EXHIBIT 7
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES 2002-18 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
CORPORATE BACKED TRUST CERTIFICATES
Dated as of October 31, 2002
Table of Contents
Page
Section 1. Incorporation of Standard Terms .................................1
Section 2. Definitions. ....................................................1
Section 3. Designation of Trust and Certificates ...........................9
Section 4. Trust Certificates ..............................................12
Section 5. Distributions. ..................................................12
Section 6. Trustee's Fees. .................................................16
Section 7. Optional Call; Optional Exchange. .. ............................16
Section 8. Notices of Events of Default. ...................................20
Section 9. Miscellaneous. ..................................................20
Section 10. Governing Law ..................................................24
Section 11. Counterparts ...................................................24
Section 12. Termination of the Trust .......................................24
Section 13. Sale of Underlying Securities; Optional Exchange ...............24
Section 14. Amendments .....................................................24
Section 15. Voting of Underlying Securities, Modification of Indenture..... 25
Section 16. Additional Depositor Representation ............................26
SCHEDULE I SERIES 2002-18 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A-1 FORM OF TRUST CERTIFICATE CLASS A-1
EXHIBIT A-2A FORM OF TRUST CERTIFICATE CLASS A-2A
EXHIBIT A-2B FORM OF TRUST CERTIFICATE CLASS A-2B
EXHIBIT B FORM OF WARRANT AGENT AGREEMENT
EXHIBIT C FORM OF INVESTMENT LETTER
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SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES 2002-18 TRUST
SERIES SUPPLEMENT, Xxxxxxx-Xxxxx Squibb Debenture-Backed Series
2002-18, dated as of October 31, 2002 (the "Series Supplement"), by and between
XXXXXX ABS CORPORATION, as Depositor (the "Depositor"), and U.S. BANK TRUST
NATIONAL ASSOCIATION, as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated
herein (the "Trust") by executing and delivering this Series Supplement,
which shall incorporate the terms of the Standard Terms for Trust Agreements,
dated as of January 16, 2001 (the "Standard Terms" and, together with this
Series Supplement, the "Trust Agreement"), by and between the Depositor and
the Trustee, as modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit into the Trust the
Underlying Securities set forth on Schedule I attached hereto (the
"Underlying Securities Schedule") the general terms of which are described in
the Prospectus Supplement under the heading "Description of the Deposited
Assets - Underlying Securities;"
WHEREAS, in connection with the creation of the Trust and the
deposit therein of the Underlying Securities, it is desired to provide for
the issuance of trust certificates evidencing undivided interests in the
Trust and call warrants related thereto; and
WHEREAS, the Trustee has joined in the execution of the Standard
Terms and this Series Supplement to evidence the acceptance by the Trustee of
the Trust.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee as follows:
Section 1. Incorporation of Standard Terms. Except as otherwise provided
herein, all of the provisions of the Standard Terms are hereby incorporated
herein by reference in their entirety, and this Series Supplement and the
Standard Terms shall form a single agreement between the parties. In the event
of any inconsistency between the provisions of this Series Supplement and the
provisions of the Standard Terms, the provisions of this Series Supplement will
control with respect to the Xxxxxxx-Xxxxx Squibb Debenture-Backed Series
2002-18 Certificates and the transactions described herein.
Section 2. Definitions.
(a) Except as otherwise specified herein or as the context may
otherwise require, the following terms shall have the respective meanings set
forth below for all purposes under this Series Supplement. (Section 2(b)
below sets forth terms listed in the Standard Terms which are
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not applicable to this Series.) Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Standard Terms.
"Accredited Investor" shall mean a Person that qualifies as an
"accredited investor" within the meaning of Rule 501(a) under the Securities
Act.
"Available Funds" shall have the meaning specified in the Standard
Terms, except that proceeds of any redemption of the Underlying Securities
shall be included in Available Funds.
"Business Day" shall mean any day other than (i) Saturday and
Sunday or (ii) a day on which banking institutions in New York City, New York
are authorized or obligated by law or executive order to be closed for
business or (iii) a day that is not a business day for the purposes of the
Indenture.
"Calculation Agent" shall mean Xxxxxx ABS Corporation or such
affiliate thereof as shall be designated by Xxxxxx ABS Corporation.
"Call Date" shall mean any Business Day (i) on or after October 31,
2007, (ii) after the Underlying Securities Issuer announces that it will
redeem (in whole or in part) or otherwise make an unscheduled payment on the
Underlying Securities, (iii) after the Trustee notifies the
Certificateholders of any proposed sale of the Underlying Securities pursuant
to the provisions of this Series Supplement or (iv) on which a tender offer
for some or all of the Underlying Securities is consummated.
"Call Notice" shall have the meaning specified in Section 1.1 of
the Warrant Agent Agreement.
"Call Price" shall mean, for each related Call Date, (i) in the
case of the Class A-1 Certificates, 100% of the outstanding Certificate
Principal Balance of the Class A-1 Certificates being purchased pursuant to
the exercise of the Call Warrants, plus any accrued and unpaid interest on
such amount to but excluding the Call Date and (ii) in the case of the Class
A-2 Certificates, the present value of all amounts that would otherwise have
been payable on the Class A-2 Certificates being purchased pursuant to the
exercise of the Call Warrants for the period from the related Call Date to
the Final Scheduled Distribution Date using a discount rate of 8.125% per
annum, assuming no delinquencies, deferrals, redemptions or prepayments on
the Underlying Securities shall occur after the related Call Date.
"Call Warrants" shall have the meaning specified in Section 3
hereof.
"Called Certificates" shall have the meaning specified in Section
1.1 (b) of the Warrant Agent Agreement.
"Certificate Account" shall have the meaning specified in the
Standard Terms.
"Certificates" shall have the meaning specified in Section 3 hereof.
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"Class A-1 Allocation" shall mean the sum of the present values
(discounted at the rate of 6.25% per annum) of (i) any unpaid interest due or
to become due on the Class A-1 Certificates and (ii) the outstanding
Certificate Principal Balance of the Class A-1 Certificates (in each case
assuming that the Class A-1 Certificates were paid when due and were not
redeemed or prepaid prior to their stated maturity).
"Class A-1 Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-1, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain
distributions to be made by the Trust and having the characteristics
described herein and in the Certificates.
"Class A-2 Allocation" shall mean the present value (discounted at
the rate of 6.25% per annum) of any unpaid amounts due or to become due on
the outstanding notional amount of the Class A-2 Certificates (assuming that
the Class A-2 Certificates were paid when due and were not redeemed or
prepaid prior to their stated maturity); provided that any amount to be
distributed to the Class A-2 Certificates shall be distributed as between the
Class A-2A Certificates and the Class A-2B Certificates, pro rata in the
proportion of the ratio of the Class A-2A Allocation to the Class A-2B
Allocation.
"Class A-2A Allocation" shall mean the present value (discounted at
the rate of 6.25% per annum) of any unpaid amounts due or to become due on
the Class A-2A Certificates (assuming that the Class A-2A Certificates were
paid when due and were not redeemed prior to their stated maturity).
"Class A-2B Allocation" shall mean the present value (discounted at
the rate of 6.25% per annum) of any unpaid amounts due or to become due on
the Class A-2B Certificates (assuming that the Class A-2B Certificates were
paid when due and were not redeemed prior to their stated maturity).
"Class A-2 Certificates" shall mean the Class A-2A Certificates and
the Class A-2B Certificates.
"Class A-2A Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-2A, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain
distributions to be made by the Trust on and prior to the Distribution Date
in August 2042 and having the characteristics described herein and in the
Certificates.
"Class A-2B Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-2B, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain
distributions to be made by the Trust subsequent to the Distribution Date in
August 2042 and having the characteristics described herein and in the
Certificates.
"Closing Date" shall mean October 31, 2002.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Collection Period" shall mean, (i) with respect to each August
Distribution Date, the period beginning on the day after the February
Distribution Date of such year and ending on such August Distribution Date,
inclusive and, (ii) with respect to each February Distribution Date, the
period beginning on the day after the August Distribution Date of the prior
year and ending on such February Distribution Date, inclusive; provided,
however, that clauses (i) and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank Trust
National Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
"Depository" shall mean The Depository Trust Company, its nominees
and their respective successors.
"Distribution Date" shall mean February 1st and August 1st of each
year (or if such date is not a Business Day, the next succeeding Business
Day), commencing on February 1, 2003, and ending on the earlier of the Final
Scheduled Distribution Date and any date on which all Underlying Securities
are redeemed pursuant to the Indenture or prepaid or liquidated in whole for
any reason other than at their maturity.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall mean (i) a default in the payment of any
interest on any Underlying Security after the same becomes due and payable
(subject to any applicable grace period), (ii) a default in the payment of
the principal of or any installment of principal of any Underlying Security
when the same becomes due and payable, and (iii) any other event specified as
an "Event of Default" in the Indenture.
"Exchange Act" shall mean the Securities and Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Final Scheduled Distribution Date" shall mean (i) in the case of
the Class A-2A Certificates, the Distribution Date in August 2042 and (ii) in
the Case of the Class A-1 Certificates and the Class A-2B Certificates, the
Distribution Date in August 2097, or, in each case, if such day is not a
Business Day, the next succeeding Business Day.
"Indenture" shall mean the indenture among the Underlying
Securities Issuer and the Underlying Securities Trustee, pursuant to which
the Underlying Securities were issued.
"Interest Accrual Period" shall mean for any Distribution Date, the
period from and including the preceding Distribution Date (or in the case of
the first Interest Accrual Period, from and including October 31, 2002) to
but excluding the current Distribution Date.
"Liquidation Price" shall mean the price at which the Trustee sells
the Underlying Securities.
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"Liquidation Proceeds" shall have the meaning specified in the
Standard Terms.
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Optional Call" shall mean the call of the Certificates by the
Warrant Holder, in whole or in part, resulting from the exercise of Call
Warrants by the Warrant Holder, pursuant to Section 7(d) hereof.
"Optional Exchange" shall mean the exchange of the Certificates by
the Trust for the Underlying Securities pursuant to Section 7(a) hereof.
"Optional Exchange Date" shall mean any date on which Underlying
Securities subject to Optional Exchange are distributed to a
Certificateholder.
"Ordinary Expenses" shall mean the Trustee's ordinary expenses and
overhead in connection with its services as Trustee, including the items
referred to in the definition of Ordinary Expenses in the Standard Terms.
"Plan" means (a) an employee benefit plan (as defined in Section
3(3) of ERISA), (b) a plan described in Section 4975(e)(1) of the Code or (c)
any entity whose underlying assets are treated as assets of any such plan by
reason of such plan's investment in the entity.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated
October 23, 2002, relating to the Certificates.
"QIB" shall have the meaning set forth in Section 3(e) hereof.
"Rating Agency" shall mean Moody's and S&P.
"Record Date" shall mean, with respect to each Distribution Date,
the day immediately preceding the related Distribution Date.
"Required Percentage-Amendment" shall be 66-2/3% of the aggregate
Voting Rights, unless the subject amendment requires the vote of holders of
only one class of Certificates pursuant to the Standard Terms, in which case
66-2/3% of the Voting Rights of such Class.
"Required Percentage-Direction of Trustee" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Remedies" shall be 66-2/3% of the aggregate
Voting Rights.
"Required Percentage-Removal" shall be 66-2/3% of the aggregate
Voting Rights.
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"Required Rating" shall mean, in the case of Moody's, the rating
assigned to the Underlying Securities by Moody's as of the Closing Date, and,
in the case of S&P, the rating assigned to the Underlying Securities by S&P
as of the Closing Date.
"Resale Restriction Termination Date" shall have the meaning set
forth in Section 3(e) hereof.
"Rule 144A" shall have the meaning set forth in Section 3(e) hereof.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"Securities Act" shall mean the United States Securities Act of
1933, as amended.
"Series" shall mean Xxxxxxx-Xxxxx Squibb Debenture-Backed Series
2002-18.
"Special Distribution Date" shall have the meaning specified in
Section 5 hereof.
"Tax Event" means that the Underlying Securities Issuer shall have
received an opinion of nationally recognized independent tax counsel to the
effect that, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective amendment, clarification or change) in
any law, or any regulation thereunder, of the United States, (b) any judicial
decision, official administrative pronouncement, ruling, regulatory
procedure, regulation, notice or announcement, including any notice or
announcement of intent to adopt or promulgate any ruling, regulatory
procedure or regulation (any of the foregoing, an `Administrative or Judicial
Action'), or (c) any amendment to, clarification of or change in any official
position with respect to, or any interpretation of, any Administrative or
Judicial Action or a law or regulation of the United States that differs from
the theretofore generally accepted position or interpretation, in each case,
occurring on or after August 12, 1997, there is more than insubstantial risk
that interest paid by the Underlying Securities Issuer on the Underlying
Securities is not, or will not be, deductible, in whole or in part, by the
Underlying Securities Issuer for United States federal income tax purposes.
"Trustee Fee" shall mean the amount paid to the Trustee by the
Depositor on the Closing Date.
"Trust Property" shall mean the Underlying Securities described on
Schedule I hereto, the Certificate Account and any additional Underlying
Securities sold to the Trust pursuant to Section 3(d) hereof.
"Underlying Securities" shall mean $25,180,000 aggregate principal
amount of 6.875% Notes due August 1, 2097, issued by the Underlying
Securities Issuer, as set forth in Schedule I attached hereto (subject to
Section 3(d) hereof).
"Underlying Securities Issuer" shall mean Xxxxxxx-Xxxxx Squibb
Company.
"Underlying Securities Trustee" shall mean The Chase Manhattan Bank
(National Association).
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"Underwriters" shall mean Xxxxxx Brothers Inc.
"Voting Rights" shall be allocated between the holders of the
Class A-1 Certificates and the holders of the Class A-2 Certificates, pro
rata, in proportion to the ratio of the Class A-1 Allocation to the
Class A-2 Allocation. The Class A-1 Voting Rights will be allocated among
Class A-1 Certificateholders in proportion to the then unpaid Certificate
Principal Balances of their respective Certificates. The Class A-2 Voting
Rights will be allocated between the Class A-2A Certificateholders and the
Class A-2B Certificateholders, pro rata, in proportion to the ratio of the
Class A-2A Allocation to the Class A-2B Allocation. The Class A-2A Voting
Rights will be allocated among Class A-2A Certificateholders in proportion to
the then outstanding notional amounts of their respective Class A-2A
Certificates and the A-2B Voting Rights will be allocated among Class A-2B
Certificateholders in proportion to the then outstanding notional amounts of
their respective Class A-2B Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust National
Association.
"Warrant Agent Agreement" shall mean that certain Warrant Agent
Agreement, dated as of the date hereof, between the Depositor and U.S. Bank
Trust National Association, as Warrant Agent and as Trustee, as the same may
be amended from time to time.
"Warrant Holder" shall mean the holder of a Call Warrant.
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
"Cut-off Date"
"Eligible Expense"
"Eligible Investment"
"Exchange Rate Agent"
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"Fixed Pass-Through Rate"
"Floating Pass-Through Rate"
"Guaranteed Investment Contract"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
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"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Corporate Backed Trust Certificates,
Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18 Trust." The
Certificates evidencing certain undivided ownership interests therein shall
be known as "Corporate Backed Trust Certificates, Xxxxxxx-Xxxxx Squibb
Debenture-Backed Series 2002-18." The Certificates shall consist of the
Class A-1 Certificates and the Class A-2 Certificates (together, the
"Certificates"). The Trust is also issuing call warrants with respect to the
Certificates ("Call Warrants").
(a) The Class A-1 Certificates shall be held through the Depository in
book-entry form and shall be substantially in the form attached hereto as
Exhibit A-1. The Class A-2 Certificates shall initially be held through the
Depository in book-entry form and, as set forth in Section 3(e) below, shall
be held in physical form or through the Depository in book-entry form and
shall be substantially in the forms attached hereto as Exhibits A-2A and
A-2B. The Class A-1 Certificates shall be issued in denominations of $25.
The Class A-2 Certificates shall be issued in minimum notional denominations
of $100,000 and integral multiples of $1 in excess thereof; provided,
however, that on any Call Date on which a Warrant Holder shall concurrently
exchange Called Certificates for a distribution of Underlying Securities in
accordance with the provisions of Section 7 hereof, Called Certificates may
be issued in other denominations. Except as provided in the Standard Terms
and in paragraph (d) in this Section, the Trust shall not issue additional
Certificates or additional Call Warrants or incur any indebtedness.
(b) The Class A-1 Certificates consist of 1,007,200 Certificates having
an initial aggregate certificate principal amount (the "Certificate Principal
Balance") of $25,180,000. The Class A-2 Certificates are interest-only
Certificates. Both the Class A-2A Certificates and the Class A-2B
Certificates shall have an initial aggregate notional amount equal to the
initial Certificate Principal Balance of the Class A-1 Certificates.
(c) The holders of the Class A-1 Certificates will be entitled to
receive on each Distribution Date the interest, if any, received on the
Underlying Securities, to the extent necessary to pay interest at a rate of
6.25% per annum on the outstanding Certificate Principal Balance of the
Class A-1 Certificates. The holders of the Class A-2A Certificates will be
entitled to receive on each Distribution Date occurring on and prior to the
Distribution Date in August 2042, the interest, if any, received on the
Underlying Securities, to the extent necessary to pay interest at a rate of
0.625% per annum on the outstanding notional amount of the Class A-2A
Certificates. The holders of the Class A-2B Certificates will be entitled to
receive on each Distribution Date subsequent to the Distribution Date in
August 2042, the interest, if any, received on the Underlying Securities, to
the extent necessary to pay interest at a rate of 0.625% per annum on the
outstanding notional amount of the Class A-2B Certificates. On the
Distribution Date occurring in February 2003, the Trustee shall cause the
Trust to pay to the Depositor the amount of interest accrued and paid on the
Underlying Securities from August 1, 2002, to but not including the Closing
Date; provided, however, that in the event an Optional Exchange Date shall
occur prior to February 1, 2003, a pro rata portion of such amount shall be
paid to the Depositor on the Optional Exchange Date in accordance with the
provisions of Section 7(b)(ix) hereof. If the Depositor is not paid any such
amount on such date, it shall have a claim for such amount. If Available
Funds are insufficient to pay such amount, the Trustee will
9
pay the Depositor its pro rata share, based on the ratio the amount owed to the
Depositor bears to all amounts owed on the Certificates in respect of accrued
interest, of any proceeds from the recovery on the Underlying Securities.
(d) The Depositor may sell to the Trustee additional Underlying
Securities on any date hereafter upon at least 3 Business Days' notice to the
Trustee (or such shorter period as shall be mutually satisfactory to the
Depositor and the Trustee) and upon (i) satisfaction of the Rating Agency
Condition and (ii) delivery of an Opinion of Counsel to the effect that the
sale of such additional Underlying Securities will not cause the Trust to be
taxed as an association or publicly traded partnership taxable as a
corporation for federal income tax purposes. Each condition to be satisfied
with respect to a sale of Underlying Securities on or prior to the Closing
Date shall be satisfied with respect to a sale of additional Underlying
Securities no later than the date of sale thereof, each representation and
warranty set forth in the Standard Terms to be made on the Closing Date shall
be made on such date of sale, and from and after such date of sale, all
Underlying Securities held by the Trustee shall be held on the same terms and
conditions. Upon such sale to the Trustee, the Trustee shall deposit such
additional Underlying Securities in the Certificate Account, and shall
authenticate and deliver to the Depositor, on its order, Class A-1
Certificates in a Certificate Principal Balance, and Class A-2A Certificates
and Class A-2B Certificates in a notional amount, equal to the principal
amount of such additional Underlying Securities, and the Call Warrants
related thereto. Any such additional Class A-1 Certificates, Class A-2A
Certificates and Class A-2B Certificates authenticated and delivered shall
have the same terms and rank pari passu with the corresponding classes of
Certificates previously issued in accordance with this Series Supplement.
(e) No Class A-2 Certificate may be offered, resold, assigned or
otherwise transferred (including by pledge or hypothecation) at any time
prior to (x) the date which is two years or such shorter period of time as
permitted by Rule 144(k) under the Securities Act after the later of the
original issue date of such Class A-2 Certificates and the last date on which
the Depositor or any "affiliate" (as defined in Rule 144 under the Securities
Act) of the Depositor was the owner of such Class A-2 Certificates (or any
predecessor thereto) or (y) such later date, if any, as may be required by a
change in applicable securities laws (the "Resale Restriction Termination
Date") unless such offer, resale, assignment or transfer is (i) to the Trust,
(ii) pursuant to an effective registration statement under the Securities
Act, (iii) to a qualified institutional buyer (a "QIB"), as such term is
defined in Rule 144A promulgated under the Securities Act ("Rule 144A"), in
accordance with Rule 144A or (iv) pursuant to another available exemption
from registration provided under the Securities Act (including transfers to
Accredited Investors), and, in each of cases (i) through (iv), in accordance
with any applicable securities laws of any state of the United States and
other jurisdictions. Prior to any offer, resale, assignment or transfer of
any Class A-2 Certificates in the manner described in clause (iii) above, the
prospective transferee and the prospective transferor shall be required to
deliver to the Trustee an executed copy of an Investment Letter with respect
to the Class A-2 Certificates to be transferred substantially in the form of
Exhibit C hereto and in the event the resale, assignment or transfer shall
involve Class A-2 Certificates then being held in physical form, such A-2
Certificates shall be delivered to the Trustee for cancellation and the
Trustee shall instruct the Depository to increase the aggregate notional
amount of the Class A-2 Certificates held in book-entry form by an amount
equal to the aggregate notional amount of Class A-2 Certificates so resold,
assigned or transferred and to issue a beneficial interest in such global
Class A-2 Certificates to such
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transferee. Prior to any offer, resale, assignment or transfer of any Class A-2
Certificates in the manner described in clause (iv) above, the prospective
transferee and the prospective transferor shall be required to deliver to the
Trustee documentation certifying that the offer, resale, assignment or transfer
complies with the provisions of said clause (iv) and, in the event any such
Class A-2 Certificate shall then be held in book-entry form and such resale,
assignment or transfer shall be to an Accredited Investor that is not a QIB,
the Trustee shall instruct the Depository to decrease the aggregate notional
amount of the Class A-2 Certificates held in book-entry form and the Trustee
shall authenticate and deliver one or more Class A-2 Certificates in physical
form in an aggregate notional amount equal to the amount of Class A-2
Certificates resold, assigned or transferred. In addition to the foregoing,
each prospective transferee of any Class A-2 Certificates in the manner
contemplated by clause (iii) above shall acknowledge, represent and agree as
follows:
(1) The transferee (A) is an Accredited Investor and, if the Class A-2
Certificates are to be purchased for one or more accounts
("investor accounts") for which it is acting as fiduciary or agent,
each such investor account is an Accredited Investor on a like
basis or (B) (x) is a QIB, (y) is aware that the sale to it is
being made in reliance on Rule 144A and (z) is acquiring such
Class A-2 Certificates for its own account or for the account of a
QIB.
(2) The transferee understands that the Class A-2 Certificates are
being offered in a transaction not involving any public offering in
the United States within the meaning of the Securities Act, and
that the Class A-2 Certificates have not been and will not be
registered under the Securities Act.
(3) The transferee agrees that (A) if in the future it decides to
offer, resell, pledge or otherwise transfer the Class A-2
Certificates prior to the Resale Restriction Termination Date, such
Class A-2 Certificates shall only be offered, resold, assigned or
otherwise transferred (i) to the Trust, (ii) pursuant to an
effective registration statement under the Securities Act, (iii) to
a QIB, in accordance with Rule 144A or (iv) pursuant to another
available exemption from registration provided under the Securities
Act (including any transfer to an Accredited Investor), and, in
each of cases (i) through (iv), in accordance with any applicable
securities laws of any state of the United States and other
jurisdictions and (B) the transferee will, and each subsequent
holder is required to, notify any subsequent purchaser of such
Class A-2 Certificates from it of the resale restrictions referred
to in clause (A) above.
(f) The Class A-2 Certificates will, unless otherwise agreed by the
Depositor and the Trustee, bear a legend substantially to the following
effect:
"THIS CLASS A-2 CERTIFICATE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION
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THEREFROM UNDER SUCH ACT. THE CLASS A-2 CERTIFICATE REPRESENTED
HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE
SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2 CERTIFICATE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS CLASS A--2 CERTIFICATE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER."
Section 4. Trust Certificates. The Trustee hereby acknowledges
receipt, on or prior to the Closing Date, of:
(a) the Underlying Securities set forth on Schedule I hereto; and
(b) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Standard Terms.
Section 5. Distributions.
(a) Except as otherwise provided in Sections 3(c), 5(c), 5(d) and 5(i),
on each applicable Distribution Date (or such later date as specified in
Section 9(f)), the Trustee shall apply Available Funds in the Certificate
Account as follows:
(i) The Trustee will pay the interest portion of Available Funds:
(1) on each Distribution Date occurring on or prior to the
Distribution Date in August 2042:
(A) first, to the Trustee, reimbursement for any
extraordinary expenses incurred by the Trustee pursuant
to the instructions of all of the certificateholders; and
(B) second, to the holders of the Class A-1 Certificates
and the holders of the Class A-2A Certificates, interest
accrued and unpaid on each such class, pro rata in
proportion to their entitlements thereto.
(2) on each Distribution Date occurring after the
Distribution Date in August 2042:
(A) first, to the Trustee, reimbursement for any
extraordinary expenses incurred by the Trustee pursuant
to the instructions of all of the certificateholders; and
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(B) second, to the holders of the Class A-1 Certificates
and the holders of the Class A-2B Certificates, interest
accrued and unpaid on each such class, pro rata in
proportion to their entitlements thereto.
(ii) the Trustee will pay the principal portion of Available Funds:
(1) first, to the Trustee, as reimbursement for any remaining
Extraordinary Trust Expenses incurred by the Trustee in accordance
with Section 6(b) below and approved by 100% of the
Certificateholders; and
(2) second, to the holders of the Class A-1 Certificates, the
Certificate Principal Balance of the Class A-1 Certificates (the
Class A-2 Certificates are not entitled to distributions of
principal).
(iii)any Available Funds remaining in the Certificate Account after
the payments set forth in clauses 5(a)(i) and 5(a)(ii) above shall be
paid to the Trustee as reasonable compensation for services rendered to
the Depositor, up to $1,000.
(iv) the Trustee will pay any Available Funds remaining in the
Certificate Account after the distributions in clauses 5(a)(i) through
5(a)(iii) above to the holders of the Class A-1 Certificates and Class
A-2 Certificates pro rata in proportion to their original Certificate
Principal Balances or notional amount, as applicable; provided that any
amount to be distributed to the Class A-2 Certificates shall be
distributed as between the Class A-2A Certificates and the Class A-2B
Certificates, pro rata in the proportion of the ratio of the Class A-2A
Allocation to the Class A-2B Allocation.
Any portion of the Available Funds (i) that does not constitute principal of,
or interest on, the Underlying Securities, (ii) that is not received in
connection with a redemption, prepayment or liquidation of the Underlying
Securities and (iii) for which allocation by the Trustee is not otherwise
contemplated by this Series Supplement, shall be remitted by the Trustee to
the Depositor.
(b) [Reserved].
(c) Notwithstanding the foregoing, if the Underlying Securities are
redeemed (including as a result of an optional redemption), prepaid or
liquidated in whole or in part for any reason other than due to the
occurrence of an Underlying Securities event of default, the cessation of the
Underlying Securities Issuer to file periodic reports as required by the
Exchange Act or at their maturity, the Trustee shall apply Available Funds in
the manner described in Section 5(h) in the following order of priority:
(i) first, to the Trustee, as reimbursement for any Extraordinary
Trust Expenses incurred by the Trustee in accordance with
Section 6(b) below and approved by 100% of the
Certificateholders;
(ii) second, to the holders of the Class A-1 Certificates, an amount
equal to the principal amount of Underlying Securities so
redeemed, prepaid or
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liquidated plus accrued and unpaid interest on the amount of
Class A-1 Certificates so redeemed;
(iii) third, to the holders of the Class A-2 Certificates, an amount
not to exceed the present value of all amounts that would
otherwise have been payable on the Class A-2 Certificates for
the period from the date of such redemption or prepayment to
the Final Scheduled Distribution Date using a discount rate of
6.25% per annum, assuming no delinquencies, deferrals,
redemptions or prepayments on the Underlying Securities, which
amount shall be distributed, as between the Class A-2A
Certificates and the Class A-2B Certificates, pro rata in the
proportion of the ratio of the Class A-2A Allocation to the
Class A-2B Allocation;
(iv) fourth, to the Trustee, as reasonable compensation for
services rendered to the Depositor, any remainder up to
$1,000; and
(v) fifth, any remainder to the holders of the Class A-1
Certificates and the Class A-2 Certificates pro rata in
proportion to the ratio of the Class A-1 Allocation to the
Class A-2 Allocation; provided that any amount to be
distributed to the Class A-2 Certificates shall be distributed
as between the Class A-2A Certificates and the Class A-2B
Certificates, pro rata in the proportion of the ratio of the
Class A-2A Allocation to the Class A-2B Allocation.
(d) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part due to the occurrence of
an Underlying Securities event of default, the Trustee shall apply Available
Funds to the holders of the Class A-1 Certificates and the holders of the
Class A-2 Certificates in accordance with the ratio of the Class A-1
Allocation to the Class A-2 Allocation and the distribution to the Class A-2
Certificates shall further be determined as between the Class A-2A
Certificates and the Class A-2B Certificates, pro rata in the proportion of
the ratio of the Class A-2A Allocation to the Class A-2B Allocation.
(e) Unless otherwise instructed by holders of Certificates representing
a majority of the Voting Rights, thirty (30) days after giving notice
pursuant to Section 8 hereof, the Trustee shall sell the Underlying
Securities pursuant to Section 13 hereof and deposit the Liquidation
Proceeds, if any, into the Certificate Account for distribution not later
than two (2) Business Days after the receipt of immediately available funds
in accordance with Section 5(d) hereof, provided, however, that if any
Warrant Holder designates any day on or prior to the proposed sale date as a
Call Date and Optional Exchange Date pursuant to Section 7, the portion of
Underlying Securities related to such Optional Exchange shall not be sold but
shall be distributed to the Warrant Holder pursuant to Section 7 and the
Warrant Agent Agreement.
(f) If the Trustee receives non-cash property in respect of the
Underlying Securities as a result of a payment default on the Underlying
Securities (including from the sale thereof), the Trustee will promptly give
notice to the Depository, or for any Certificates which are not then held by
DTC or any other depository, directly to the registered holders of the
Certificates then outstanding and unpaid and to the Warrant Agent. Such
notice shall state that the Trustee
14
shall and the Trustee shall, not later than 30 days after the receipt of such
property, allocate and distribute such property to the holders of Class A-1
Certificates and Class A-2 Certificates then outstanding and unpaid (after
deducting the costs incurred in connection therewith) in accordance with
Section 5(d) hereof. Property other than cash will be liquidated by the
Trustee, and the proceeds thereof distributed in cash, only to the extent
necessary to avoid distribution of fractional securities to Certificateholders.
In-kind distribution of such property to Certificateholders, based on the
market value of such property as of the date of distribution to
Certificateholders, will be deemed to reduce the Certificate Principal Balance
of the Class A-1 Certificates on a dollar-for-dollar basis. The outstanding
notional amounts of the Class A-2A Certificates and Class A-2B Certificates
shall be reduced, pro rata among all Class A-2A Certificateholders and Class
A-2B Certificateholders, by an amount equal to the amount by which the
Certificate Principal Balance of the Class A-1 Certificates is reduced.
(g) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any scheduled interest or principal payments on any
class of Certificates on any Distribution Date, any shortfall will be carried
over and will be distributed on the next Distribution Date (or date referred
to in Section 5(h) hereof) on which sufficient funds are available to pay
such shortfall.
(h) If a payment with respect to the Underlying Securities is made to
the Trustee (i) after the payment date of the Underlying Securities on which
such payment was due or (ii) in connection with redemption, prepayment or
liquidation, in whole or in part, of the Underlying Securities for any reason
other than due to the occurrence of an Event of Default, the cessation of the
Underlying Securities Issuer to file periodic reports as required by the
Exchange Act or at their maturity, the Trustee will distribute any such
amounts received in accordance with Section 5(c) on the next occurring
Business Day (a "Special Distribution Date") as if the funds had constituted
Available Funds on the Distribution Date immediately preceding such Special
Distribution Date; provided, however, that the Record Date for such Special
Distribution Date shall be one Business Day prior to the day on which the
related payment was received with respect to the Underlying Securities.
(i) Notwithstanding Section 3.12 of the Standard Terms, if the
Underlying Securities Issuer ceases to file periodic reports as required
under the Exchange Act, the Depositor shall within a reasonable time instruct
the Trustee to (i) notify the Warrant Agent that the Underlying Securities
are proposed to be sold and that any Call Warrants and related Optional
Exchange rights must be exercised no later than the date specified in the
notice (which shall be not less than ten Business Days after the date of such
notice) and (ii) to the extent that the Warrant Holders fail to exercise
their Call Warrants and related Optional Exchange rights on or prior to such
date, to sell the Underlying Securities and distribute the proceeds of such
sale to the Certificateholders in accordance with the following order of
priority: first, to the Trustee, as reimbursement for any Extraordinary Trust
Expenses incurred by the Trustee in accordance with Section 6(b) below and
approved by 100% of the Certificateholders; and second, any remainder to the
holders of the Class A-1 Certificates and the Class A-2 Certificates pro rata
in proportion to the ratio of the Class A-1 Allocation to the Class A-2
Allocation, as determined by the Calculation Agent; provided, however, the
Depositor shall not instruct the Trustee to sell the Underlying Securities
(or provide a notice of such instruction to the Warrant Agent) pursuant to
this clause unless the Underlying Securities Issuer has either (x) stated in
writing that it intends permanently to cease
15
filing reports required under the Exchange Act or (y) failed to file any
required reports for one full calendar year; provided, further, however, that
any amount distributable to the Class A-2 Certificateholders in accordance with
this Section shall be allocated as between the Class A-2A Certificates and the
Class A-2B Certificates, on a pro rata basis, in the proportion of the ratio of
the Class A-2A Allocation to the Class A-2B Allocation.
(j) On any date on which Underlying Securities are redeemed, prepaid or
liquidated for any reason, the aggregate outstanding notional amount of the
Class A-2 Certificates shall be reduced by an amount equal to the principal
amount of the Underlying Securities so redeemed, prepaid or liquidated, the
reduction to be allocated pro rata among all Class A-2 Certificates.
Section 6. Trustee's Fees.
(a) As compensation for its services hereunder, the Trustee shall be
entitled to the Trustee Fee and any amounts payable under clauses 5(a)(iii)
and 5(b)(iv) above. The Trustee Fee shall be paid by the Depositor and not
from Trust Property. The Trustee shall bear all Ordinary Expenses. Failure
by the Depositor to pay such amount shall not entitle the Trustee to any
payment or reimbursement from the Trust, nor shall such failure release the
Trustee from the duties it is required to perform under the Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust Property
unless all the holders of the Class A-1 Certificates and Class A-2
Certificates then outstanding have directed the Trustee to incur such
Extraordinary Expenses. The Trustee may incur other Extraordinary Expenses
if any lesser percentage of the Certificateholders requesting such action
pursuant hereto reimburse the Trustee for the cost thereof from their own
funds in advance. If Extraordinary Expenses are not approved unanimously as
set forth in the first sentence of this Section 6(b), such Extraordinary
Expenses shall not be an obligation of the Trust, and the Trustee shall not
file any claim against the Trust therefor notwithstanding failure of
Certificateholders to reimburse the Trustee.
Section 7. Optional Call; Optional Exchange.
(a) On (A) any Distribution Date, (B) any date on which a tender offer
for some or all of the Underlying Securities is consummated or (C) any date
on which the Underlying Securities are to be redeemed by the Underlying
Securities Issuer, any holder of Class A-1 Certificates, Class A-2A
Certificates, Class A-2B Certificates and the related Call Warrants, if Call
Warrants related to such Certificates are outstanding, may exchange such
Certificates and, if applicable, Call Warrants, for a distribution of
Underlying Securities representing the same percentage of the Underlying
Securities as such Certificates represent of all outstanding Certificates.
On any Call Date, any Warrant Holder may exchange Called Certificates for a
distribution of Underlying Securities representing the same percentage of
Underlying Securities as such Called Certificates represent of all
outstanding Certificates; provided that any such exchange shall either
(x) result from an exercise of all Call Warrants owned by such Warrant Holder
or (y) occur on a Call Date on which such Warrant Holder, alone or together
with one or more other Warrant Holders, shall exchange Called Certificates
relating to Underlying Securities having an aggregate principal amount equal
to or in excess of the product of (i) 0.1 and (ii) the aggregate principal
amount of the Underlying Securities deposited into the Trust on the Closing
Date.
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(b) The following conditions shall apply to any Optional Exchange.
(i) A notice specifying the number of Certificates being
surrendered and the Optional Exchange Date shall be delivered to the
Trustee no less than 5 days (or such shorter period acceptable to the
Trustee) but not more than 30 days before the Optional Exchange Date;
provided that for an Optional Exchange to occur on a Call Date, unless
otherwise specified therein, the Call Notice shall be deemed to be the
notice required hereunder.
(ii) Certificates and, if applicable, the Call Warrants, shall be
surrendered to the Trustee no later than 10:00 a.m. (New York City time)
on the Optional Exchange Date; provided that for an Optional Exchange to
occur on a Call Date, payment of the Call Price to the Warrant Agent
pursuant to Section 1.1(a)(iii) of the Warrant Agent Agreement shall
satisfy the requirement to surrender Certificates.
(iii) Class A-1 Certificates, Class A-2A Certificates and Class A-2B
Certificates representing a like percentage of all Class A-1
Certificates, Class A-2A Certificates and Class A-2B Certificates shall
be surrendered.
(iv) The Trustee shall have received an opinion of counsel stating
that the Optional Exchange would not cause the Trust to be treated as an
association or publicly traded partnership taxable as a corporation for
federal income tax purposes.
(v) If the Certificateholder is the Depositor or any Affiliate of
the Depositor, (1) the Trustee shall have received a certification from
the Certificateholder that any Certificates being surrendered have been
held for at least six months, and (2) the Certificates being surrendered
may represent no more than 5% (or 25% in the case of Certificates
acquired by the Underwriters but never distributed to investors) of the
then outstanding Certificates.
(vi) The Trustee shall not be obligated to determine whether an
Optional Exchange complies with the applicable provisions for exemption
under Rule 3a-7 of the Investment Company Act of 1940, as amended, or
the rules or regulations promulgated thereunder.
(vii) The provisions of Section 4.07 of the Standard Terms shall not
apply to an Optional Exchange pursuant to this Section 7(b). This
Section 7(b) shall not provide any person with a lien against, an
interest in or a right to specific performance with respect to the
Underlying Securities; provided that satisfaction of the conditions set
forth in this Section 7(b) shall entitle the Certificateholder or
Warrant Holder, as applicable, to a distribution thereof.
(viii) The aggregate principal amount of Certificates exchanged
in connection with any Optional Exchange pursuant to this Section shall
be in an amount that will entitle the Certificateholders thereof to
Underlying Securities in an even multiple of the minimum denomination of
such Underlying Securities.
17
(ix) In the event such Optional Exchange shall occur prior to
February 1, 2003, the Certificateholders shall have paid to the Trustee,
for distribution to the Depositor, on the Optional Exchange Date an
amount equal to the sum obtained by multiplying the amount of accrued
interest on the Underlying Securities from August 1, 2002 through, but
excluding, the Closing Date by a fraction, the numerator of which shall
be the number of Certificates being exchanged on such Optional Exchange
Date and the denominator of which shall be the total number of
Certificates.
(c) Concurrently with the execution of this Series Supplement, the
Trustee, on behalf of the Trust, shall execute the Warrant Agent Agreement
and the Call Warrants, dated as of the date hereof and substantially in the
form of Exhibit B hereto, initially evidencing all of the Call Warrants. The
Trustee shall perform the Trust's obligations under the Warrant Agent
Agreement and the Call Warrants in accordance with their respective terms.
(d) Call Warrants may be exercised by the Warrant Holder in whole or in
part on any Call Date. In addition to the conditions set forth in Section 1.1
of the Warrant Agent Agreement, the following conditions shall apply to any
Optional Call.
(i) An opinion of counsel to the Warrant Holder shall have been
delivered to the Rating Agencies, in form satisfactory to the Rating
Agencies, indicating that payment of the Call Price shall not be
recoverable as a preferential transfer or fraudulent conveyance under
the United States Bankruptcy Code. Such opinion may contain customary
assumptions and qualifications.
(ii) The Warrant Holder shall have provided a certificate of
solvency to the Trustee.
(iii) Upon receipt of a Call Notice, the Trustee shall provide a
conditional call notice to the Depository not less than 3 Business Days
prior to the Call Date.
(iv) Delivery of a Call Notice does not give rise to an obligation
on the part of the Warrant Holder to pay the Call Price. If, by
10:00 a.m. (New York City time) on the Call Date, the Warrant Holder has
not paid the Call Price, except in connection with a Call Notice
relating to a tender offer for the Underlying Securities, then the Call
Notice shall automatically expire and none of the Warrant Holder, the
Warrant Agent or the Trustee shall have any obligation with respect to
the Call Notice. The expiration of a Call Notice shall in no way affect
the Warrant Xxxxxx's right to deliver a Call Notice at a later date.
The Call Price for a call in connection with a tender offer shall be
deducted from the proceeds of a tender offer by the Trust pursuant to
Section 7(g)(iii).
(v) Subject to receipt of the Call Price, the Trustee shall pay
the applicable portion of the Call Price to the Class A-1, Class A-2A
and Class A-2B Certificateholders on the Call Date. The Call Price for
each Class of Certificates in respect of partial calls shall be
allocated pro rata to the Certificateholders of such Class.
(vi) The Trustee shall not consent to any amendment or modification
of this Agreement (including the Standard Terms) which would adversely
affect the Warrant Holders (including, without limitation, any
alteration of the timing or amount of any
18
payment of the Call Price or any other provision of this Agreement in a
manner adverse to the Warrant Holders) without the prior written
consent of 100% of the Warrant Holders. For purposes of this clause, no
amendment, modification or supplement required to provide for any
purchase by the Trustee of additional Underlying Securities and
authentication and delivery by the Trustee of additional Certificates
and Call Warrants pursuant to Section 3(d) shall be deemed to adversely
affect the Warrant Holders.
(vii) The Trustee shall not be obligated to determine whether an
Optional Call complies with the applicable provisions for exemption
under Rule 3a-7 of the Investment Company Act of 1940, as amended, or
the rules or regulations promulgated thereunder.
(e) This Section 7 shall not provide the Warrant Holder with a lien
against, an interest in or a right to specific performance with respect to
the Underlying Securities; provided that satisfaction of the conditions set
forth in Section 7(b) shall entitle the Certificateholders or the Warrant
Holders, as applicable, to a distribution of the Underlying Securities.
(f) The rights of the Certificateholders under the Trust Agreement and
the Certificates are limited by the terms, provisions and conditions of the
Trust Agreement, the Warrant Agent Agreement and the Call Warrants with
respect to the exercise of the Call Warrants by the Warrant Holder. The
Certificateholders, by their acceptance of Certificates, covenant and agree
to tender any and all Called Certificates to the Trustee upon the Warrant
Holder's exercise of Call Warrants and payment of the Call Price for such
Certificates in accordance with the provisions hereof and of the Warrant
Agent Agreement.
(g) (i) If the Trustee receives notice of a tender offer for some or
all of the Underlying Securities, the Trustee shall within one Business Day
notify the Warrant Agent and forward to the Warrant Agent copies of all
materials received by the Trustee in connection therewith. If the Trustee
receives a Call Notice from any Warrant Holder no later than five Business
Days prior to the expiration of the tender offer acceptance period that such
Warrant Holder desires to exercise all or a portion of its Call Warrants in
connection with the consummation of any such tender offer, then the Trustee
shall tender, in compliance with the tender offer requirements, an amount of
Underlying Securities equal to the amount of Underlying Securities that would
be distributable to the Warrant Holder with respect to an Optional Exchange
of the Called Certificates called by such Warrant Holder; provided that any
Optional Call or Optional Exchange undertaken in connection with any such
tender offer shall be subject to the provisions of Section 7 hereof.
(ii) The Call Date and Optional Exchange Date for any exercise of
Call Warrants in connection with a tender offer shall be deemed to be
the Business Day on which such Underlying Securities are accepted for
payment and paid for.
(iii) The Call Price shall be deducted from the tender offer
proceeds and paid to Certificateholders in connection with
Section 7(d)(v), and the excess of the tender offer proceeds over the
Call Price shall be paid to the exercising Warrant Holders pro rata in
respect to their proportionate exercises of Call Warrants or, if the
Call Price exceeds the
19
tender offer proceeds, the amount of such excess shall be paid by the
exercising Warrant Holders pro rata in respect to their proportionate
exercises of Call Warrants.
(iv) If fewer than all tendered Underlying Securities are accepted
for payment and paid for, (A) the amount of Call Warrants exercised
shall be reduced to an amount that corresponds to a number of
Certificates that could be exchanged in an Optional Exchange for the
Underlying Securities accepted for payment and paid for (without regard
to any restrictions on the amount to be exchanged, so long as such
restrictions would have been satisfied had all tendered Underlying
Securities been accepted for payment and paid for); (B) each Warrant
Holder's exercise shall be reduced by its share (proportionate to the
amount specified in its exercise notice) of the amount of Underlying
Securities not accepted for payment and paid for; (C) the Call Price
shall be determined after giving effect to the reduction specified in
clause (B); (D) the Call Warrants that relate to the reduction specified
in clause (B) shall remain outstanding; and (E) the excess of the tender
offer proceeds over the Call Price shall be allocated in proportion to
the amount of Call Warrants deemed exercised as set forth in clause (A)
above or, if the Call Price exceeds the tender offer proceeds the amount
of such excess shall be paid by the exercising Warrant Holders pro rata
in respect to their proportionate exercises of Call Warrants.
(v) If the tender offer is terminated by the Underlying Securities
Issuer or any other tender offeror without consummation thereof or if
all tenders by the Trust of Underlying Securities are otherwise
rejected, then (1) the Call Notices will be of no further force and
effect, and (2) any Call Warrants relating to such Call Notices will not
be exercised and will remain outstanding.
Section 8. Notices of Events of Default.
As promptly as practicable after, and in any event within 30 days
after, the occurrence of any Event of Default actually known to the Trustee,
the Trustee shall give notice of such Event of Default to the Depository, or,
if any Certificates are not then held by DTC or any other depository,
directly to the registered holders of such Certificates, and to the Warrant
Agent. However, except in the case of an Event of Default relating to the
payment of principal of or interest on any of the Underlying Securities, the
Trustee will be protected in withholding such notice if in good faith it
determines that the withholding of such notice is in the interest of the
Certificateholders.
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms
shall not apply to the Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18
Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Xxxxxxx-Xxxxx Squibb Debenture-Backed Series
2002-18 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.
20
(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 Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18
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 and
Class A-2 Certificateholders pro rata in proportion to their respective
entitlements to such delayed payments.
(g) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Losses (as defined in the Standard
Terms).
(h) The Trust may not engage in any business or activities other than
in connection with, or relating to, the holding, protecting and preserving of
the Trust Property and the issuance of the Certificates and the Call
Warrants, and other than those required or authorized by the Trust Agreement
or incidental and necessary to accomplish such activities. The Trust may not
issue or sell any certificates or other obligations other than the
Certificates and the Call Warrants or otherwise incur, assume or guarantee
any indebtedness for money borrowed. Notwithstanding Section 3.05 of the
Standard Terms, funds on deposit in the Certificate Account shall not be
invested. Section 2.01(f) of the Standard Terms shall be superseded by this
provision.
(i) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee may be removed upon 60 days prior written notice delivered by the
holders of Class A-1 Certificates and Class A-2 Certificates representing the
Required Percentage-Removal. Section 2.01(f) of the Standard Terms shall be
superseded by this provision.
(j) In the event that the Internal Revenue Service challenges the
characterization of the Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application
of Subchapter K of the Code and is hereby empowered to execute such forms on
behalf of the Certificateholders.
(k) Notwithstanding anything in the Standard Terms to the contrary, the
Trustee, upon written direction by the Depositor, will execute the
Certificates.
(l) In relation to Section 7.01(f) of the Standard Terms, any periodic
reports filed by the Trustee pursuant to the Exchange Act in accordance with
the customary practices of the Depositor, need not contain any independent
reports.
(m) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee will have no recourse to the Underlying Securities.
21
(n) A Plan fiduciary, whether or not a Certificateholder at such time,
may request in writing that the Trustee provide such Plan fiduciary with such
information as shall be necessary for it to determine whether any of the Call
Warrant holders is (i) a "party in interest" (within the meaning of ERISA,
Section 3(14)); or (ii) a "disqualified person" within the meaning of
Internal Revenue Code ("Code") Section 4975(e)(2) with respect to any
employee benefit plan or Plan identified to the Trustee by such Plan
fiduciary at the time such request is made in order for the Plan fiduciary to
determine whether an investment in the Certificates by such Plan is or would
be permissible under ERISA or the Code. Any such written request of a Plan
fiduciary shall be accompanied by a certification of the Plan fiduciary,
opinion of counsel experienced in such issues, and such other documentation
as the Trustee may require, in order to establish that such disclosure is
necessary for the Plan fiduciary to determine compliance with ERISA and the
Code, as well as a confidentiality agreement, whereby the Plan fiduciary
agrees not to disclose the identity of any Call Warrant holders except to any
legal or other experts as necessary to make such determination. The holder
of a Call Warrant shall upon reasonable request of the Trustee, in order for
the Trustee to satisfy its obligations to a Plan fiduciary, provide the
Trustee with any one or more of the following, in the sole discretion of the
Call Warrant holder: (i) a certificate that each of the Call Warrant holders
is not (x) a "party in interest" (within the meaning of ERISA, Section 3(14))
with respect to any "employee benefit plan" as defined in ERISA, Section
3(3); or (y) a "disqualified person" within the meaning of Internal Revenue
Code Section 4975(e)(2) with respect to a "Plan" as defined in Code Section
4975(e)(1) except in each case with respect to plans sponsored by the Call
Warrant holder or its affiliates which cover employees of the Call Warrant
holder and/or such affiliates; (ii) a certificate that each of the Call
Warrant holders is not such a "party in interest" or "disqualified person"
with respect to any employee benefit plan or Plan identified to the Trustee
by such Plan fiduciary at the time such request is made; or (iii) a written
consent to the limited disclosure of the respective Call Warrant holder's
identity to a specific Plan fiduciary solely for purposes of allowing the
Trustee to satisfy its obligations to a Plan fiduciary.
(o) The Trust will not merge or consolidate with any other entity
without confirmation from each Rating Agency that such merger or
consolidation will not result in the qualification, reduction or withdrawal
of its then-current rating on the Certificates.
(p) All directions, demands and notices hereunder or under the Standard
Terms shall be in writing and shall be delivered as set forth below (unless
written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
22
If to the Trustee or the Warrant Agent, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copies of all directions, demands and notices required to be given to
the Certificateholders hereunder or under the Standard Terms will also be
given to the Warrant Holders in writing as set forth in this Section 9, and
copies of all directions, demands and notices required to be given to the
Trustee hereunder or under the Standard Terms will also be given to the
Warrant Agent in writing as set forth in this Section 9(p).
(q) Each of the representations, covenants and agreements made herein
by each of the Depositor and the Trustee are for the benefit of the
Certificateholders and the Warrant Holders.
(r) The provisions of Section 2.01(d)(iii) of the Standard Terms shall
not apply to the Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18
Certificates and the following shall be deemed to be inserted in its place:
23
"at the time of delivery of the Underlying Securities, the Depositor
owns such Underlying Securities, has the right to transfer its interest in
such Underlying Securities and such Underlying Securities are free and clear
of any lien, pledge, encumbrance, right, charge, claim or other security
interest; and
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS
PROVISIONS THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in
any number of counterparts, each of which shall be deemed to be an original,
and all such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon
the earliest to occur of (i) the payment in full at maturity or sale by the
Trust after a payment default or an acceleration or other early payment of
the Underlying Securities and the distribution in full of all amounts due to
the Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call Warrants by the Warrant Holder; (iii) the
Final Scheduled Distribution Date and (iv) the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof.
Section 13. Sale of Underlying Securities; Optional Exchange. In the
event of a sale of the Underlying Securities pursuant to Section 5(e) hereof
or pursuant to the instructions of the Warrant Agent under Section 1.2 of the
Warrant Agent Agreement, the Trustee shall solicit bids for the sale of the
Underlying Securities with settlement thereof on or before the third (3rd)
Business Day after such sale from three leading dealers in the relevant
market. Any of the following dealers (or their successors) shall be deemed
to qualify as leading dealers: (1) Credit Suisse First Boston Corporation,
(2) Xxxxxxx, Xxxxx & Co., (3) Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, (4) UBS Warburg LLC, (5) Xxxxxxx Xxxxx Xxxxxx Inc., and
(6) except in the case of a sale related to the exercise of Call Warrants by
the Depositor or any Affiliate thereof, Xxxxxx Brothers Inc. The Trustee
shall not be responsible for the failure to obtain a bid so long as it has
made reasonable efforts to obtain bids. If a bid for the sale of the
Underlying Securities has been accepted by the Trustee but the sale has
failed to settle on the proposed settlement date, the Trustee shall request
new bids from such leading dealers to the Class A-1 and Class A-2
Certificateholders. The Trustee shall not be responsible for the failure to
obtain a bid so long as it has made reasonable efforts to obtain bids. If a
bid for the sale of the Underlying Securities has been accepted by the
Trustee but the sale has failed to settle on the proposed settlement date,
the Trustee shall request new bids from such leading dealers. In the event
of an Optional Exchange, the Trustee shall only deliver the Underlying
Securities to the purchaser of such Underlying Securities or sell the
Underlying Securities pursuant to this Section 13, as the case may be,
against payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust
Agreement to the contrary, in addition to the other restrictions on
modification and amendment contained therein,
24
the Trustee shall not enter into any amendment or modification of the Trust
Agreement which would adversely affect in any material respect the interests
of the holders of any class of Certificates without the consent of the holders
of 100% of such class of Certificates; provided, however, that no such
amendment or modification will be permitted which would cause the Trust to be
taxed as an association or publicly traded partnership taxable as a
corporation for federal income tax purposes. Unless otherwise agreed, the
Trustee shall provide five Business Days written notice to each Rating Agency
before entering into any amendment or modification of the Trust Agreement
pursuant to this Section 14.
Section 15. Voting of Underlying Securities, Modification of Indenture.
(a) The Trustee, as holder of the Underlying Securities, has the right
to vote and give consents and waivers in respect of the Underlying Securities
as permitted by the Depository and except as otherwise limited by the Trust
Agreement. In the event that the Trustee receives a request from the
Depository, the Underlying Securities Trustee or the Underlying Securities
Issuer for its consent to any amendment, modification or waiver of the
Underlying Securities, the Indenture or any other document thereunder or
relating thereto, or receives any other solicitation for any action with
respect to the Underlying Securities, the Trustee shall mail a notice of such
proposed amendment, modification, waiver or solicitation to each
Certificateholder of record as of such date. The Trustee shall request
instructions from the Certificateholders as to whether or not to consent to
or vote to accept such amendment, modification, waiver or solicitation. The
Trustee shall consent or vote, or refrain from consenting or voting, in the
same proportion (based on the relative outstanding Certificate Principal
Balances of the Class A-1 Certificates) as the Certificates of the Trust were
actually voted or not voted by the Certificateholders thereof as of a date
determined by the Trustee prior to the date on which such consent or vote is
required; provided, however, that, notwithstanding anything in the Trust
Agreement to the contrary, the Trustee shall at no time vote on or consent to
any matter (i) unless such vote or consent would not (based on an opinion of
counsel) cause the Trust to be taxed as an association or publicly traded
partnership taxable as a corporation under the Code, (ii) which would alter
the timing or amount of any payment on the Underlying Securities, including,
without limitation, any demand to accelerate the Underlying Securities,
except in the event of a default under the Underlying Securities or an event
which with the passage of time would become an event of default under the
Underlying Securities and with the unanimous consent of holders of all
outstanding Class A-1 Certificates, Class A-2 Certificates and all Warrant
Holders, or (iii) which would result in the exchange or substitution of any
of the outstanding Underlying Securities pursuant to a plan for the refunding
or refinancing of such Underlying Securities except in the event of a default
under the Indenture and only with the consent of Certificateholders
representing 100% of the Class A-1 Certificates, 100% of the Class A-2
Certificates and 100% of the Warrant Holders. The Trustee shall have no
liability for any failure to act resulting from Certificateholders' late
return of, or failure to return, directions requested by the Trustee from the
Certificateholders.
(b) In the event that an offer is made by the Underlying Securities
Issuer to issue new obligations in exchange and substitution for any of the
Underlying Securities, pursuant to a plan for the refunding or refinancing of
the outstanding Underlying Securities or any other offer is made for the
Underlying Securities, the Trustee shall notify the Class A-1
Certificateholders, Class A-2 Certificateholders and the Warrant Holders of
such offer promptly. Subject to the rights of the Warrant Holders to
exercise Call Warrants in connection with a tender offer for the
25
Underlying Securities, the Trustee must reject any such offer unless an
Underlying Securities event of default has occurred and the Trustee is
directed by the affirmative vote of the holders of 100% of the Class A-1
Certificates, Class A-2 Certificates and Call Warrants to accept such offer
and the Trustee has received the tax opinion described above. If pursuant to
the preceding sentence, the Trustee accepts any such offer the Trustee shall
promptly notify the Rating Agencies.
(c) If an event of default under the Indenture occurs and is
continuing, and if directed by a majority of the outstanding Class A-1
Certificateholders and Class A-2 Certificateholders, the Trustee shall vote
the Underlying Securities in favor of directing, or take such other action as
may be appropriate to direct, the Underlying Securities Trustee to declare
the unpaid principal amount of the Underlying Securities and any accrued and
unpaid interest thereon to be due and payable.
Section 16. Additional Depositor Representation. It is the express
intent of the parties hereto that the conveyance of the Underlying Securities
by the Depositor to the Trustee be, and be construed as, a sale of the
Underlying Securities by the Depositor and not a pledge of any Underlying
Securities by the Depositor to secure a debt or other obligation of the
Depositor. In the event that, notwithstanding the aforementioned intent of
the parties, any Underlying Securities are held to be property of the
Depositor, then, it is the express intent of the parties that such conveyance
be deemed a pledge of such Underlying Securities by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor, pursuant to
Section 10.07 of the Standard Terms. In connection with any such grant of a
security interest in the Underlying Securities (including any such grant in
connection with any sale of additional Underlying Securities pursuant to
Section 3(d)), the Depositor hereby represents and warrants to Trustee as
follows:
(i) In the event the Underlying Securities are held to be property of
the Depositor, then the Trust Agreement creates a valid and
continuing security interest (as defined in the applicable Uniform
Commercial Code) in the Underlying Securities in favor of the
Trustee which security interest is prior to all other liens, and
is enforceable as such as against creditors of, and purchasers
from, the Depositor.
(ii) The Underlying Securities have been credited to a trust account
(the "Securities Account") of the Trustee, or its authorized
agent, in accordance with Section 2.01 of the Standard Terms. The
Trustee, as securities intermediary for the Securities Account,
has agreed to treat the Underlying Securities as "financial
assets" within the meaning of the Uniform Commercial Code.
(iii) Immediately prior to the transfer of the Underlying Securities to
the Trust, Depositor owned and had good and marketable title to
the Underlying Securities free and clear of any lien, claim or
encumbrance of any Person.
(iv) Depositor has received all consents and approvals required by the
terms of the Underlying Securities to the transfer to the Trustee
of its interest and rights in the Underlying Securities as
contemplated by the Trust Agreement.
26
(v) Depositor has taken all steps necessary to cause the Trustee, as
securities intermediary for the Securities Account, to identify on
its records that the Trustee, as the trustee of the Trust, is the
Person having a security entitlement against the securities
intermediary in the Securities Account.
(vi) Depositor has not assigned, pledged, sold, granted a security
interest in or otherwise conveyed any interest in the Underlying
Securities (or, if any such interest has been assigned, pledged or
otherwise encumbered, it has been released). Depositor has not
authorized the filing of and is not aware of any financing
statements against Depositor that includes a description of the
Underlying Securities. Depositor is not aware of any judgment or
tax lien filings against Depositor.
(vii) The Securities Account is not in the name of any Person other than
the Trust. Depositor has not consented to the compliance by the
Trustee, as securities intermediary, with entitlement orders of
any Person other than the Trustee, as trustee of the Trust.
27
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of
the date first written above.
XXXXXX ABS CORPORATION,
as Depositor
By: /s/Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Trustee on behalf of the
Corporate Backed Trust Certificates
Xxxxxxx-Xxxxx Squibb Debenture-Backed
Series 2002-18 Trust
By: /s/Xxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
28
SCHEDULE I
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES 2002-18
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 6.875% Notes due August 1, 2097.
Issuer: Xxxxxxx-Xxxxx Squibb Company
CUSIP Number: 000000XX0.
Principal Amount Deposited: $25,180,000.
Original Issue Date: August 12, 1997.
Principal Amount of
Underlying Securities
Originally Issued: $300,000,000.
Maturity Date: August 1, 2097; provided, that
such maturity may under certain
conditions be advanced in the
event of a Tax Event.
Interest Rate: 6.875% per annum.
Interest Payment Dates: February 1st and August 1st.
Record Dates: January 15th and July 15th.
I-1
EXHIBIT A-1
FORM OF TRUST CERTIFICATE CLASS A-1
CLASS A-1 CERTIFICATE
NUMBER 1 1,007,200 $25 PAR CERTIFICATES
CUSIP NO. 21988G 34 6
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL
OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
THE CERTIFICATEHOLDERS, BY THEIR ACCEPTANCE OF CERTIFICATES,
COVENANT AND AGREE TO TENDER ANY AND ALL CALLED CERTIFICATES TO THE TRUSTEE
UPON THE WARRANT HOLDER'S EXERCISE OF CALL WARRANTS AND PAYMENT OF THE CALL
PRICE FOR SUCH CERTIFICATES IN ACCORDANCE WITH THE PROVISIONS HEREOF AND OF
THE WARRANT AGENT AGREEMENT.
A-1-1
XXXXXX ABS CORPORATION
1,007,200 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES 2002-18
6.25% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest
in the Trust, as defined below, the property of which consists principally of
$25,180,000 aggregate principal amount of 6.875% Notes due August 1, 2097,
issued by Xxxxxxx-Xxxxx Squibb Company (the "Underlying Securities Issuer")
and all payments received thereon (the "Trust Property"), deposited in trust
by Xxxxxx ABS Corporation (the "Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an
aggregate of $25,180,000 principal amount nonassessable, fully-paid,
proportionate undivided beneficial ownership interest in the Corporate Backed
Trust Certificates, Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18
Trust, formed by the Depositor.
A-1-2
The Trust was created pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Standard Terms"), between the
Depositor and U.S. Bank Trust National Association, a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement in respect of the
Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18, dated as of October 31,
2002 (the "Series Supplement" and, together with the Standard Terms, the
"Trust Agreement"), between the Depositor and the Trustee. This Certificate
does not purport to summarize the Trust Agreement and reference is hereby made
to the Trust Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee with respect hereto. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office. Capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as the "Corporate Backed Trust Certificates, Xxxxxxx-Xxxxx Squibb
Debenture-Backed Series 2002-18, Class A-1" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The Trust Property consists of: (i) Underlying
Securities described in the Trust Agreement, and (ii) all payments on or
collections in respect of the Underlying Securities accrued on or after
October 31, 2002, together with any and all income, proceeds and payments with
respect thereto; provided, however, that any income from the investment of
Trust funds in certain permitted investments ("Eligible Investments") does not
constitute Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, distributions will be made on each Distribution Date, to the Person
in whose name this Certificate is registered on the applicable Record Date, in
an amount equal to such Certificateholder's proportionate undivided beneficial
ownership interest in the amount required to be distributed to the Holders of
the Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding
such Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Trust, or join in any institution against the Trust of,
any bankruptcy proceedings under any United States Federal or state bankruptcy
or similar law in connection with any obligations relating to the Certificates
or the Trust Agreement.
Distributions made on this Certificate will be made as provided in
the Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such
A-1-3
nominee shall be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Except
as otherwise provided in the Trust Agreement and notwithstanding the above,
the final distribution on this Certificate will be made after due notice by
the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the Corporate Trust Office or such other
location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES
2002-18 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
------------------------------
Authorized Signatory
Dated: October 31, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates,
Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18, described in the Trust
Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
--------------------------
Authorized Signatory
A-1-5
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to
the Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the Holders of Class A-1 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate)
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not a notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $25
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, the City of
New York, duly endorsed by or accompanied by an assignment in the form below
and by such other documents as required by the Trust Agreement, and thereupon
one or more new Certificates of the same class in authorized denominations
evidencing the same principal amount will be issued to the designated
transferee or transferees. The initial Certificate Registrar appointed under
the Trust Agreement is U.S. Bank Trust National Association.
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require exchange of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the
Trust created thereunder shall constitute a fixed investment trust for federal
income tax purposes under Treasury Regulation Section 301.7701-4, and the
Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall
terminate upon the earliest to occur of (i) the payment in full at maturity or
sale by the Trust after a payment default or an acceleration or
A-1-6
other early payment of the Underlying Securities and the distribution in full
of all amounts due to the Class A-1 Certificateholders and Class A-2
Certificateholders; (ii) the exercise of all outstanding Call Warrants by the
Warrant Holders; (iii) the Final Scheduled Distribution Date and (iv) the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
A-1-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee) the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing ______________________ Attorney to
transfer said Certificate on the books of the Certificate Register, with full
power of substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed
by an "eligible guarantor institution" meeting the requirements of the
Certificate Registrar, which requirements include membership or participation
in the Security Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-1-8
EXHIBIT A-2A
FORM OF TRUST CERTIFICATE CLASS A-2A
CLASS A-2A CERTIFICATE
NUMBER 1 CUSIP NO. 21988G CB 0
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-2A CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER
SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT.
THE CLASS A-2 CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2A CERTIFICATE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS CLASS A-2A CERTIFICATE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE NOTIONAL PRINCIPAL AMOUNT OF THIS CLASS A-2A CERTIFICATE IS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING NOTIONAL PRINCIPAL AMOUNT OF
THIS CLASS A-2A CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL
OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
A-2A-1
THE CERTIFICATEHOLDERS, BY THEIR ACCEPTANCE OF CERTIFICATES,
COVENANT AND AGREE TO TENDER ANY AND ALL CALLED CERTIFICATES TO THE TRUSTEE
UPON THE WARRANT HOLDER'S EXERCISE OF CALL WARRANTS AND PAYMENT OF THE CALL
PRICE FOR SUCH CERTIFICATES IN ACCORDANCE WITH THE PROVISIONS HEREOF AND OF
THE WARRANT AGENT AGREEMENT.
A-2A-2
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES 2002-18
$25,180,000 NOTIONAL PRINCIPAL AMOUNT
0.625% INTEREST RATE
FINAL SCHEDULED DISTRIBUTION DATE: AUGUST 1, 2042
evidencing a proportionate undivided beneficial ownership interest
in the Trust, as defined below, the property of which consists principally of
$25,180,000 aggregate principal amount of 6.875% Debentures due August 1,
2097, issued by Xxxxxxx-Xxxxx Squibb Company and all payments received thereon
(the "Trust Property"), deposited in trust by Xxxxxx ABS Corporation (the
"Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an
aggregate amount of $25,180,000 notional principal amount nonassessable,
fully-paid, proportionate undivided beneficial ownership interest in the
Corporate Backed Trust Certificates, Xxxxxxx-Xxxxx Squibb Debenture-Backed
Series 2002-18 Trust, formed by the Depositor.
The Trust was created pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Standard Terms"), between the
Depositor and U.S. Bank Trust National Association , a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement, Xxxxxxx-Xxxxx Squibb
Debenture-Backed Series 2002-18, dated as of October 31, 2002 (the "Series
Supplement" and, together with the Standard Terms, the "Trust Agreement"),
between the Depositor and the Trustee. This Certificate does not purport to
summarize the Trust Agreement and reference is hereby made to the Trust
Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee with respect hereto. A copy of the Trust Agreement
may be obtained from the Trustee by written request sent to the Corporate
Trust Office. Capitalized terms used but not defined herein have the meanings
assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as the "Corporate Backed Trust Certificates, Xxxxxxx-Xxxxx Squibb
Debenture-Backed Series 2002-18, Class A-2A" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The Trust Property consists of: (i) Underlying
Securities described in the Trust Agreement, and (ii) all payments on or
collections in respect of the Underlying Securities accrued on or after
October 31, 2002, together with any and all income, proceeds and payments
A-2A-3
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 of interest will be made on this Certificate on each
Distribution Date until the Distribution Date occurring in August 2042.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, distributions will be made on each Distribution Date, to the Person
in whose name this Certificate is registered on the applicable Record Date, in
an amount equal to such Certificateholder's proportionate undivided beneficial
ownership interest in the amount required to be distributed to the Holders of
the Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding
such Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Trust, or join in any institution against the Trust of,
any bankruptcy proceedings under any United States Federal or state bankruptcy
or similar law in connection with any obligations relating to the Certificates
or the Trust Agreement.
Distributions made on this Certificate will be made as provided in
the Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee shall be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the Corporate
Trust Office or such other location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid
for any purpose.
A-2A-4
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-2A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES
2002-18 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
---------------------------------
Authorized Signatory
Dated: October 31, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates,
Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18, 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-2A-6
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to
the Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of Class A-2 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate)
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $100,000 and in integral multiples of $1 in excess thereof.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, the City of
New York, duly endorsed by or accompanied by an assignment in the form below
and by such other documents as required by the Trust Agreement, and thereupon
one or more new Certificates of the same class in authorized denominations
evidencing the same notional principal amount will be issued to the designated
transferee or transferees. The initial Certificate Registrar appointed under
the Trust Agreement is U.S. Bank Trust National Association.
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require exchange of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the
Trust created thereunder shall constitute a fixed investment trust for federal
income tax purposes under Treasury Regulation Section 301.7701-4, and the
Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall
terminate upon the earliest to occur of (i)
A-2A-7
the payment in full at maturity or sale by the Trust after a payment default
on or an acceleration or other early payment of the Underlying Securities and
the distribution in full of all amounts due to the Class A-1
Certificateholders and Class A-2 Certificateholders; (ii) the exercise of all
outstanding Call Warrants by the Warrant Holders; (iii) the Final Scheduled
Distribution Date and (iv) the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
A-2A-8
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-2A-9
EXHIBIT A-2B
FORM OF TRUST CERTIFICATE CLASS A-2B
CLASS A-2B CERTIFICATE
NUMBER 1 CUSIP NO. 21988G CC 8
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-2B CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER
SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT.
THE CLASS A-2B CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2B CERTIFICATE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS CLASS A-2B CERTIFICATE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE NOTIONAL PRINCIPAL AMOUNT OF THIS CLASS A-2B CERTIFICATE IS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING NOTIONAL PRINCIPAL AMOUNT OF
THIS CLASS A-2B CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL
OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
A-2B-1
THE CERTIFICATEHOLDERS, BY THEIR ACCEPTANCE OF CERTIFICATES,
COVENANT AND AGREE TO TENDER ANY AND ALL CALLED CERTIFICATES TO THE TRUSTEE
UPON THE WARRANT HOLDER'S EXERCISE OF CALL WARRANTS AND PAYMENT OF THE CALL
PRICE FOR SUCH CERTIFICATES IN ACCORDANCE WITH THE PROVISIONS HEREOF AND OF
THE WARRANT AGENT AGREEMENT.
A-2B-2
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES 2002-18
$25,180,000 NOTIONAL PRINCIPAL AMOUNT
0.625% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest
in the Trust, as defined below, the property of which consists principally of
$25,180,000 aggregate principal amount of 6.875% Notes due August 1, 2097,
issued by Xxxxxxx-Xxxxx Squibb Company and all payments received thereon (the
"Trust Property"), deposited in trust by Xxxxxx ABS Corporation (the
"Depositor"). No payments of regularly scheduled interest in respect of this
certificate shall be made until February 1, 2043.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an
aggregate amount of $25,180,000 notional principal amount nonassessable,
fully-paid, proportionate undivided beneficial ownership interest in the
Corporate Backed Trust Certificates, Xxxxxxx-Xxxxx Squibb Debenture-Backed
Series 2002-18 Trust, formed by the Depositor.
The Trust was created pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Standard Terms"), between the
Depositor and U.S. Bank Trust National Association , a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement, Xxxxxxx-Xxxxx Squibb
Debenture-Backed Series 2002-18, dated as of October 31, 2002 (the "Series
Supplement" and, together with the Standard Terms, the "Trust Agreement"),
between the Depositor and the Trustee. This Certificate does not purport to
summarize the Trust Agreement and reference is hereby made to the Trust
Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee with respect hereto. A copy of the Trust Agreement
may be obtained from the Trustee by written request sent to the Corporate
Trust Office. Capitalized terms used but not defined herein have the meanings
assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as the "Corporate Backed Trust Certificates, Xxxxxxx-Xxxxx Squibb
Debenture-Backed Series 2002-18, Class A-2B" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The Trust Property consists of: (i) Underlying
Securities described in the Trust Agreement, and (ii) all payments on or
collections in respect of the Underlying Securities accrued on or after
October 31, 2002, together with any and all income, proceeds and payments with
respect thereto; provided, however, that any income from the investment of
Trust funds in certain permitted investments ("Eligible Investments") does not
constitute Trust Property.
A-2B-3
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, distributions of interest will be made on this Certificate on each
Distribution Date occurring on or after the Distribution Date in February
2043.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, distributions will be made on each Distribution Date, to the Person
in whose name this Certificate is registered on the applicable Record Date, in
an amount equal to such Certificateholder's proportionate undivided beneficial
ownership interest in the amount required to be distributed to the Holders of
the Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding
such Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Trust, or join in any institution against the Trust of,
any bankruptcy proceedings under any United States Federal or state bankruptcy
or similar law in connection with any obligations relating to the Certificates
or the Trust Agreement.
Distributions made on this Certificate will be made as provided in
the Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee shall be Cede & Co.), payments will be made
by wire transfer in immediately available funds to the account designated by
such nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the Corporate
Trust Office or such other location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee, by manual signature, this Certificate shall
not entitle the Holder hereof to any benefit under the Trust Agreement or be
valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
A-2B-4
OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER
HEREOF SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES
2002-18 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
------------------------------------
Authorized Signatory
Dated: October 31, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates,
Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18, 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-2B-6
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to
the Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of Class A-2 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate)
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $100,000 and in integral multiples of $1 in excess thereof.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, the City of
New York, duly endorsed by or accompanied by an assignment in the form below
and by such other documents as required by the Trust Agreement, and thereupon
one or more new Certificates of the same class in authorized denominations
evidencing the same notional principal amount will be issued to the designated
transferee or transferees. The initial Certificate Registrar appointed under
the Trust Agreement is U.S. Bank Trust National Association.
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require exchange of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the
Trust created thereunder shall constitute a fixed investment trust for federal
income tax purposes under Treasury Regulation Section 301.7701-4, and the
Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall
terminate upon the earliest to occur of (i)
A-2B-7
the payment in full at maturity or sale by the Trust after a payment default
on or an acceleration or other early payment of the Underlying Securities and
the distribution in full of all amounts due to the Class A-1
Certificateholders and Class A-2 Certificateholders; (ii) the exercise of all
outstanding Call Warrants by the Warrant Holders; (iii) the Final Scheduled
Distribution Date and (iv) the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
A-2B-8
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-2B-9
EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
XXXXXXX-XXXXX SQUIBB DEBENTURE-BACKED SERIES 2002-18 TRUST
WARRANT AGENT AGREEMENT, dated as of October 31, 2002 (the "Warrant
Agent Agreement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the "Trustee")
and U.S. BANK TRUST NATIONAL ASSOCIATION, as Warrant Agent (the "Warrant
Agent").
W I T N E S S E T H:
WHEREAS, the Depositor created Corporate Backed Trust Certificates,
Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18 Trust (the "Trust"), a
trust created under the laws of the State of New York pursuant to a Standard
Terms for Trust Agreements, dated as of January 16, 2001 (the "Agreement"),
between Xxxxxx ABS Corporation (the "Depositor") and U.S. Bank Trust National
Association, a national banking association, not in its individual capacity
but solely as Trustee (the "Trustee"), as supplemented by the Series
Supplement 2002-18, dated as of October 31, 2002 (the "Series Supplement" and,
together with the Agreement, the "Trust Agreement"), between the Depositor and
the Trustee; and
WHEREAS, in connection with the creation of the Trust and the
deposit therein of the Underlying Securities, it is desired to provide for the
issuance of trust certificates (the "Certificates") evidencing undivided
interests in the Trust and call warrants with respect to the Certificates
("Call Warrants").
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor, the Warrant Agent and the Trustee that except as otherwise
specified herein or as the context may otherwise require, capitalized terms
used herein but not defined herein shall have the respective meanings set
forth below in the Series Supplement, and as follows:
ARTICLE I
EXERCISE OF CALL WARRANTS
Section 1.1 Manner of Exercise. (a) Call Warrants may be exercised
by any holder thereof (each, a "Warrant Holder") in whole or in part on any
Call Date. The following conditions shall apply to any exercise of Call
Warrants:
(i) A notice (each, a "Call Notice") specifying the number of
Call Warrants being exercised and the Call Date shall be delivered
to the Warrant Agent and the Trustee at least 5 Business Days
before such Call Date.
B-1
(ii) The Warrant Holder shall surrender the Call Warrants to
the Warrant Agent at its office specified in Section 6.3 hereof no
later than 10:00 a.m. (New York City time) on such Call Date.
(iii) The Warrant Holder shall have made payment to the Warrant
Agent, by wire transfer or other immediately available funds
acceptable to the Warrant Agent, in the amount of the Call Price,
no later than 10:00 a.m. (New York City time) on the Call Date.
(iv) The Warrant Holder shall exercise Call Warrants relating
to Class A-1 Certificates, Call Warrants relating to the Class A-2A
Certificates and Call Warrants relating to the Class A-2B
Certificates which represent a like percentage of all Class A-1
Certificates, Class A-2A Certificates and Class A-2B Certificates,
respectively.
(v) The Warrant Holder may not exercise the Call Warrants at
any time when such Warrant Holder is insolvent, and such Warrant
Holder shall be required to certify that it is solvent at the time
of exercise, by completing the Form of Subscription attached to the
Call Warrants and delivering such completed Form of Subscription to
the Trustee on or prior to the Call Date and by delivering to the
Trustee a form reasonably satisfactory to the Trustee of the
opinion and the solvency certificate required pursuant to Section
7(d)(ii) of the Series Supplement.
(vi) The Warrant Holder shall have satisfied any other
conditions to the exercise of Call Warrants set forth in Section
7(b) of the Series Supplement.
(b) Upon exercise of Call Warrants, any Warrant Holder other than
the Depositor or any Affiliate of the Depositor shall be entitled to
delivery by the Trustee of the Called Certificates. The "Called
Certificates" shall be, in the case of the Class A-1 Certificates, Class
A-1 Certificates having a Certificate Principal Amount equal to $25 per
Call Warrant, and in the case of the Class A-2 Certificates, Class A-2
Certificates having a notional balance equal to $100,000 per Call
Warrant. Unless otherwise specified therein, such Call Notice shall be
deemed to be notice of an Optional Exchange pursuant to Section 7(b) of
the Series Supplement. Any Warrant Holder which is the Depositor or any
Affiliate of the Depositor shall receive the proceeds of the sale of the
Called Underlying Securities and shall not be entitled to receive the
related Called Certificates or Called Underlying Securities. "Called
Underlying Securities" are Underlying Securities which represent the
same percentage of the Underlying Securities as the Called Certificates
represent of the Class A-1 Certificates, the Class A-2A Certificates and
Class A-2B Certificates.
(c) The Warrant Agent shall notify the Trustee immediately upon
its receipt of a Call Notice and upon receipt of payment of the Call
Price. The Warrant Agent shall transfer the amount of any paid Call
Price to the Trustee in immediately available funds, for deposit in the
Certificate Account and application pursuant to the Trust Agreement on
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the applicable Call Date (and, pending such transfer, shall hold such
amount for the benefit of the Warrant Holder in a segregated trust
account).
(d) Delivery of a Call Notice does not give rise to an obligation
on the part of the Warrant Holder to pay the Call Price. If, by 10:00
a.m. (New York City time) on the Call Date, the Warrant Holder has not
paid the Call Price, except in connection with a Call Notice relating to
a tender offer for Underlying Securities, then the Call Notice shall
automatically expire and none of the Warrant Holder, the Warrant Agent
or the Trustee shall have any obligation with respect to the Call
Notice. The expiration of a Call Notice shall in no way affect the
Warrant Xxxxxx's right to deliver a Call Notice at a later date. The
Call Price for a call in connection with a tender offer shall be
deducted from the proceeds of a tender offer by the Trust pursuant to
Section 7(g)(iii) of the Series Supplement.
Section 1.2 Transfer of Certificates. As soon as practicable after
each surrender of Call Warrants in whole or in part on the Call Date and upon
satisfaction of all other requirements described in the Call Warrants and in
Section 1.1 hereof, the Warrant Agent shall instruct the Trustee as follows:
(a) if Call Warrants are being exercised by any Warrant Holder
other than the Depositor or any Affiliate of the Depositor, to cause the
Called Certificates to reflect the Warrant Holder's beneficial ownership
of such Certificates and if such Call Notice is also deemed to be a
notice of Optional Exchange, to cause a distribution of Underlying
Securities to the Warrant Holder in accordance with Section 7(a) of the
Series Supplement, provided, however, that if such a Call Notice and
Optional Exchange is in connection with a tender offer, the Warrant
Agent shall instruct the Trustee to distribute to the exercising Warrant
Holder the excess of the tender offer proceeds over the Call Price
pursuant to Section 7(g)(iii) of the Series Supplement, or
(b) if the Call Warrants are being exercised by the Depositor or
any Affiliate of the Depositor, to cause the Called Underlying
Securities to be sold pursuant to Section 13 of the Series Supplement
and to distribute the proceeds of such sale to the Warrant Holder.
If such exercise is in part only, the Warrant Agent shall instruct the
Trustee to authenticate new Call Warrants of like tenor, representing the
outstanding Call Warrants of the Warrant Holder and the Warrant Agent shall
deliver such Call Warrants to the Warrant Holder.
In each case, the Trustee shall act in accordance with such
instructions.
Section 1.3 Cancellation and Destruction of Call Warrants. All Call
Warrants surrendered to the Warrant Agent for the purpose of exercise (in
whole or in part) pursuant to Section 1.1 and actually exercised, or for the
purpose of transfer or exchange pursuant to Article III, shall be cancelled
by the Warrant Agent, and no Call Warrant (other than that reflecting any
such transfer or exchange) shall be issued in lieu thereof. The Warrant Agent
shall destroy all cancelled Call Warrants.
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Section 1.4 No Rights as Holder of Certificates Conferred by Call
Warrants. Prior to the exercise thereof, Call Warrants shall not entitle the
Warrant Holder to any of the rights of a holder of the Certificates,
including, without limitation, the right to receive the payment of any amount
on or in respect of the Certificates or to enforce any of the covenants of
the Trust Agreement.
Section 1.5 Pro Rata Reduction of Call Warrants if Partial Redemption
of Underlying Securities. If Underlying Securities are redeemed in part by
the Underlying Securities Issuer and the Warrant Holders do not exercise
their Call Rights in connection with such partial redemption, the number of
Call Warrants held by each Warrant Holder shall be reduced proportionately so
that the aggregate amount of Class A-1 Certificates callable by Call Warrants
shall equal the amount of outstanding Class A-1 Certificates after giving
effect to such partial redemption, the aggregate notional amount of Class
A-2A Certificates callable by Call Warrants shall equal the outstanding
notional amount of Class A-2A Certificates after giving effect to such
partial redemption and the aggregate notional amount of Class A-2B
Certificates callable by Call Warrants shall equal the outstanding notional
amount of Class A-2B Certificates after giving effect to such partial
redemption. The Warrant Agent shall make such adjustments to its records as
shall be necessary to reflect such reductions and shall notify each Warrant
Holder of such adjustments.
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1 Restrictive Legends. Except as otherwise permitted by
this Article II, each Call Warrant (including each Call Warrant issued upon
the transfer of any Call Warrant) shall be issued with a legend in
substantially the following form:
"This Call Warrant has not been registered under the Securities Act of
1933, as amended, and may not be transferred, sold or otherwise disposed of
except while a registration under such Act is in effect or pursuant to an
exemption therefrom under such Act. The Call Warrant represented hereby may
be transferred only in compliance with the conditions specified in the Call
Warrants."
Section 2.2 Notice of Proposed Transfer; Opinions of Counsel. Prior
to any transfer of any Call Warrant or portion thereof, the Warrant Holder
will give 5 Business Days (or such lesser period acceptable to the Warrant
Agent) prior written notice to the Warrant Agent of such Warrant Xxxxxx's
intention to effect such transfer.
ARTICLE III
REGISTRATION AND TRANSFER OF CALL WARRANTS, ETC.
Section 3.1 Warrant Register; Ownership of Call Warrants. The
Warrant Agent will keep a register in which the Warrant Agent will provide
for the registration of Call Warrants and the registration of transfers of
Call Warrants representing numbers of Call Warrants. The Trustee and the
Warrant Agent may treat the Person in whose name any Call Warrant is
registered on
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such register as the owner thereof for all purposes, and the Trustee and the
Warrant Agent shall not be affected by any notice to the contrary.
Section 3.2 Transfer and Exchange of Call Warrants. (a) No Call
Warrant may be offered, resold, assigned or otherwise transferred (including
by pledge or hypothecation) at any time prior to (x) the date which is two
years or such shorter period of time as permitted by Rule 144(k) under the
Securities Act after the later of the original issue date of such Call
Warrants and the last date on which the Depositor or any "affiliate" (as
defined in Rule 144 under the Securities Act) of the Depositor was the owner
of such Call Warrant (or any predecessor thereto) or (y) or such later date,
if any, as may be required by a change in applicable securities laws (the
"Resale Restriction Termination Date") unless such offer, resale, assignment
or transfer is (i) to the Trust, (ii) pursuant to an effective registration
statement under the Securities Act, (iii) to a qualified institutional buyer
(a "QIB"), as such term is defined in Rule 144A promulgated under the
Securities Act ("Rule 144A"), in accordance with Rule 144A or (iv) pursuant
to another available exemption from registration provided under the
Securities Act, and, in each of cases (i) through (iv), in accordance with
any applicable securities laws of any state of the United States and other
jurisdictions. Prior to any offer, resale, assignment or transfer of any
Call Warrant in the manner described in clause (iii) above, the prospective
transferee and the prospective transferor shall be required to deliver to the
Trustee an executed copy of an Investment Letter with respect to the Call
Warrants to be transferred substantially in the form of Exhibit C to the
Series Supplement. Prior to any offer, resale, assignment or transfer of any
Call Warrants in the manner described in clause (iv) above, the prospective
transferee and the prospective transferor shall be required to deliver to the
Trustee documentation certifying that the offer, resale, assignment or
transfer complies with the provisions of said clause (iv). In addition to
the foregoing, each prospective transferee of any Call Warrants in the manner
contemplated by clause (iii) above shall acknowledge, represent and agree as
follows:
(1) The transferee (x) is a QIB, (y) is aware that the sale to it is
being made in reliance on Rule 144A and (z) is acquiring such Call
Warrant for its own account or for the account of a QIB.
(2) The transferee understands that the Call Warrant are being offered
in a transaction not involving any public offering in the United
States within the meaning of the Securities Act, and that the Call
Warrants have not been and will not be registered under the
Securities Act.
(3) The transferee agrees that (A) if in the future it decides to
offer, resell, pledge or otherwise transfer the Call Warrants prior
to the Resale Restriction Termination Date, such Call Warrants
shall only be offered, resold, assigned or otherwise transferred
(i) to the Trust, (ii) pursuant to an effective registration
statement under the Securities Act, (iii) to a QIB, in accordance
with Rule 144A or (iv) pursuant to another available exemption from
registration provided under the Securities Act, and, in each of
cases (i) through (iv), in accordance with any applicable
securities laws of any state of the United States and other
jurisdictions and (B) the transferee will, and each subsequent
holder is required to, notify any subsequent purchaser of such Call
Warrants from it of the resale restrictions referred to in clause
(A) above.
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(b) Upon surrender of any Call Warrant for registration of
transfer or for exchange to the Warrant Agent, the Warrant Agent shall
(subject to compliance with Article II) execute and deliver, and cause
the Trustee, on behalf of the Trust, to execute and deliver, in exchange
therefor, a new Call Warrant of like tenor and evidencing a like number
of Call Warrants, in the name of such Warrant Holder or as such Warrant
Holder (upon payment by such Warrant Holder of any applicable transfer
taxes or government charges) may direct; provided that as a condition
precedent for transferring the Call Warrants, the prospective transferee
shall deliver to the Trustee and the Depositor an executed copy of the
Investment Letter (set forth as Exhibit C to the Series Supplement) if
the same is required pursuant to the provisions of clause (a) above.
Section 3.3 Replacement of Call Warrants. Upon receipt of evidence
reasonably satisfactory to the Warrant Agent of the loss, theft, destruction
or mutilation of any Call Warrant and, in the case of any such loss, theft or
destruction of any Call Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Warrant Agent may determine, or, in the case of any
such mutilation, upon the surrender of such Call Warrant for cancellation to
the Warrant Agent, the Warrant Agent shall execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a
new Call Warrant of like tenor bearing a number not contemporaneously
outstanding.
Section 3.4 Execution and Delivery of Call Warrants by Trustee. The
Trustee, on behalf of the Trust, hereby agrees (subject to compliance with
Article II) to execute and deliver such new Call Warrants issued in
accordance with Section 1.2 or this Article III as the Warrant Agent shall
request in accordance herewith.
Section 3.5 Additional Call Warrants. The Trustee shall execute and
deliver additional Call Warrants on behalf of the Trust with respect to any
additional Certificates issued by the Trust following the sale of additional
Underlying Securities to the Trust, in accordance with the provisions of
Section 3(d) of the Series Supplement.
ARTICLE IV
DEFINITIONS
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any Business Day (i) on or after October 31, 2007,
(ii) after the Underlying Securities Issuer announces that it will redeem
(in whole or in part) or otherwise make an unscheduled payment on the
Underlying Securities, (iii) after the Trustee notifies the
Certificateholders of any proposed sale of the Underlying Securities
pursuant to the provisions of this Series Supplement or (iv) on which a
tender offer for some or all of the Underlying Securities is consummated.
"Call Notice": As defined in Section 1.1(a)(i) hereof.
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"Call Price": For each related Call Date, (i) in the case of the Class A-1
Certificates, 100% of the outstanding Certificate Principal Balance of the
Class A-1 Certificates being purchased pursuant to the exercise of the Call
Warrants, plus any accrued and unpaid interest on such amount to but
excluding the Call Date and (ii) in the case of the Class A-2 Certificates,
present value of all amounts that would otherwise have been payable on the
Class A-2 Certificates being purchased pursuant to the exercise of the Call
Warrants for the period from the related Call Date to the Final Scheduled
Distribution Date using a discount rate of 8.125% per annum, assuming no
delinquencies, deferrals, redemptions or prepayments on the Underlying
Securities shall occur after the related Call Date.
"Call Warrant": As defined in the recitals.
"Called Certificates": As defined in Section 1.1(b) hereof.
"Called Underlying Securities": As defined in Section 1.1(b) hereof.
"Closing Date": October 31, 2002.
"Depositor": As defined in the recitals.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"QIB": As defined in Section 3.2 hereof.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. and any successor thereto.
"Resale Restriction Termination Date": As defined in Section 3.2 hereof.
"Responsible Officer": As defined in the Trust Agreement.
"Rule 144A": As defined in Section 3.2.
"Securities Act": The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time.
"Trust": As defined in the recitals.
"Trust Agreement": As defined in the recitals.
"Trustee": As defined in the recitals, or any successor thereto under the
Trust Agreement.
"Warrant Agent": As defined in the recitals, or any successor thereto
under this Warrant Agent Agreement.
"Warrant Agent Agreement": As defined in the recitals.
"Warrant Holder": As defined in Section 1.1(a) hereof.
ARTICLE V
WARRANT AGENT
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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 Warrant Holder shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may be
legal counsel for the Depositor), and the opinion of such counsel shall
be full and complete authorization and protection to the Warrant Agent
as to any action taken or omitted by it in good faith and in accordance
with such opinion, provided the Warrant Agent shall have exercised
reasonable care in the selection by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the
Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Depositor or the Trustee prior to
taking or suffering any action hereunder, such fact or matter may be
deemed to be conclusively proved and established by a Depositor Order or
a certificate signed by a Responsible Officer of the Trustee and
delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in
good faith by it hereunder in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only for its own
negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained herein or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Trust and the Depositor only.
(e) The Warrant Agent shall not have any responsibility in respect
of and makes no representation as to the validity of the Call Warrants
or the execution and delivery thereof (except the due execution hereof
by the Warrant Agent); nor shall it be responsible for any breach by the
Trust of any covenant or condition contained in the Call Warrants; nor
shall it by any act thereunder be deemed to make any representation or
warranty as to the Certificates to be purchased thereunder.
(f) The Warrant Agent is xxxxxx authorized and directed to accept
instructions with respect to the performance of its duties hereunder
from the Chairman of the Board, the Chief Executive Officer, Chief
Financial Officer, Chief Operating Officer, President, a Vice President,
a Senior Vice President, a Managing Director, its Treasurer, 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
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in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer.
(g) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Call
Warrants or other securities of the Trust or otherwise act as fully and
freely as though it were not Warrant Agent hereunder, so long as such
persons do so in full compliance with all applicable laws. Nothing
herein shall preclude the Warrant Agent from acting in any other
capacity for the Trust, the Depositor or for any other legal entity.
(h) The Warrant Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the Trust
hereunder. The Warrant Agent shall not be liable except for the failure
to perform such duties as are specifically set forth herein, and no
implied covenants or obligations shall be read into the Call Warrants
against the Warrant Agent, whose duties shall be determined solely by
the express provisions thereof. The Warrant Agent shall not be deemed to
be a fiduciary.
(j) The Warrant Agent shall not be responsible for any failure on
the part of the Trustee to comply with any of its covenants and
obligations contained herein.
(k) The Warrant Agent shall not be under any obligation or duty to
institute, appear in or defend any action, suit or legal proceeding in
respect hereof, unless first indemnified to its satisfaction, but this
provision shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may consider proper, whether with or without
such indemnity. The Warrant Agent shall promptly notify the Depositor
and the Trustee in writing of any claim made or action, suit or
proceeding instituted against it arising out of or in connection with
the Call Warrants.
(l) The Trustee will perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such
further acts, instruments and assurances as may be required by the
Warrant Agent in order to enable it to carry out or perform its duties
hereunder.
Section 5.3 Change of Warrant Agent. The Warrant Agent may resign
and be discharged from its duties hereunder upon thirty (30) days notice in
writing mailed to the Depositor and the Trustee by registered or certified
mail, and to the Warrant Holders by first-class mail at the expense of the
Depositor; provided that no such resignation or discharge shall become
effective until a successor Warrant Agent shall have been appointed
hereunder. The Depositor may remove the Warrant Agent or any successor
Warrant Agent upon thirty (30) days notice in writing, mailed to the Warrant
Agent or successor Warrant Agent, as the case may be, and to the Warrant
Holders by first-class mail; provided further that no such removal shall
become effective until a successor Warrant Agent shall have been appointed
hereunder. If the Warrant Agent shall resign or be removed or shall otherwise
become incapable of acting, the Depositor shall promptly appoint a successor
to the Warrant Agent, which may be designated as
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an interim Warrant Agent. If an interim Warrant Agent is designated, the
Depositor shall then appoint a permanent successor to the Warrant Agent, which
may be the interim Warrant Agent. If the Depositor shall fail to make such
appointment of a permanent successor within a period of thirty (30) days after
such removal or within sixty (60) days after notification in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or
by the Warrant Holder, then the Warrant Agent or registered Warrant Holder may
apply to any court of competent jurisdiction for the appointment of such a
successor. Any successor to the Warrant Agent appointed hereunder must be
rated in one of the four highest rating categories by the Rating Agencies. Any
entity which may be merged or consolidated with or which shall otherwise
succeed to substantially all of the trust or agency business of the Warrant
Agent shall be deemed to be the successor Warrant Agent without any further
action.
Section 5.4 Warrant Agent Transfer Fee. The Warrant Agent will
assess a fee of $50.00 upon the issue of any new Call Warrant, such fee to be
assessed upon the new Call Warrant Holder.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Remedies. The remedies at law of the Warrant Holder in
the event of any default or threatened default by the Warrant Agent in the
performance of or compliance with any of the terms of the Call Warrants are
not and will not be adequate and, to the full extent permitted by law, such
terms may be specifically enforced by a decree for the specific performance
of any agreement contained herein or by an injunction against a violation of
any of the terms thereof or otherwise.
Section 6.2 Limitation on Liabilities of Warrant Holder. Nothing
contained in this Warrant Agent Agreement shall be construed as imposing any
obligation on the Warrant Holder to purchase any of the Certificates except
in accordance with the terms thereof.
Section 6.3 Notices. All notices and other communications under this
Warrant Agent Agreement shall be in writing and shall be delivered, or mailed
by registered or certified mail, return receipt requested, by a nationally
recognized overnight courier, postage prepaid, addressed (a) if to any
Warrant Holder, at the registered address of such Warrant Holder as set forth
in the register kept by the Warrant Agent or (b) if to the Warrant Agent, to
000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust or to such other address notice of which the Warrant Agent shall have
given to the Warrant Holder and the Trustee or (c) if to the Trust or the
Trustee, to the Corporate Trust Office (as set forth in the Trust Agreement);
provided that the exercise of any Call Warrants shall be effective in the
manner provided in Article I. The Warrant Agent shall forward to the Warrant
Holder any notices received by it hereunder or pursuant to the Trust
Agreement or this Agreement by facsimile within one Business Day of receipt
thereof.
Section 6.4 Amendment. (a) This Warrant Agent Agreement may be
amended from time to time by the Depositor, the Trustee and the Warrant Agent
without the consent of any Warrant Holder, upon receipt of an opinion of
counsel satisfactory to the Warrant Agent that the
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provisions hereof have been satisfied and that such amendment would not cause
the Trust to be taxed as an association or publicly traded partnership taxable
as a Corporation under the Code, for any of the following purposes: (i) to
cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein or to provide for
any other terms or modify any other provisions with respect to matters or
questions arising under the Call Warrant which shall not adversely affect in
any material respect the interests of the Warrant Holder or any holder of a
Certificate; provided, however that no amendment altering the timing or amount
of any payment of the Call Price shall be effected without the consent of each
Warrant Holder; or (ii) to evidence and provide for the acceptance of
appointment hereunder of a Warrant Agent other than U.S. Bank Trust National
Association.
(b) Without limiting the generality of the foregoing, the Call
Warrants may also be modified or amended from time to time by the
Depositor, the Trustee and the Warrant Agent with the consent of Warrant
Holders of 66-2/3% of each of the Call Warrants related to the Class A-1
Certificates, the Call Warrants related to the Class A-2A Certificates
and the Call Warrants related to the Class A-2B Certificates, upon
receipt of an opinion of counsel satisfactory to the Warrant Agent that
the provisions hereof (including, without limitation, the following
proviso) have been satisfied, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Call Warrants or of modifying in any manner the rights of the Warrant
Holders; provided, however, that no such amendment shall (i) adversely
affect in any material respect the interests of holders of Certificates
without the consent of the holders of Certificates evidencing not less
than the Required Percentage--Amendment of the aggregate Voting Rights of
such affected Certificates (as such terms are defined in the Trust
Agreement) and without written confirmation from the Rating Agencies
that such amendment will not result in a downgrading or withdrawal of
its rating of the Certificates; (ii) alter the terms on which Call
Warrants are exercisable or the amounts payable upon exercise of a
Warrant without the consent of the holders of Certificates evidencing
not less than 100% of the aggregate Voting Rights of such affected
Certificates and 100% of the affected Warrant Holders or (iii) reduce
the percentage of aggregate Voting Rights required by (i) or (ii)
without the consent of the holders of all such affected Certificates.
Notwithstanding any other provision of this Warrant, this Section 6.4(b)
shall not be amended without the consent of 100% of the affected Warrant
Holders.
(c) Promptly after the execution of any such amendment or
modification, the Warrant Agent shall furnish a copy of such amendment
or modification to each Warrant Holder, to the Trustee and to the Rating
Agencies. It shall not be necessary for the consent of Warrant Holders
or holders of Certificates under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining
such consents and of evidencing the authorization of the execution
thereof shall be subject to such reasonable regulations as the Warrant
Agent may prescribe.
Section 6.5 Expiration. The right to exercise the Call Warrants
shall expire on the earliest to occur of (a) the cancellation thereof, (b)
the termination of the Trust Agreement, or (c) the liquidation, disposition,
or maturity of all of the Underlying Securities.
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Section 6.6 Descriptive Headings. The headings in this Warrant Agent
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 6.7 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial
proceeding brought against the Trust, the Trustee or the Warrant Agent with
respect to this Warrant Agent Agreement may be brought in any court of
competent jurisdiction in the County of New York, State of New York or of the
United States of America for the Southern District of New York and, by
execution and delivery of the Call Warrants, the Trustee on behalf of the
Trust and the Warrant Agent (a) accept, generally and unconditionally, the
nonexclusive jurisdiction of such courts and any related appellate court, and
irrevocably agree that the Trust, the Trustee and the Warrant Agent shall be
bound by any judgment rendered thereby in connection with this Warrant Agent
Agreement or the Call Warrants, subject to any rights of appeal, and (b)
irrevocably waive any objection that the Trust, the Trustee or the Warrant
Agent may now or hereafter have as to the venue of any such suit, action or
proceeding brought in such a court or that such court is an inconvenient
forum.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the
Warrant Holder by its acceptance thereof, and (ii) the Warrant Agent agrees,
that it shall not (and, in the case of the Warrant Holder, that it shall not
direct the Warrant Agent to), until the date which is one year and one day
after the payment in full of the Certificates and all other securities issued
by the Trust, the Depositor or entities formed, established or settled by the
Depositor, acquiesce, petition or otherwise invoke or cause the Trust, the
Depositor, or any such other entity to invoke the process of the United
States of America, any State or other political subdivision thereof or any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government for the purpose of
commencing or sustaining a case by or against the Trust, the Depositor or any
such other entity under a federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust, the Depositor or any
such other entity or all or any part of the property or assets of Trust, the
Depositor or any such other entity or ordering the winding up or liquidation
of the affairs of the Trust, the Depositor or any such other entity.
B-12
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
XXXXXX ABS CORPORATION,
as Depositor
By:
---------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee and Authenticating Agent
By:
---------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:
Name:
Title:
B-13
EXHIBIT C
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
and
ACCREDITED INVESTOR
[DATE]
U.S. Bank Trust National Association,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.,
as Initial Purchaser
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation,
as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $___________ aggregate
notional amount of [Class A-2A]/[Class A-2B] Certificates (the "Certificates")
representing an interest in the Corporate Backed Trust Certificates,
Xxxxxxx-Xxxxx Squibb Debenture-Backed Series 2002-18 Trust (the "Trust"), the
undersigned, by executing this letter (the "Purchaser") confirms that:
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Standard Terms for Trust
Agreements, dated as of January 16, 2001, by and between the Xxxxxx ABS
Corporation, as depositor, and U.S. Bank Trust National Association, as
trustee (the "Standard Terms"), as supplemented by the Series Supplement,
dated October 31, 2002, in respect of the Trust (the "Series Supplement" and
together with the Standard Terms, the "Trust Agreement"). The Purchaser has
received copies of such information as the Purchaser deems necessary in order
to make its investment decision and the Purchaser has been provided the
opportunity to ask questions of, and receive answers from, the Depositor and
the Initial Purchaser, concerning the terms and conditions of the
Certificates. The Purchaser has received and understands the information
discussed above and understands that substantial risks are involved in an
investment in the Certificates. The Purchaser represents that, in making its
investment decision to acquire the Certificates, the Purchaser has not relied
on representations, warranties, opinions, projections, financial or other
information or analysis, if any, supplied to it by any person or entity,
including the Initial Purchaser, the Depositor or the
C-1
Trustee or any of their affiliates. 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 Certificates, and the Purchaser
is able to bear the substantial economic risks of such an investment. The
Purchaser has relied upon its own tax, legal and financial advisors in
connection with its decision to purchase the Certificates.
(b) The Purchaser is not an not an "affiliate" (as defined in Rule 144
under the Securities Act) of the Depositor and is either:
(i) (A) a "Qualified Institutional Buyer" (as defined in Rule 144A
under the Securities Act of 1933, as amended (the "1933 Act" and "Rule
144A")) and has delivered to you the certification contained herein as
to the fact that it is a Qualified Institutional Buyer and (B) acquiring
the Certificates for its own account or for the account of an investor
of the type described in clause (A) above as to each of which the
Purchaser exercises sole investment discretion. The Purchaser is aware
that the Certificates are being sold to it in reliance on the exemption
from the provisions of Section 5 of the 1933 Act provided by Rule 144A.
The Purchaser is purchasing the Certificates for investment purposes and
not with a view to, or for, the offer or sale in connection with a
public distribution or in any other manner that would violate the 1933
Act or the securities or blue sky laws of any state of the United
States; or
(ii) an Accredited Investor and, if the Certificates are to be
purchased for one or more accounts ("investor accounts") for which it is
acting as fiduciary or agent, each such investor account is an
Accredited Investor on a like basis; in the normal course of its
business, such purchaser invests in or purchases securities similar to
the Certificates and such purchaser has such knowledge and experience in
financial and business matters that such purchaser is capable of
evaluating the merits and risks of purchasing any of the Certificates
and such purchaser is aware that such purchaser (or any such investor
account) may be required to bear the economic risk of an investment in
the Certificates for an indefinite period of time and such purchaser (or
such investor account) is able to bear such risk for an indefinite
period.
(c) The Purchaser understands that the Certificates are being offered
in a transaction not involving any public offering in the United States
within the meaning of the 1933 Act, that the Certificates have not been and
will not be registered under the 1933 Act or under the securities or blue sky
laws of any state, and that (i) if in the future it decides to offer, resell,
pledge or otherwise transfer the Certificates, such Certificates shall only
be offered, resold, assigned or otherwise transferred (A) to the Trust, (B)
pursuant to an effective registration statement under the Securities Act, (C)
to a QIB, in accordance with Rule 144A or (D) pursuant to another available
exemption from registration provided under the Securities Act (including any
transfer to an Accredited Investor), and, in each of cases (A) through (D),
in accordance with any applicable securities laws of any state of the United
States and other jurisdictions and (ii) the purchaser will, and each
subsequent holder is required to, notify any subsequent purchaser of such
Certificates from it of the resale restrictions referred to in clause (i)
above.
(d) The Purchaser understands that each Certificate will, unless
otherwise agreed to by the Depositor and the Trustee, bear a legend
substantially to the following effect:
C-2
"THIS CERTIFICATE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN
EXEMPTION THEREFROM UNDER SUCH ACT. THE CERTIFICATE REPRESENTED
HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE
SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CERTIFICATE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS CERTIFICATE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER."
(e) The Purchaser understands that no subsequent transfer of the
Certificates is permitted unless (A) such transfer is of a Certificate with a
denomination of at least $100,000 and (B) it causes its proposed transferee
to provide to the Trustee and the Initial Purchaser a letter substantially in
the form of Exhibit C to the Series Supplement and otherwise satisfactory to
the Trustee and Initial Purchaser, as applicable, or such other written
statement as the Depositor shall prescribe.
(f) The Purchaser agrees that, if at some time in the future it wishes
to transfer or exchange any of the Certificates, it will not transfer or
exchange any of the Certificates unless such transfer or exchange is in
accordance with Section 5.04 of the Trust Agreement. The Purchaser
understands that any purported transfer of the Certificates (or any interest
therein) in contravention of any of the restrictions and conditions in the
Trust Agreement, as applicable, shall be void, and the purported transferee
in such transfer shall not be recognized by the Trust or any other Person as
a Certificateholder, as the case may be, for any purpose.
C-3
(g) The purchaser (i) acknowledges that the Depositor, the Initial
Purchaser, the Trustee and others will rely upon the truth and accuracy of
the foregoing acknowledgments, representations and agreements and agrees that
the Depositor, the Initial Purchaser, the Trustee are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby, and (ii) agrees that, if any of the acknowledgments,
representations, warranties and agreements made or deemed to have been made
by such purchaser's purchase of the Certificates are no longer accurate, such
purchaser shall promptly notify the Depositor and the Initial Purchaser. If
the purchaser is acquiring any Certificates as a fiduciary or agent for one
or more investor accounts, it represents that it has sole investment
discretion with respect to each such account and it has full power to make
the foregoing acknowledgments, representations and agreements on behalf of
each such account and that each such investor account is eligible to purchase
the Certificates.
Very truly yours,
By:
----------------------------------
Name:
Title:
