Exhibit 4.1
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
CORNING DEBENTURE-BACKED SERIES 2001-35 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of September 21, 2001
TABLE OF CONTENTS
Page
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Section 1. Incorporation of Standard Terms ................................ 1
Section 2. Definitions .................................................... 1
Section 3. Designation of Trust and Certificates .......................... 7
Section 4. Trust Certificates ............................................. 8
Section 5. Distributions .................................................. 8
Section 6. Trustee's Fees ................................................. 10
Section 7. Optional Exchange; Optional Call ............................... 11
Section 8. Notices of Events of Default ................................... 13
Section 9. Miscellaneous .................................................. 13
Section 10. Governing Law ................................................. 16
Section 11. Counterparts .................................................. 16
Section 12. Termination of the Trust ...................................... 16
Section 13. Sale of Underlying Securities; Optional Exchange .............. 16
Section 14. Amendments .................................................... 16
Section 15. Voting of Underlying Securities, Modification of Indenture .... 17
Section 16. Additional Depositor Representation ........................... 18
SCHEDULE I SERIES 2001-35 UNDERLYING SECURITIES SCHEDULE
SCHEDULE II CLASS A-2 CERTIFICATE CALL SCHEDULE
EXHIBIT A-1 FORM OF TRUST CERTIFICATE CLASS A-1
EXHIBIT A-2 FORM OF TRUST CERTIFICATE CLASS A-2
EXHIBIT B FORM OF WARRANT AGENT AGREEMENT
EXHIBIT C FORM OF INVESTMENT LETTER
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
CORNING DEBENTURE-BACKED SERIES 2001-35 TRUST
SERIES SUPPLEMENT, Series 2001-35, dated as of September 21, 2001 (the
"Series Supplement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated herein (the
"Trust") by executing and delivering this Series Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
January 16, 2001 (the "Standard Terms"; together with this Series Supplement,
the "Trust Agreement"), by and between the Depositor and the Trustee, as
modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit 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 (the "Certificates") evidencing undivided interests in the
Trust; and
WHEREAS, the Trustee has joined in the execution of the Standard Terms and
this Series Supplement to evidence the acceptance by the Trustee of the Trust;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants expressed herein, it is hereby agreed by and between the Depositor and
the Trustee as follows:
Section 1. INCORPORATION OF STANDARD TERMS. Except as otherwise provided
herein, all of the provisions of the Standard Terms are hereby incorporated
herein by reference in their entirety, and this Series Supplement and the
Standard Terms shall form a single agreement between the parties. In the event
of any inconsistency between the provisions of this Series Supplement and the
provisions of the Standard Terms, the provisions of this Series Supplement will
control with respect to the Corning Debenture-Backed Series 2001-35 Certificates
and the transactions described herein.
Section 2. DEFINITIONS. (a) Except as otherwise specified herein or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below for all purposes under this Series Supplement. (Section
2(b) below sets forth terms listed in the Standard Terms which are not
applicable to this Series.) Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Standard Terms.
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"Accreted Principal Amount" for the Class A-2 Certificates means for each
six month period from and including each date specified in Schedule II hereof to
but excluding the next such date, the amount specified in Schedule II as the
"Ending Balance" for such beginning date.
"Available Funds" shall have the meaning specified in the Standard Terms,
except that 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.
"Call Date" shall mean any Business Day on or after September 21, 2006, or
after the announcement of any unscheduled payment on the Underlying Securities
on which the Call Warrants are exercised and the proceeds of an Optional Call
are distributed to holders of the Certificates pursuant to Section 7 hereof.
"Call 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, the par value 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 being purchased pursuant to the exercise of
the Call Warrants, the Accreted Principal Amount of the Class A-2 Certificates.
"Call Request" shall have the meaning specified in Section 7(b) hereof.
"Call Warrants" shall have the meaning specified in Section 3 hereof.
"Certificate Account" shall have the meaning specified in the Standard
Terms.
"Certificate Principal Amount" shall have the meaning specified in Section
3 hereof.
"Certificates" shall have the meaning specified in Section 3 hereof.
"Class A-1 Allocation" shall mean the sum of the present values (discounted
at the rate of 8.00% per annum) of (i) any unpaid interest due or to become due
on the Class A-1 Certificates and (ii) the outstanding principal amount of the
Class A-1 Certificates (in each case assuming that the Class A-1 Certificates
were paid when due and were not redeemed 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
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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 8.00% per annum) of any unpaid amounts due or to become due on the Class A-2
Certificates (assuming that the Class A-2 Certificates were paid when due and
were not redeemed prior to their stated maturity).
"Class A-2 Certificates" shall mean the Certificates, in the form attached
hereto as Exhibit A-2, to be issued by the Trust representing a proportionate
undivided beneficial ownership interest in certain distributions to be made by
the Trust and having the characteristics described herein and in the
Certificates.
"Closing Date" shall mean September 21, 2001.
"Collection Period" shall mean, (i) with respect to each September
Distribution Date, the period beginning on the day after the March Distribution
Date and ending on such September Distribution Date, inclusive and, (ii) with
respect to each March Distribution Date, the period beginning on the day after
the September Distribution Date of the prior year and ending on such March
Distribution Date of the following year, inclusive; provided, however, that
clauses (i) and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank Trust National
Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
"Depository" shall mean The Depository Trust Company.
"Distribution Date" shall mean September 1st and March 1st of each year (or
if such date is not a Business Day, the next succeeding Business Day),
commencing on March 1, 2002 and ending on the earlier of the Final Scheduled
Distribution Date and any date on which Underlying Securities are redeemed
pursuant to the Indenture.
"Eligible Account" shall have the meaning specified in the Standard Terms.
"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.
"Extraordinary Trust Expenses" shall have the meaning specified in the
Standard Terms.
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"Final Scheduled Distribution Date" shall mean March 1, 2029.
"Indenture" shall mean the indenture 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 September 21, 2001) to but excluding
the current Distribution Date.
"Liquidation Price" shall mean the price at which the Trustee sells the
Underlying Securities.
"Liquidation Proceeds" shall have the meaning specified in the Standard
Terms.
"Maturity Date" shall have the meaning specified in Schedule I hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Optional Call" shall mean the call of the Certificates by the Warrant
Holder, in whole or in part, resulting from the exercise of Call Warrants by the
Warrant Holder, pursuant to Section 7(b) 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 Distribution 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.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated
September 10, 2001, relating to the Certificates, as supplemented.
"Rating Agency" shall mean Moody's and S&P.
"Rating Agency Condition" shall have the meaning specified in the Standard
Terms.
"Record Date" shall mean, with respect to each Distribution Date, the day
immediately preceding the related Distribution Date.
"Required Interest" shall have the meaning specified in the Standard Terms.
"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
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Certificates pursuant to the Standard Terms, in which case 66-2/3% of the
Certificate Principal Amount of such Class.
"Required Percentage-Direction of Trustee" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Remedies" shall be 66-2/3% of the aggregate Voting
Rights.
"Required Percentage-Removal" shall be 66-2/3% of the aggregate Voting
Rights.
"Required Rating" shall mean, in the case of Moody's, the rating assigned
to the Underlying Securities by Moody's as of the Closing Date, and, in the case
of S&P, the rating assigned to the Underlying Securities by S&P as of the
Closing Date.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Series" shall mean Corning Debenture-Backed Series 2001-35.
"Trustee Fee" shall mean the amount paid to the Trustee by the Depositor on
the Closing Date.
"Trust Property" shall mean the Underlying Securities described on Schedule
I hereto and the Certificate Account.
"Underlying Securities" shall mean $29,430,000 aggregate principal amount
of 6.85% Debentures due March 1, 2029 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 Corning Incorporated and any
successor in respect of the Underlying Securities.
"Underlying Securities Trustee" shall mean United States Trust Company of
New York.
"Underwriters" shall mean Xxxxxx Brothers Inc., an affiliate of the
Depositor, Prudential Securities Incorporated and Xxxxxxx Xxxxx & Associates,
Inc.
"Voting Rights" shall, in the entirety, be allocated among all Class A-1
Certificateholders and Class A-2 Certificateholders in proportion to the then
unpaid principal amounts of their respective Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust National Association.
"Warrant Agent Agreement" shall mean that certain Warrant Agent Agreement,
dated as of the date hereof, between the Depositor and U.S. Bank Trust National
Association, as Warrant Agent and as Trustee, as the same may be amended from
time to time.
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"Warrant Holder" shall mean the holder of a Call Warrant.
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Calculation Agent"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
"Cut-off Date"
"Eligible Expense"
"Eligible Investment"
"Exchange Rate Agent"
"Fixed Pass-Through Rate"
"Floating Pass-Through Rate"
"Guaranteed Investment Contract"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Notional Amount"
"Pass-Through Rate"
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"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. DESIGNATION OF TRUST AND CERTIFICATES. The Trust created hereby
shall be known as the "Corporate-Backed Trust Certificates, Corning
Debenture-Backed Series 2001-35 Trust." The Certificates evidencing certain
undivided ownership interests therein shall be known as "Corporate Backed Trust
Certificates, Corning Debenture-Backed Series 2001-35." The Certificates shall
consist of the Class A-1 Certificates and the Class A-2 Certificates (together,
the "Certificates"). The Trust is also issuing call warrants with respect to the
Certificates ("Call Warrants").
(a) The Certificates shall be held through the Depository in book-entry
form and shall be substantially in the forms attached hereto as Exhibits A-1 and
A-2. The Class A-1 Certificates shall be issued in denominations of $25. The
Class A-2 Certificates shall be issued in minimum denominations of $1,000 and
integral multiples of $1 in excess thereof. Except as
7
provided in the Standard Terms and in paragraph (d) in this Section, the Trust
shall not issue additional Certificates or incur any indebtedness.
(b) The Class A-1 Certificates have an initial aggregate certificate
principal amount of $25,199,425, and the Class A-2 Certificates have an initial
aggregate certificate principal amount of $4,230,575 (each, a "Certificate
Principal Amount").
(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 8.00% per annum
on the outstanding Certificate Principal Amount of the Class A-1 Certificates.
The Class A-2 Certificates shall not bear interest. On March 1, 2002, the
Trustee will pay to the Depositor the amount of interest accrued and paid on the
Underlying Securities from September 1, 2001, to but not including the Closing
Date. If Available Funds are insufficient to pay such amount, the Trustee will
pay the Depositor its pro rata share, based on the ratio the amount owed to the
Depositor bears to all amounts owed on the Class A-1 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 and
upon (i) satisfaction of the Rating Agency Condition and (ii) delivery of an
Opinion of Counsel to the effect that the sale of such additional Underlying
Securities will not materially increase the likelihood that the Trust would fail
to qualify as a grantor trust under the Code. Upon such sale to the Trustee, the
Trustee shall deposit such additional Underlying Securities in the Certificate
Account, and shall authenticate and deliver to the Depositor, on its order,
Class A-1 Certificates and Class A-2 Certificates in the same proportion as the
original Class A-1 Certificates and Class A-2 Certificates, with an aggregate
Certificate Principal Amount equal to the principal amount of such additional
Underlying Securities, and the Call Warrants related thereto. Any such
additional Class A-1 Certificates and Class A-2 Certificates authenticated and
delivered shall have the same terms and rank pari passu with the corresponding
classes of Certificates previously issued in accordance with this Series
Supplement.
(e) As a condition precedent for transferring the Call Warrants, the
prospective transferee shall be required to deliver to the Trustee and the
Depositor an executed copy of the Investment Letter (set forth in Exhibit C
hereto).
Section 4. TRUST CERTIFICATES. The Trustee hereby acknowledges receipt, on
or prior to the Closing Date, of:
(i) the Underlying Securities set forth on the Underlying Securities
Schedule; and
(ii) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Standard Terms.
Section 5. DISTRIBUTIONS. (a) Except as otherwise provided in Section 3(c),
on each applicable Distribution Date, the Trustee shall apply Available Funds in
the Certificate Account as follows in the following order of priority:
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(i) the Trustee will pay the interest portion of Available Funds (subject
to Section 5(b) below):
(a) 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
(b) second, to the holders of the Class A-1 Certificates, as interest
at the rate of 8.00% per annum on the principal amount of the Class
A-1 Certificates.
(ii) the Trustee will pay the principal portion of Available Funds:
(a) 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
(b) second, to the holders of the Class A-1 Certificates and the Class
A-2 Certificates, the remaining available principal portion of
Available Funds (in an aggregate amount not to exceed the outstanding
principal amount of the Class A-1 Certificates and the Class A-2
Certificates) pro rata in the proportion that the outstanding
principal amount of the Class A-1 Certificates bears to the
outstanding principal amount of the Class A-2 Certificates, until the
aggregate Certificate Principal Amounts of such Certificates are paid
in full.
(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, any remainder 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 principal
balances.
(b) Notwithstanding any other provision hereof (other than Section 3(c)) if
the Underlying Securities are redeemed, prepaid or liquidated in whole or in
part for any reason other than due to the occurrence of an 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(f) 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;
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(ii) second, to the holders of the Class A-1 Certificates, an amount equal
to any accrued and unpaid interest thereon;
(iii) third, to the holders of the Class A-1 Certificates and Class A-2
Certificates, pro rata in the proportion that the outstanding
principal amount of the Class A-1 Certificates bears to the
outstanding principal amount of the Class A-2 Certificates; and
(iv) fourth, to the Trustee, as reasonable compensation for services
rendered to the Depositor, any remainder up to $1,000.
(c) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part due to the occurrence of an
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.
(d) Unless otherwise instructed by holders of Certificates representing a
majority of the Voting Rights, thirty (30) days after giving notice pursuant to
Section 8 hereof, the Trustee shall sell the Underlying Securities pursuant to
Section 13 hereof and deposit the Liquidation Proceeds, if any, into the
Certificate Account for distribution not later than two (2) Business Days after
the receipt of immediately available funds in accordance with Section 5(b)
hereof.
(e) 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. Such notice shall state that the Trustee shall and the
Trustee shall, not later than 30 days after the receipt of such property,
allocate and distribute such property to the holders of Class A-1 Certificates
and Class A-2 Certificates then outstanding and unpaid, pro rata by principal
amount (after deducting the costs incurred in connection therewith) in
accordance with Section 5(b) 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 will be deemed to
reduce the principal amount of Certificates on a dollar-for-dollar basis.
(f) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any required distributions due to any class of Certificates
on any Distribution Date, any shortfall will be carried over and will be
distributed on the next Distribution Date (or date referred to in Section 5(g)
hereof) on which sufficient funds are available to pay such shortfall.
(g) If a payment with respect to the Underlying Securities is made to the
Trustee (i) after the payment date of the Underlying Securities on which such
payment was due or (ii) after the Underlying Securities are redeemed, prepaid or
liquidated in whole or in part for any reason other than due to the occurrence
of an Event of Default or at their maturity, then the Trustee will distribute
any such amounts received on the next occurring Business Day (a "Special
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Distribution Date") as if the funds had constituted Available Funds on the
Distribution Date immediately preceding such Special Distribution Date;
provided, however, that the Record Date for such Special Distribution Date shall
be five Business Days prior to the day on which the related payment was received
from the Underlying Securities Trustee.
(h) Notwithstanding Section 3.12 of the Standard Terms, if the Underlying
Securities Issuer ceases to file the periodic reports required under the
Exchange Act, the Depositor shall within a reasonable period of time instruct
the Trustee to sell the Underlying Securities and allocate the proceeds of such
sale in the following order of priority: (i) to the Trustee, reimbursement for
any remaining extraordinary expenses incurred by the Trustee pursuant to the
instructions of all the certificateholders and (ii) to the holders of the Class
A-1 Certificates and the Class A-2 Certificates in accordance with the ratio of
the Class A-1 Allocation to the Class A-2 Allocation; provided, however, the
Depositor shall not instruct the Trustee to distribute or sell the Underlying
Securities pursuant to this clause unless the Underlying Securities Issuer has
either (x) stated in writing that it intends permanently to cease filing reports
required under the Exchange Act or (y) failed to file any required reports for
one full calendar year.
Section 6. TRUSTEE'S FEES.
(a) As compensation for its services hereunder, the Trustee shall be
entitled to the Trustee Fee and any amount payable under clause 5(a)(iii) or
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 EXCHANGE; OPTIONAL CALL.
(a) (i) On any Distribution Date, any holder of Class A-1 Certificates and
Class A-2 Certificates and the related Call Warrants, if Call Warrants related
to such Certificates are outstanding, may exchange such Certificates and, if
applicable, Call Warrants, for a distribution of Underlying Securities
representing the same percentage of the Underlying Securities as such
Certificates represent of all outstanding Certificates.
(ii) The following conditions shall apply to any Optional Exchange.
(a) A notice specifying the number of Certificates being
surrendered and the Optional Exchange Date shall be delivered to
the Trustee no less than
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5 days (or such shorter period acceptable to the Trustee) but not
more than 30 days before the Optional Exchange Date.
(b) 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.
(c) Class A-1 Certificates and Class A-2 Certificates
representing a like percentage of all Class A-1 Certificates and
Class A-2 Certificates shall be surrendered.
(d) The Trustee shall have received an opinion of counsel stating
that the Optional Exchange would not affect the characterization
of the Trust as a "grantor trust" for federal income tax
purposes.
(e) 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 Underwriter
but never distributed to investors) of the then outstanding
Certificates.
(iii) The Trustee shall not be obligated to determine whether an
Optional Exchange complies with the applicable provisions for
exemption under Rule 3a-7 of the Investment Company Act of 1940,
as amended, or the rules or regulations promulgated thereunder.
(iv) The provisions of Section 4.07 of the Standard Terms shall not
apply to an Optional Exchange pursuant to this Section 7(a). This
Section 7(a) shall not provide any person with a lien against, an
interest in or a right to specific performance with respect to
the Underlying Securities.
(b) (i) Concurrently with the execution of this Series Supplement, the
Trustee, on behalf of the Trust, shall execute the Warrant Agent Agreement and
the Call Warrants, dated as of the date hereof and substantially in the 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.
(ii) 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.
(a) An opinion of counsel to the Warrant Holder shall have been
delivered to the Trustee, in form satisfactory to the Trustee,
indicating that payment of the Call Price shall not be
recoverable as a preferential transfer or
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fraudulent conveyance under the United States Bankruptcy Code.
Such opinion may contain customary assumptions and
qualifications.
(b) 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
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, 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.
(v) Subject to receipt of the Call Price, the Trustee shall pay the
Call Price to the Certificateholders on the Call Date. The Call
Price for 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 alter
the timing or amount of any payment of the Call Price without the
prior written consent of 100% of the Warrant Holders.
(vii) The Trustee shall not be obligated to determine whether an
Optional Call complies with the applicable provisions for
exemption under Rule 3a-7 of the Investment Company Act of 1940,
as amended, or the rules or regulations promulgated thereunder.
(viii) This Section 7 shall not provide the Warrant Holder with a lien
against, an interest in or a right to specific performance with
respect to the Underlying Securities.
(ix) The Warrant Holder shall initially be the Depositor.
Section 8. 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. 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.
13
Section 9. MISCELLANEOUS.
(a) The provisions of Section 4.04, Advances, of the Standard Terms shall
not apply to the Corning Debenture-Backed Series 2001-35 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Corning Debenture-Backed Series 2001-35
Certificates.
(c) The Trustee shall simultaneously forward reports to Certificateholders
pursuant to Section 4.03 of the Standard Terms and to the New York Stock
Exchange.
(d) Except as expressly provided herein, the Certificateholders shall not
be entitled to terminate the Trust or cause the sale or other disposition of the
Underlying Securities.
(e) The provisions of Section 3.07(d) of the Standard Terms shall not apply
to the Corning Debenture-Backed Series 2001-35 Certificates.
(f) If the Trustee has not received payment with respect to a Collection
Period on the Underlying Securities on or prior to the related Distribution
Date, such distribution will be made promptly upon receipt of such payment. No
additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Class A-1 Certificateholders pro rata
in proportion to their respective entitlements to interest.
(g) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Losses (as defined in the Standard Terms).
(h) The Trust may not engage in any business or activities other than in
connection with, or relating to, the holding, protecting and preserving of the
Trust Property and the issuance of the Certificates, and other than those
required or authorized by the Trust Agreement or incidental and necessary to
accomplish such activities. The Trust may not issue or sell any certificates or
other obligations other than the Certificates or otherwise incur, assume or
guarantee any indebtedness for money borrowed. Notwithstanding Section 3.05 of
the Standard Terms, funds on deposit in the Certificate Account shall not be
invested.
(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.
(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.
14
(l) In relation to Section 7.01(f) of the Standard Terms, any periodic
reports filed by the Trustee pursuant to the Exchange Act in accordance with the
customary practices of the Depositor, need not contain any independent reports.
(m) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee will have no recourse to the Underlying Securities.
(n) [Reserved].
(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
Xxx Xxxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
15
and to:
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 10. GOVERNING LAW. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS PROVISIONS
THEREOF.
Section 11. COUNTERPARTS. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one and the same instrument.
Section 12. TERMINATION OF THE TRUST. The Trust shall terminate upon the
earliest to occur of (i) the payment in full at maturity or sale by the Trust
after a payment default 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(c) 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
16
thereof, Xxxxxx Brothers Inc. The Trustee shall not be responsible for the
failure to obtain a bid so long as it has made reasonable efforts to obtain
bids. If a bid for the sale of the Underlying Securities has been accepted by
the Trustee but the sale has failed to settle on the proposed settlement date,
the Trustee shall request new bids from such leading dealers. In the event of an
Optional Exchange, the Trustee shall only deliver the Underlying Securities to
the purchaser of such Underlying Securities or sell the Underlying Securities
pursuant to this Section 13, as the case may be, against payment in same day
funds deposited into the Certificate Account.
Section 14. AMENDMENTS. Notwithstanding anything in the Trust Agreement to
the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall not enter into any amendment or
modification of the Trust Agreement which would adversely affect in any material
respect the interests of the holders of any class of Certificates without the
consent of the holders of 100% of such class of Certificates; provided, however,
that no such amendment or modification will be permitted which would alter the
status of the Trust as a grantor trust for federal income tax purposes. Further,
no amendment shall be permitted which would adversely affect in any material
respect the interests of any Class of Certificateholders without confirmation by
each Rating Agency that such amendment will not result in a downgrading or
withdrawal of its rating of such class of Certificates.
Section 15. VOTING OF UNDERLYING SECURITIES, MODIFICATION OF INDENTURE. The
Trustee, as holder of the Underlying Securities, has the right to vote and give
consents and waivers in respect of the Underlying Securities as permitted by the
Depository and except as otherwise limited by the Trust Agreement. In the event
that the Trustee receives a request from the Depository, the Underlying
Securities Trustee or the Underlying Securities Issuer for its consent to any
amendment, modification or waiver of the Underlying Securities, the Indenture or
any other document thereunder or relating thereto, or receives any other
solicitation for any action with respect to the Underlying Securities, the
Trustee shall mail a notice of such proposed amendment, modification, waiver or
solicitation to each Certificateholder of record as of such date. The Trustee
shall request instructions from the Certificateholders as to whether or not to
consent to or vote to accept such amendment, modification, waiver or
solicitation. The Trustee shall consent or vote, or refrain from consenting or
voting, in the same proportion (based on the relative outstanding principal
balances of the Certificates) as the Certificates of the Trust were actually
voted or not voted by the Certificateholders thereof as of a date determined by
the Trustee prior to the date on which such consent or vote is required;
provided, however, that, notwithstanding anything in the Trust Agreement to the
contrary, the Trustee shall at no time vote on or consent to any matter (i)
unless such vote or consent would not (based on an opinion of counsel) alter the
status of the Trust as a grantor trust for federal income tax purposes or result
in the imposition of tax upon the Certificateholders, (ii) which would alter the
timing or amount of any payment on the Underlying Securities, including, without
limitation, any demand to accelerate the Underlying Securities, except in the
event of a default under the Underlying Securities or an event which with the
passage of time would become an event of default under the Underlying Securities
and with the unanimous consent of all outstanding Class A-1 Certificateholders
and the Class A-2 Certificateholders, or (iii) which would result in the
exchange or substitution of any of the outstanding Underlying Securities
pursuant to a plan for the refunding or refinancing of such Underlying
Securities except in the event of a default under the Indenture and only with
the consent of Certificateholders representing 100% of the Class A-1
Certificates and 100% of the Class A-2 Certificates. The Trustee shall have no
liability for any
17
failure to act resulting from Certificateholders' late return of, or failure to
return, directions requested by the Trustee from the Certificateholders.
In the event that an offer is made by the Underlying Securities Issuer to
issue new obligations in exchange and substitution for any of the Underlying
Securities, pursuant to a plan for the refunding or refinancing of the
outstanding Underlying Securities or any other offer is made for the Underlying
Securities, the Trustee shall notify the Class A-1 Certificateholders and Class
A-2 Certificateholders of such offer promptly. The Trustee must reject any such
offer unless the Trustee is directed by the affirmative vote of the holders of
100% of the Class A-1 Certificates and Class A-2 Certificates to accept such
offer and the Trustee has received the tax opinion described above. If pursuant
to the preceding sentence, the Trustee accepts any such offer the Trustee shall
promptly notify the Rating Agencies.
If an event of default under the Indenture occurs and is continuing, and if
directed by a majority of the outstanding Class A-1 Certificateholders and Class
A-2 Certificateholders, the Trustee shall vote the Underlying Securities in
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,
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.
18
(iv) Depositor has received all consents and approvals required by the
terms of the Underlying Securities to the transfer to the Trustee
of its interest and rights in the Underlying Securities as
contemplated by the Trust Agreement.
(v) Depositor has taken all steps necessary to cause the Trustee, as
securities intermediary for the Securities Account, to identify
on its records that the Trustee, as the trustee of the Trust, is
the Person having a security entitlement against the securities
intermediary in the Securities Account.
(vi) Depositor has not assigned, pledged, sold, granted a security
interest in or otherwise conveyed any interest in the Underlying
Securities (or, if any such 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.
19
IN WITNESS WHEREOF, the parties hereto have caused this Series Supplement
to be duly executed by their respective authorized officers as of the date first
written above.
XXXXXX ABS CORPORATION,
as Depositor
By:
-----------------------------------------------
Name: 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
Corning Debenture-Backed Series 2001-35
Trust
By:
-----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President and Assistant Secretary
20
SCHEDULE I
SERIES 2001-35
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 6.85% Debentures due March 1, 2029.
Underlying Securities Issuer: Corning Incorporated.
CUSIP Number: 219350 AH 8.
Principal Amount Deposited: $29,430,000.
Original Issue Date: March 3, 1999.
Principal Amount of
Underlying Securities
Originally Issued: $150,000,000.
Maturity Date: March 1, 2029.
Principal Payment Date: March 1, 2029.
Interest Rate: 6.85% per annum.
Interest Payment Dates: March 1st and September 1st.
I-1
SCHEDULE II
CLASS A-2 CERTIFICATE CALL SCHEDULE
Date Ending Balance Value
9/21/2006 $473,406
3/1/2007 $494,389
9/1/2007 $519,108
3/1/2008 $545,064
9/1/2008 $572,317
3/1/2009 $600,933
9/1/2009 $630,979
3/1/2010 $662,528
9/1/2010 $695,655
3/1/2011 $730,438
9/1/2011 $766,960
3/1/2012 $805,307
9/1/2012 $845,573
3/1/2013 $887,851
9/1/2013 $932,244
3/1/2014 $978,856
9/1/2014 $1,027,799
3/1/2015 $1,079,189
9/1/2015 $1,133,148
3/1/2016 $1,189,806
9/1/2016 $1,249,296
3/1/2017 $1,311,761
9/1/2017 $1,377,349
3/1/2018 $1,446,217
9/1/2018 $1,518,527
3/1/2019 $1,594,454
9/1/2019 $1,674,176
3/1/2020 $1,757,885
9/1/2020 $1,845,779
3/1/2021 $1,938,068
9/1/2021 $2,034,972
3/1/2022 $2,136,720
9/1/2022 $2,243,557
3/1/2023 $2,355,734
9/1/2023 $2,473,521
3/1/2024 $2,597,197
9/1/2024 $2,727,057
3/1/2025 $2,863,410
9/1/2025 $3,006,580
3/1/2026 $3,156,909
9/1/2026 $3,314,755
3/1/2027 $3,480,493
II-1
Date Ending Balance Value
9/1/2027 $3,654,517
3/1/2028 $3,837,243
9/1/2028 $4,029,105
3/1/2029 $4,230,560
II-2
Exhibit A-1
FORM OF CLASS A-1 CERTIFICATE
NUMBER 1 1,007,977 $25 PAR CERTIFICATES
CUSIP NO. 21988G 56 9
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL OWNERSHIP
INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN,
AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
A-1-1
XXXXXX ABS CORPORATION
1,007,977 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
CORNING DEBENTURE-BACKED SERIES 2001-35
8.00% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $29,430,000
aggregate principal amount of 6.85% Debentures due March 1, 2029, issued by
Corning Incorporated (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 $25,199,425
nonassessable, fully-paid, proportionate undivided beneficial ownership interest
in the Corporate Backed Trust Certificates, Corning Debenture-Backed Series
2001-35 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, Series 2001-35, dated as of September 10, 2001 (the
"Series Supplement" and, together with the Standard Terms, the "Trust
Agreement"), between the Depositor and the Trustee. This Certificate does not
purport to summarize the Trust Agreement and reference is hereby made to the
Trust Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee with respect hereto. A copy of the Trust Agreement
may be obtained from the Trustee by written request sent to the Corporate Trust
Office. Capitalized terms used but not defined herein have the meanings assigned
to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as the
"Corporate Backed Trust Certificates, Corning Debenture-Backed Series 2001-35,
Class A-1" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. The Trust Property
consists of: (i) Underlying Securities described in the Trust Agreement; (ii)
all payments on or collections in respect of the Underlying Securities accrued
on or after September 21, 2001 together with any proceeds thereof; and (iii) all
funds from time to time deposited with the Trustee relating to the Certificates,
together with any and all income, proceeds and payments with respect thereto;
provided, however, that any income from the investment of Trust funds in certain
permitted investments ("Eligible Investments") does not constitute Trust
Property.
A-1-2
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, distributions
will be made on each Distribution Date, to the Person in whose name this
Certificate is registered on the applicable Record Date, in an amount equal to
such Certificateholder's proportionate undivided beneficial ownership interest
in the amount required to be distributed to the Holders of the Certificates on
such Distribution Date. The Record Date applicable to any Distribution Date is
the close of business on the day immediately preceding such Distribution Date
(whether or not a Business Day). If a payment with respect to the Underlying
Securities is made to the Trustee after the date on which such payment was due,
then the Trustee will distribute any such amounts received on the next occurring
Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate, covenants and agrees
that such Certificateholder will not at any time institute against the Trust, or
join in any institution against the Trust of, any bankruptcy proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates or the Trust Agreement.
Distributions made on this Certificate will be made as provided in the Trust
Agreement by the Trustee by wire transfer in immediately available funds, or
check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon, except that with respect to Certificates registered on the
Record Date in the name of the nominee of the Clearing Agency (initially, such
nominee shall be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the Corporate Trust Office or such other
location as may be specified in such notice.
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not entitle
the Holder hereof to any benefit under the Trust Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
CORNING DEBENTURE-BACKED
SERIES 2001-35 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
-------------------------------------------
Authorized Signatory
Dated: September 21, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Corning Debenture-Backed
Series 2001-35, described in the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
---------------------------------
Authorized Signatory
A-1-4
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain payments and
collections respecting the Underlying Securities, all as more specifically set
forth herein and in the Trust Agreement. The registered Holder hereof, by its
acceptance hereof, agrees that it will look solely to the Trust Property (to the
extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent of
the Holders of Class A-1 Certificates in the manner set forth in the Series
Supplement and the Standard Terms. Any such consent by the Holder of this
Certificate (or any predecessor Certificate) shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent in made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in denominations of
$25.
As provided in the Trust Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar maintained by the Trustee in
the Borough of Manhattan, the City of New York, duly endorsed by or accompanied
by an assignment in the form below and by such other documents as required by
the Trust Agreement, and thereupon one or more new Certificates of the same
class in authorized denominations evidencing the same principal amount will be
issued to the designated transferee or transferees. The initial Certificate
Registrar appointed under the Trust Agreement is U.S. Bank Trust National
Association.
No service charge will be made for any registration of transfer or exchange, but
the Trustee may require exchange of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the Trust created
thereunder shall constitute a fixed investment trust for federal income tax
purposes under Treasury Regulation Section 301.7701-4, and the Certificateholder
agrees to treat the Trust, any distributions therefrom and 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 other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the exercise
of all outstanding Call
A-1-5
Warrants by the Warrant 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.
An employee benefit plan subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the Code,
an entity whose underlying assets include plan assets by reason of any such
plan's investment in the entity, including an individual retirement account or
Xxxxx plan (any such, a "Plan") may purchase and hold Certificates if the Plan
can represent and warrant that its purchase and holding of the Certificates
would not be prohibited under ERISA or the Code.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ______________________ Attorney to transfer said
Certificate on the books of the Certificate Register, with full power of
substitution in the premises.
Dated:
*
Signature Guaranteed:
*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Signatures must be
guaranteed by an "eligible guarantor institution" meeting the requirements
of the Certificate Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-1-7
Exhibit A-2
FORM OF CLASS A-2 CERTIFICATE
NUMBER 1 $4,230,575
CUSIP NO. 21988G BH 8
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-2 CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
EXCEPT WHILE A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN
EXEMPTION THEREFROM UNDER SUCH ACT. THE CLASS A-2 CERTIFICATE REPRESENTED HEREBY
MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE SERIES SUPPLEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL OWNERSHIP
INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN,
AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
A-2-1
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
CORNING DEBENTURE-BACKED SERIES 2001-35
$4,230,575 PRINCIPAL AMOUNT
evidencing a proportionate undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $29,430,000
aggregate principal amount of 6.85% Debentures due March 1, 2029 of Corning
Incorporated (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 $4,230,575
nonassessable, fully-paid, proportionate undivided beneficial ownership interest
in the Corporate Backed Trust Certificates, Corning Debenture-Backed Series
2001-35 Trust, formed by the Depositor.
A-2-2
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, Series 2001-35, dated as of September 10, 2001 (the
"Series Supplement" and, together with the Standard Terms, the "Trust
Agreement"), between the Depositor and the Trustee. This Certificate does not
purport to summarize the Trust Agreement and reference is hereby made to the
Trust Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee with respect hereto. A copy of the Trust Agreement
may be obtained from the Trustee by written request sent to the Corporate Trust
Office. Capitalized terms used but not defined herein have the meanings assigned
to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as the
"Corporate Backed Trust Certificates, Corning Debenture-Backed Series 2001-35,
Class A-2" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. The Trust Property
consists of: (i) Underlying Securities described in the Trust Agreement; (ii)
all payments on or collections in respect of the Underlying Securities accrued
on or after September 21, 2001 together with any proceeds thereof; and (iii) all
funds from time to time deposited with the Trustee relating to the Certificates,
together with any and all income, proceeds and payments with respect thereto;
provided, however, that any income from the investment of Trust funds in certain
permitted investments ("Eligible Investments") does not constitute Trust
Property.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, no distributions
of interest will be made on this Certificate on any Distribution Date.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, the Trust will
distribute on the Final Scheduled Distribution Date, to the Person in whose name
this Certificate is registered on the applicable Record Date, an amount equal to
such Certificateholder's proportionate undivided beneficial ownership interest
in the amount required to be distributed to the Holders of the Certificates on
such Final Scheduled Distribution Date.
The Record Date applicable to the Final Scheduled Distribution Date is the close
of business on the day immediately preceding such Final Scheduled Distribution
Date (whether or not a Business Day). If a payment with respect to the
Underlying Securities is made to the Trustee after the date on which such
payment was due, then the Trustee will distribute any such amounts received on
the next occurring Business Day (a "Special Distribution Date").
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
A-2-3
similar law in connection with any obligations relating to the Certificates or
the Trust Agreement.
Distributions made on this Certificate will be made as provided in the Trust
Agreement by the Trustee by wire transfer in immediately available funds, or
check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon, except that with respect to Certificates registered on the
Record Date in the name of the nominee of the Clearing Agency (initially, such
nominee shall be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the Corporate Trust Office or such other
location as may be specified in such notice.
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not entitle
the Holder hereof to any benefit under the Trust Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, CORNING DEBENTURE
BACKED SERIES 2001-35 TRUST
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
----------------------------------------
Authorized Signatory
Dated: September 21, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Corning Debenture-Backed
Series 2001-35, described in the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
--------------------------------
Authorized Signatory
A-2-5
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain payments and
collections respecting the Underlying Securities, all as more specifically set
forth herein and in the Trust Agreement. The registered Holder hereof, by its
acceptance hereof, agrees that it will look solely to the Trust Property (to the
extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent of
the holders of Class A-2 Certificates in the manner set forth in the Series
Supplement and the Standard Terms. Any such consent by the Holder of this
Certificate (or any predecessor Certificate) shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent in made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the holders of any of the Certificates.
The Certificates are issuable in fully registered form only in minimum principal
amounts of $1,000 and integral multiples of $1 in excess thereof.
As provided in the Trust Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar maintained by the Trustee in
the Borough of Manhattan, the City of New York, duly endorsed by or accompanied
by an assignment in the form below and by such other documents as required by
the Trust Agreement, and thereupon one or more new Certificates of the same
class in authorized denominations evidencing the same principal amount will be
issued to the designated transferee or transferees. The initial Certificate
Registrar appointed under the Trust Agreement is U.S. Bank Trust National
Association.
No service charge will be made for any registration of transfer or exchange, but
the Trustee may require exchange of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the Trust created
thereunder shall constitute a fixed investment trust for federal income tax
purposes under Treasury Regulation Section 301.7701-4, and the Certificateholder
agrees to treat the Trust, any distributions therefrom and its beneficial
interest in the Certificates consistently with such characterization.
The Trust and the obligations of the Depositor and the Trustee created by the
Trust Agreement with respect to the Certificates shall terminate upon the
earliest to occur of (i) 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
A-2-6
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.
An employee benefit plan subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the Code,
an entity whose underlying assets include plan assets by reason of any such
plan's investment in the entity, including an individual retirement account or
Xxxxx plan (any such, a "Plan") may purchase and hold Certificates if the Plan
can represent and warrant that its purchase and holding of the Certificates
would not be prohibited under ERISA or the Code.
A-2-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ____________________ Attorney to transfer said
Certificate on the books of the Certificate Register, with full power of
substitution in the premises.
Dated:
*
Signature Guaranteed:
*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Signatures must be
guaranteed by an "eligible guarantor institution" meeting the requirements
of the Certificate Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-2-8
EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
Corning Debenture-Backed Series 2001-35 Trust
WARRANT AGENT AGREEMENT, dated as of September 21, 2001 (the "Warrant Agent
Agreement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), 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, Corning
Debenture-Backed Series 2001-35 Trust (the "Trust"), a trust created under the
laws of the State of New York pursuant to a Standard Terms for Trust Agreements,
dated as of January 16, 2001 (the "Agreement"), between Xxxxxx ABS Corporation
(the "Depositor") and U.S. Bank Trust National Association, a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement 2001-35, dated as of
September 21, 2001 (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 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 for all purposes under the Series
Supplement, and as follows:
ARTICLE I
Exercise of Call Warrants
Section 1.1 MANNER OF EXERCISE. (a) Call Warrants may be exercised by any
holder thereof (each, a "Warrant Holder") in whole or in part on any Call Date.
The following conditions shall apply to any exercise of Call Warrants:
(i) A notice (each, a "Call Notice") specifying the number of Call
Warrants being exercised and the Call Date shall be delivered to the
Warrant Agent and the Trustee at least 5 Business Days before such Call
Date.
(ii) The Warrant Holder shall surrender the Call Warrants to the
Warrant Agent at its office specified in Section 6.3 hereof no later than
10:00 a.m. (New York City time) on such Call Date.
(iii) The Warrant Holder shall have made payment to the Warrant Agent,
by wire transfer or other immediately available funds acceptable to the
Warrant Agent, in the amount of the Call Price, no later than 10:00 a.m.
(New York City time) on the Call Date.
(iv) The Warrant Holder shall exercise Call Warrants relating to Class
A-1 Certificates and Call Warrants relating to Class A-2 Certificates which
represent a like percentage of all Class A-1 Certificates and Class A-2
Certificates.
(v) The Warrant Holder may not exercise the Call Warrants at any time
when such Warrant Holder is insolvent, and such Warrant Holder shall be
required to certify that it is solvent at the time of exercise, by
completing the Form of Subscription attached to the Call Warrants and
delivering such completed Form of Subscription to the Trustee on or prior
to the Call Date and by delivering to the Trustee a form reasonably
satisfactory to the Trustee of the opinion and the solvency certificate
required pursuant to Section 7(b)(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 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 Certificate Principal Amount equal
to $1,000 per Call Warrant. Unless otherwise specified therein, such Call Notice
shall be deemed to be notice of an Optional Exchange pursuant to Section 7(a) 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. "Called Underlying Securities" are Underlying Securities which
represent the same percentage of the Underlying Securities as the Called
Certificates represent of the Class A-1 Certificates and Class A-2 Certificates.
(c) The Warrant Agent shall notify the Trustee immediately upon its receipt
of a Call Notice and upon receipt of payment of the Call Price. The Warrant
Agent shall transfer the amount of any paid Call Price to the Trustee in
immediately available funds, for application pursuant to the Trust Agreement on
the applicable Call Date (and, pending such transfer, shall hold such amount for
the benefit of the Warrant Holder in a segregated trust account).
(d) Delivery of a Call Notice does not give rise to an obligation on 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, 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.
2
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 holder's beneficial ownership of such Certificates,
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.
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 shall be issued in lieu thereof. The Warrant
Agent shall destroy all cancelled Call Warrants.
Section 1.4 NO RIGHTS AS HOLDER OF CERTIFICATES CONFERRED BY CALL WARRANTS.
Prior to the exercise thereof, Call Warrants shall not entitle the Warrant
Holder to any of the rights of a holder of the Certificates, including, without
limitation, the right to receive the payment of any amount on or in respect of
the Certificates or to enforce any of the covenants of the Trust Agreement.
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. 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.
3
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 whole numbers of Call Warrants. The Trustee and the Warrant Agent
may treat the Person in whose name any Call Warrant is registered on such
register 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. Upon surrender of any
Call Warrant for registration of transfer or for exchange to the Warrant Agent,
the Warrant Agent shall (subject to compliance with Article II) execute and
deliver, and cause the Trustee, on behalf of the Trust, to execute and deliver,
in exchange therefor, a new Call Warrant of like tenor and evidencing a like
whole number of Call Warrants, in the name of such 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 be required
to deliver to the Trustee and the Depositor an executed copy of the Investment
Letter (set forth as Exhibit C to the Series Supplement).
Section 3.3 REPLACEMENT OF CALL WARRANTS. Upon receipt of evidence
reasonably satisfactory to the Warrant Agent of the loss, theft, destruction or
mutilation of any Call Warrant and, in the case of any such loss, theft or
destruction of any Call Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Warrant Agent may determine, or, in the case of any
such mutilation, upon the surrender of such Call Warrant for cancellation to the
Warrant Agent, the Warrant Agent shall execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a new
Call Warrant of like tenor bearing a number not contemporaneously outstanding.
Section 3.4 EXECUTION AND DELIVERY OF CALL WARRANTS BY TRUSTEE. The
Trustee, on behalf of the Trust, hereby agrees (subject to compliance with
Article II) to execute and deliver such new Call Warrants issued in accordance
with Section 1.2 or this Article III as the Warrant Agent shall request in
accordance herewith.
ARTICLE IV
Definitions
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
"Accreted Principal Amount": For each six month period from and including
each date specified in Schedule II to the Series Supplement to but excluding the
next such date, the amount specified in that Schedule II as the "Ending Balance"
for such beginning date.
"Business Day": As defined in the Trust Agreement.
4
"Call Date": Any Business Day on or after September 21, 2006, or after the
announcement of any redemption or other unscheduled payment or sale of the
Underlying Securities on which the Call Warrants are exercised and the proceeds
of an Optional Call (as defined in the Series Supplement) are distributed to the
holders of the Certificates pursuant to Section 7 of the Series Supplement.
"Call Price": (i) in the case of the Class A-1 Certificates, the par value
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 being
purchased pursuant to the exercise of the Call Warrants, the Accreted Principal
Amount of the Class A-2 Certificates.
"Call Warrant": As defined in the recitals.
"Closing Date": September 21, 2001.
"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.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x Investors
Service, Inc. and any successor thereto.
"Responsible Officer": As defined in the Trust Agreement.
"Securities Act": The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Trust": As defined in the recitals.
"Trust Agreement": As defined in the recitals.
"Trustee": As defined in the introduction to this Warrant, or any successor
thereto under the Trust Agreement.
"Warrant Agent": U.S. Bank Trust National Association, a national banking
association, in its capacity as warrant agent hereunder, or any successor
thereto.
ARTICLE V
Warrant Agent
Section 5.1 LIMITATION ON LIABILITY. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any action taken, suffered or
omitted by it in connection
5
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 hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, Chief Financial Officer,
Chief Operating Officer, President, a Vice President, a Senior Vice President, a
Managing Director, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary of the Depositor, and any Responsible Officer of the
Trustee, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
6
(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 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
7
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.
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.
Section 6.4 AMENDMENT. (a) This Warrant Agent Agreement may be amended from
time to time by the Depositor, the Trustee and the Warrant Agent without the
consent of any Warrant Holder, upon receipt of an opinion of counsel
satisfactory to the Warrant Agent that the provisions hereof have been satisfied
and that such amendment would not alter the status of the Trust as a grantor
trust under the Code, for any of the following purposes: (i) to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or to provide for any
other terms or modify any other provisions with respect to matters or questions
arising under the Call Warrant which shall not adversely affect in any material
respect the interests of the Warrant Holder or any holder of a Certificate or
(ii) to evidence and provide for the acceptance of appointment hereunder of a
Warrant Agent other than U.S. Bank Trust National Association.
8
(a) Without limiting the generality of the foregoing, the Call Warrants may
also be modified or amended from time to time by the Depositor, the Trustee and
the Warrant Agent with the consent of Warrant Holders of 66-2/3% of each of the
Call Warrants related to the Class A-1 Certificates and the Call Warrants
related to the Class A-2 Certificates, upon receipt of an opinion of counsel
satisfactory to the Warrant Agent that the provisions hereof (including, without
limitation, the following proviso) have seen 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.
(b) 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, (c) the liquidation, disposition, or
maturity of all of the Certificates, or (d) the occurrence of an Event of
Default under the Trust Agreement.
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 CALL WARRANT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
Section 6.8 JUDICIAL PROCEEDINGS; WAIVER OF JURY. Any judicial proceeding
brought against the Trust, the Trustee or the Warrant Agent with respect to this
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
9
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.
10
Each of (i) the Warrant Holder, by its acceptance thereof, and (ii) the
Warrant Agent agrees, that it shall not have any recourse to the Certificates.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee and Authenticating Agent
By:
--------------------------------------
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:
--------------------------------------
Authorized Signatory
XXXXXX ABS CORPORATION,
as Depositor
By:
--------------------------------------
Name:
Title:
11
EXHIBIT C
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated: [_______________]
U.S. Bank Trust National Association,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
as initial Warrant Holder
Xxx Xxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Xxxxxx ABS Corporation
Xxx Xxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
In connection with our proposed purchase of ___________ Call Warrants (the
"Call Warrants") representing an interest in the Corporate Backed Trust
Certificates, Corning Debenture-Backed Series 2001-35 Trust (the "Trust"), the
investor on whose behalf the undersigned is executing this letter (the
"Purchaser") confirms that:
(1) Reference is made to the Prospectus Supplement, dated September 19,
2001 (the "Prospectus Supplement"), with respect to the Certificates to which
the Call Warrants relate. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Prospectus Supplement.
The Purchaser has received a copy of the Prospectus Supplement and such other
information as the Purchaser deems necessary in order to make its investment
decision and the Purchaser has been provided the opportunity to ask questions
of, and receive answers from, the Depositor and the Underwriters, concerning the
terms and conditions of the Call Warrants. The Purchaser has received and
understands the above, and understands that substantial risks are involved in an
investment in the Call Warrants. The Purchaser represents that in making its
investment decision to acquire the Call Warrants, the Purchaser has not relied
on representations, warranties, opinions, projections, financial or other
information or analysis, if any, supplied to it by any person, including you,
the Depositor or the Trustee or any of your or their affiliates, except as
expressly contained in the Prospectus Supplement and in the other written
information, if any, discussed above. The Purchaser has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Call Warrants, and the Purchaser is
able to bear the substantial economic risks of such an investment. The Purchaser
has relied upon its own tax, legal and financial advisors in connection with its
decision to purchase the Call Warrants.
C-1
(2) The Purchaser is (A) a "Qualified Institutional Buyer" (as defined
in Rule 144A under the Securities Act of 1933, as amended (the "1933 Act")) and
(B) acquiring the Call Warrants for its own account or for the account of an
investor of the type described in clause (A) above as to each of which the
Purchaser exercises sole investment discretion. The Purchaser is purchasing the
Call Warrants for investment purposes and not with a view to, or for, the offer
or sale in connection with, a public distribution or in any other manner that
would violate the 1933 Act or the securities or blue sky laws of any state.
(3) The Purchaser understands that the Call Warrants have not been and
will not be registered under the 1933 Act or under the securities or blue sky
laws of any state, and that (i) if it decides to resell, pledge or otherwise
transfer any Call Warrant, such Call Warrant may be resold, pledged or
transferred without registration only to an entity that has delivered to the
Depositor and the Trustee a certification that it is a Qualified Institutional
Buyer that purchases (1) for its own account or (2) for the account of such a
Qualified Institutional Buyer, that is, in either case, aware that the resale,
pledge or transfer is being made in reliance on said Rule 144A and (ii) it will,
and each subsequent holder will be required to, notify any purchaser of any Call
Warrant from it of the resale restrictions referred to in clause (i) above.
(4) The Purchaser understands that each of the Call Warrants will bear
a legend to the following effect, unless otherwise agreed by the Depositor and
the Trustee:
"THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
EXCEPT WHILE A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN
EXEMPTION THEREFROM UNDER SUCH ACT. THIS CALL WARRANT REPRESENTED HEREBY MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS CALL
WARRANT."
(5) The Purchaser understands that no subsequent transfer of the Call
Warrants is permitted unless it causes its proposed transferee to provide to the
Depositor and the initial Warrant Holder a letter substantially in the form of
Exhibit C to the Series Supplement, as applicable, or such other written
statement as the Depositor shall prescribe.
(6) The Purchaser agrees that if at some time in the future it wishes
to transfer or exchange any of the Call Warrants, it will not transfer or
exchange any of the Call Warrants unless such transfer or exchange is in
accordance with Section 3.2 of the Warrant Agent Agreement. The Purchaser
understands that any purported transfer of the Call Warrants (or any interest
therein) in contravention of any of the restrictions and conditions in the Trust
Agreement, as applicable, shall be void, and the purported transferee in such
transfer shall not be recognized by the Trust or any other Person as a Warrant
Holder.
C-2
You and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:
---------------------------------
Name:
Title:
[Medallion Stamp to be affixed here]
C-3
