)
Signed in the presence of:
B-2-13
EXHIBIT C
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated:
U.S. Bank Trust National Association,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
as Initial Purchaser
3 World Financial Center
New York, New York 10285
Xxxxxx ABS Corporation
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
In connection with our proposed purchase of $___________
aggregate principal amount of Call Warrants (the "Call Warrants") representing
an interest in the Corporate Backed Trust Certificates Series 2001-16 Trust (the
"Trust"), the investor on whose behalf the undersigned is executing this letter
(the "Purchaser") confirms that:
(iii) Reference is made to the Prospectus Supplement, dated April 27,
2001 (the "Prospectus Supplement"), with respect to the Certificates to which
the Call Warrants relate. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Prospectus Supplement.
The Purchaser has received a copy of the Prospectus Supplement and such other
information as the Purchaser deems necessary in order to make its investment
decision and the Purchaser has been provided the opportunity to ask questions
of, and receive answers from, the Depositor and the Underwriters, concerning the
terms and conditions of the offering described in the Prospectus Supplement. The
Purchaser has received and understands the above, and understands that
substantial risks are involved in an investment in the Call Warrants. The
Purchaser represents that in making its investment decision to acquire the Call
Warrants, the Purchaser has not relied on representations, warranties, opinions,
projections, financial or other information or analysis, if any, supplied to it
by any person, including you, the Depositor or the Trustee or any of your or
their affiliates, except as expressly contained in the Prospectus Supplement and
in the other written information, if any, discussed above. The Purchaser has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Call Warrants, and
the Purchaser is able to bear the substantial economic risks of such an
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investment. The Purchaser has relied upon its own tax, legal and financial
advisors in connection with its decision to purchase the Call Warrants.
(iv) The Purchaser is (A) a "Qualified Institutional Buyer" (as defined
in Rule 144A under the Securities Act of 1933, as amended (the "1933 Act")) and
has delivered to you a certificate substantially in the form attached hereto as
Annex I or Annex 2, as applicable and (B) acquiring the Call Warrants for its
own account or for the account of an investor of the type described in clause
(A) above as to each of which the Purchaser exercises sole investment
discretion. The Purchaser is purchasing the Call Warrants for investment
purposes and not with a view to, or for, the offer or sale in connection with, a
public distribution or in any other manner that would violate the 1933 Act or
the securities or blue sky laws of any state.
(v) The Purchaser understands that the Call Warrants have not been and
will not be registered under the 1933 Act or under the securities or blue sky
laws of any state, and that (i) if it decides to resell, pledge or otherwise
transfer any Call Warrant, such Call Warrant may be resold, pledged or
transferred without registration only to an entity that has delivered to the
Depositor and the Trustee a certification that it is a Qualified Institutional
Buyer that purchases (1) for its own account or (2) for the account of such a
Qualified Institutional Buyer, that is, in either case, aware that the resale,
pledge or transfer is being made in reliance on said Rule 144A and (ii) it will,
and each subsequent holder will be required to, notify any purchaser of any Call
Warrant from it of the resale restrictions referred to in clause (i) above.
(vi) The Purchaser understands that each of the Call Warrants will bear
a legend to the following effect, unless otherwise agreed by the Depositor and
the Trustee:
"THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN
EXEMPTION THEREFROM UNDER SUCH ACT. THIS CALL WARRANT
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH
THE CONDITIONS SPECIFIED IN THIS CALL WARRANT."
(vii) The Purchaser understands that no subsequent transfer of the Call
Warrants is permitted unless it causes its proposed transferee to provide to the
Depositor and the Initial Warrant Holder a letter substantially in the form of
Exhibit C to the Series Supplement, as applicable, or such other written
statement as the Depositor shall prescribe.
(viii) 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
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accordance with Section 5.04 of the Trust Agreement. The Purchaser understands
that any purported transfer of the Call Warrants (or any interest therein) in
contravention of any of the restrictions and conditions in the Trust Agreement,
as applicable, shall be a void, and the purported transferee in such transfer
shall not be recognized by the Trust or any other Person as a Warrantholder, as
the case may, be for any purpose.
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You and the Trustee are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
---------------------------------
Name:
Title:
[Medallion Stamp to be affixed here]
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