SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
ROYAL & SUN ALLIANCE BOND-BACKED SERIES 2002-2 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of February 21, 2002
Table of Contents
Page
----
Section 1. Incorporation of Standard Terms...................................1
Section 2. Definitions.......................................................1
Section 3. Designation of Trust and Certificates.............................7
Section 4. Trust Certificates................................................8
Section 5. Distributions.....................................................8
Section 6. Trustee's Fees...................................................11
Section 7. Optional Exchange; Optional Call.................................11
Section 8. Notices of Events of Default.....................................13
Section 9. Miscellaneous....................................................13
Section 10. Governing Law....................................................15
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 2002-2 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
i
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
ROYAL & SUN ALLIANCE BOND-BACKED SERIES 2002-2 TRUST
SERIES SUPPLEMENT, Royal & Sun Alliance Bond-Backed Series 2002-2,
dated as of February 21, 2002 (the "Series Supplement"), by and between XXXXXX
ABS CORPORATION, as Depositor (the "Depositor"), and U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated herein
(the "Trust") by executing and delivering this Series Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
January 16, 2001 (the "Standard Terms;" and together with this Series
Supplement, the "Trust Agreement"), by and between the Depositor and the
Trustee, as modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit into the Trust the
Underlying Securities set forth on Schedule I attached hereto (the "Underlying
Securities Schedule") the general terms of which are described in the Prospectus
Supplement under the heading "Description of the Deposited Assets - Underlying
Securities;"
WHEREAS, in connection with the creation of the Trust and the deposit
therein of the Underlying Securities, it is desired to provide for the issuance
of trust certificates evidencing undivided interests in the Trust and call
warrants related thereto; and
WHEREAS, the Trustee has joined in the execution of the Standard Terms
and this Series Supplement to evidence the acceptance by the Trustee of the
Trust.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee as follows:
Section 1. Incorporation of Standard Terms. Except as otherwise provided
herein, all of the provisions of the Standard Terms are hereby incorporated
herein by reference in their entirety, and this Series Supplement and the
Standard Terms shall form a single agreement between the parties. In the event
of any inconsistency between the provisions of this Series Supplement and the
provisions of the Standard Terms, the provisions of this Series Supplement will
control with respect to the Royal & Sun Alliance Bond-Backed Series 2002-2
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
1
not applicable to this Series.) Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Standard Terms.
"Available Funds" shall have the meaning specified in the Standard
Terms.
"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 February 21, 2007
or after the announcement of any redemption or other unscheduled payment or sale
of the Underlying Securities.
"Call Notice" shall have the meaning specified in Section 1.1 of the
Warrant Agent Agreement.
"Call Price" shall mean, for each related Call Date, (i) in the case
of the Class A-1 Certificates, 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, any accrued and unpaid interest on the
notional amount of the Class A-2 Certificates being purchased pursuant to the
exercise of the Call Warrants to but excluding the Call Date, plus the
additional amount (or portion thereof, in the case of a partial call) set forth
under the heading "Value" in Schedule II hereof for such Call Date or, if such
Call Date is not a Distribution Date, the immediately following Distribution
Date.
"Call Warrants" shall have the meaning specified in Section 3 hereof.
"Called Certificates" shall have the meaning specified in Section 1.1
(b) of the Warrant Agent Agreement.
"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 6.50% 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 ownership interest in certain distributions
to be made by the Trust and having the characteristics described herein and in
the Certificates.
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"Class A-2 Allocation" shall mean the present value (discounted at the
rate of 9.50% 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 February 21, 2002.
"Collection Period" shall mean, (i) with respect to each October
Distribution Date, the period beginning on the day after the April Distribution
Date of such year and ending on such October Distribution Date, inclusive and,
(ii) with respect to each April Distribution Date, the period beginning on the
day after the October Distribution Date of the prior year and ending on such
April Distribution Date, inclusive; provided, however, that clauses (i) and (ii)
shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank Trust
National Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
"Depository" shall mean The Depository Trust Company, its nominees and
their respective successors.
"Distribution Date" shall mean April 15th and October 15th of each
year (or if such date is not a Business Day, the next succeeding Business Day),
commencing on April 15, 2002, and ending on the earlier of the Final Scheduled
Distribution Date and any date on which all Underlying Securities are redeemed
pursuant to the Indenture or prepaid or liquidated in whole for any reason other
than at their maturity.
"Event of Default" shall mean (i) a default in the payment of any
interest on any Underlying Security after the same becomes due and payable
(subject to any applicable grace period), (ii) a default in the payment of the
principal of or any installment of principal of any Underlying Security when the
same becomes due and payable, and (iii) any other event specified as an "Event
of Default" in the Indenture.
"Exchange Act" shall mean the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Final Scheduled Distribution Date" shall mean October 15, 2029, or,
if such day is not a Business Day, the next succeeding Business Day.
"Indenture" shall mean the indenture, dated as of September 30, 1999,
between the Underlying Securities Issuer, Royal & Sun Alliance Insurance plc and
the Underlying Securities Trustee, pursuant to which the Underlying Securities
were issued.
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"Interest Accrual Period" shall mean for any Distribution Date, the
period from and including the preceding Distribution Date (or in the case of the
first Interest Accrual Period, from and including February 21, 2002) to but
excluding the current Distribution Date.
"Liquidation Price" shall mean the price at which the Trustee sells
the Underlying Securities.
"Maturity Date" shall have the meaning specified in Schedule I hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Optional Call" shall mean the call of the Certificates by the Warrant
Holder, in whole or in part, resulting from the exercise of Call Warrants by the
Warrant Holder, pursuant to Section 7(d) hereof.
"Optional Exchange" shall mean the exchange of the Certificates by the
Trust for the Underlying Securities pursuant to Section 7(a) hereof.
"Optional Exchange Date" shall mean any date on which Underlying
Securities subject to Optional Exchange are distributed to a Certificateholder.
"Ordinary Expenses" shall mean the Trustee's ordinary expenses and
overhead in connection with its services as Trustee, including the items
referred to in the definition of Ordinary Expenses in the Standard Terms.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated
February 11, 2002, relating to the Certificates.
"Rating Agency" shall mean Moody's and S&P.
"Record Date" shall mean, with respect to each Distribution Date, the
day immediately preceding the related Distribution Date.
"Required Percentage-Amendment" shall be 66-2/3% of the aggregate
Voting Rights, unless the subject amendment requires the vote of holders of only
one class of Certificates pursuant to the Standard Terms, in which case 66-2/3%
of the 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.
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"Required Rating" shall mean, in the case of Moody's, the rating
assigned to the Underlying Securities by Moody's as of the Closing Date, and, in
the case of S&P, the rating assigned to the Underlying Securities by S&P as of
the Closing Date.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Series" shall mean Royal & Sun Alliance Bond-Backed Series 2002-2.
"Special Distribution Date" shall have the meaning specified in
Section 5 hereof.
"Trustee Fee" shall mean the amount paid to the Trustee by the
Depositor on the Closing Date.
"Trust Property" shall mean the Underlying Securities described on
Schedule I hereto and the Certificate Account.
"Underlying Securities" shall mean $49,500,000 aggregate principal
amount of 8.95% Subordinated Guaranteed Bonds due October 15, 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 Royal & Sun Alliance
Insurance Group plc.
"Underlying Securities Trustee" shall mean Citibank, N.A.
"Underwriters" shall mean Xxxxxx Brothers Inc., Prudential Securities
Incorporated, RBC Xxxx Xxxxxxxx Inc., U.S. Bancorp Xxxxx Xxxxxxx Inc. and HSBC
Securities (USA) Inc.
"Voting Rights" shall, in the entirety, be allocated among all Class
A-1 Certificateholders in proportion to the then unpaid principal amounts of
their respective Certificates. The Class A-2 Certificateholders will have no
Voting Rights.
"Warrant Agent" shall mean initially, U.S. Bank Trust National
Association.
"Warrant Agent Agreement" shall mean that certain Warrant Agent
Agreement, dated as of the date hereof, between the Depositor and U.S. Bank
Trust National Association, as Warrant Agent and as Trustee, as the same may be
amended from time to time.
"Warrant Holder" shall mean the holder of a Call Warrant.
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administrative Fees"
"Advance"
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"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"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
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"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, Royal & Sun Alliance
Bond-Backed Series 2002-2 Trust." The Certificates evidencing certain undivided
ownership interests therein shall be known as "Corporate Backed Trust
Certificates, Royal & Sun Alliance Bond-Backed Series 2002-2." 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 notional denominations of
$100,000 and integral multiples of $1 in excess thereof; provided, however, that
on any Call Date on which a Warrant Holder shall concurrently exchange Called
Certificates for a distribution of Underlying Securities in accordance with the
provisions of Section 7 hereof, Called Certificates may be issued in other
denominations. Except as provided in the Standard Terms and in paragraph (d) in
this Section, the Trust shall not issue additional Certificates or additional
Call Warrants or incur any indebtedness.
(b) The Class A-1 Certificates have an initial aggregate certificate
principal amount (the "Certificate Principal Amount") of $49,500,000. The Class
A-2 Certificates are interest-only Certificates, and have a notional amount
equal to the Certificate Principal Amount of the Class A-1 Certificates.
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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 7.50% per annum
on the outstanding Certificate Principal Amount of the Class A-1 Certificates.
The holders of the Class A-2 Certificates will be entitled to receive on each
Distribution Date the interest, if any, received on the Underlying Securities,
to the extent necessary to pay interest at a rate of 1.45% per annum on the
outstanding notional amount of the Class A-2 Certificates. On April 15, 2002,
the Trustee will pay to the Depositor the amount of interest accrued and paid on
the Underlying Securities from October 15, 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 Certificates in respect
of accrued interest, of any proceeds from the recovery on the Underlying
Securities.
(c) 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 cause the Trust to be taxed as an association or publicly
traded partnership taxable as a corporation for federal income tax purposes.
Each condition to be satisfied with respect to a sale of Underlying Securities
on or prior to the Closing Date shall be satisfied with respect to a sale of
additional Underlying Securities no later than the date of sale thereof, each
representation and warranty set forth in the Standard Terms to be made on the
Closing Date shall be made on such date of sale, and from and after such date of
sale, all Underlying Securities held by the Trustee shall be held on the same
terms and conditions. Upon such sale to the Trustee, the Trustee shall deposit
such additional Underlying Securities in the Certificate Account, and shall
authenticate and deliver to the Depositor, on its order, Class A-1 Certificates
in a Certificate Principal Amount, and Class A-2 Certificates in a notional
amount, equal to the principal amount of such additional Underlying Securities,
and the Call Warrants related thereto. Any such additional Class A-1
Certificates 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.
(d) As a condition precedent for transferring the Call Warrants, the
prospective transferee shall be required to deliver to the Trustee and the
Depositor an executed copy of the Investment Letter (set forth in Exhibit C
hereto).
Section 4. Trust Certificates. The Trustee hereby acknowledges receipt, on
or prior to the Closing Date, of:
(a) the Underlying Securities set forth on Schedule I hereto; and
(b) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Standard Terms.
Section 5. Distributions.
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(a) Except as otherwise provided in Section 3(c), on each applicable
Distribution Date (or such later date as specified in Section 9(f)), the Trustee
shall apply Available Funds in the Certificate Account as follows:
(i) The Trustee will pay the interest portion of Available Funds
(subject to Section 5(c) and Section 5(d) below):
(1) first, to the Trustee, as reimbursement for any Extraordinary
Trust Expenses incurred by the Trustee in accordance with Section 6(b)
below and approved by 100% of the Certificateholders; and
(2) second, to the holders of the Class A-1 Certificates and to
the holders of the Class A-2 Certificates, interest accrued and unpaid
on each such Class, pro rata in proportion to their entitlements
thereto.
(ii) the Trustee will pay the principal portion of Available Funds:
(1) first, to the Trustee, as reimbursement for any remaining
Extraordinary Trust Expenses incurred by the Trustee in accordance
with Section 6(b) below and approved by 100% of the
Certificateholders; and
(2) second, to the holders of the Class A-1 Certificates, the
Certificate Principal Amount.
Any portion of the Available Funds (i) that does not constitute principal of, or
interest on, the Underlying Securities, (ii) that is not received in connection
with a redemption, prepayment or liquidation of the Underlying Securities and
(iii) for which allocation by the Trustee is not otherwise contemplated by this
Series Supplement, shall be remitted by the Trustee to the Depositor.
(b) [Reserved].
(c) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part for any reason other than
due to the occurrence of an Underlying Securities Event of Default, the
cessation of the Underlying Securities Issuer to file periodic reports as
required by the Exchange Act or at their maturity, the Trustee shall apply
Available Funds in the manner described in Section 5(h) in the following order
of priority:
(i) first, to the Trustee, as reimbursement for any Extraordinary
Trust Expenses incurred by the Trustee in accordance with Section
6(b) below and approved by 100% of the Certificateholders;
(ii) second, to the holders of the Class A-1 Certificates, an amount
equal to the outstanding Certificate Principal Amount plus
accrued and unpaid interest thereon;
(iii) third, to the holders of the Class A-2 Certificates, the present
value of all amounts that would otherwise have been payable on
the Class A-2
9
Certificates for the period from the date of such redemption or
prepayment to the Final Scheduled Distribution Date using a
discount rate of 9.50% per annum, assuming no delinquencies,
deferrals, redemptions or prepayments on the Underlying
Securities; and
(iv) fourth, any remainder to the holders of the Class A-1
Certificates and the Class A-2 Certificates pro rata in
proportion to the ratio of the Class A-1 Allocation to the Class
A-2 Allocation.
(d) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part due to the occurrence of an
Underlying Securities Event of Default, the Trustee shall apply Available Funds
to the holders of the Class A-1 Certificates and the holders of the Class A-2
Certificates in accordance with the ratio of the Class A-1 Allocation to the
Class A-2 Allocation.
(e) Unless otherwise instructed by holders of Certificates representing a
majority of the Voting Rights, thirty (30) days after giving notice pursuant to
Section 8 hereof, the Trustee shall sell the Underlying Securities pursuant to
Section 13 hereof and deposit the Liquidation Proceeds, if any, into the
Certificate Account for distribution not later than two (2) Business Days after
the receipt of immediately available funds in accordance with Section 5(d)
hereof provided, however, that if any Warrant Holder designates the proposed
sale date as a Call Date and Optional Exchange Date pursuant to Section 7, the
portion of Underlying Securities related to such Optional Exchange shall not be
sold but shall be distributed to the Warrant Holder pursuant to Section 7 and
the Warrant Agent Agreement.
(f) If the Trustee receives non-cash property in respect of the Underlying
Securities as a result of a payment default on the Underlying Securities
(including from the sale thereof), the Trustee will promptly give notice to the
Depository, or for any Certificates which are not then held by DTC or any other
depository, directly to the registered holders of the Certificates then
outstanding and unpaid and to the Warrant Agent. Such notice shall state that
the Trustee shall and the Trustee shall, not later than 30 days after the
receipt of such property, allocate and distribute such property to the holders
of Class A-1 Certificates and Class A-2 Certificates then outstanding and unpaid
(after deducting the costs incurred in connection therewith) in accordance with
Section 5(d) hereof. Property other than cash will be liquidated by the Trustee,
and the proceeds thereof distributed in cash, only to the extent necessary to
avoid distribution of fractional securities to Certificateholders. In-kind
distribution of such property to Certificateholders, based on the market value
of such property as of the date of distribution to Certificateholders, will be
deemed to reduce the Certificate Principal Amount of Certificates on a
dollar-for-dollar basis.
(g) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any scheduled interest or principal payments on any class
of Certificates on any Distribution Date, any shortfall will be carried over and
will be distributed on the next Distribution Date (or date referred to in
Section 5(h) hereof) on which sufficient funds are available to pay such
shortfall.
10
(h) If a payment with respect to the Underlying Securities is made to the
Trustee in connection with redemption, prepayment or liquidation, in whole or in
part, of the Underlying Securities for any reason other than due to the
occurrence of an Event of Default or at their maturity, the Trustee will
distribute any such amounts received in accordance with Section 5(c) on the next
occurring Business Day (a "Special Distribution Date") as if the funds had
constituted Available Funds on the Distribution Date immediately preceding such
Special Distribution Date; provided, however, that the Record Date for such
Special Distribution Date shall be one Business Day prior to the day on which
the related payment was received from the Underlying Securities.
(i) Notwithstanding Section 3.12 of the Standard Terms, if the Underlying
Securities Issuer ceases to file periodic reports as required under the Exchange
Act, the Depositor shall within a reasonable time instruct the Trustee to (i)
notify the Warrant Agent that the Underlying Securities are proposed to be sold
and that any Call Warrants and related Optional Exchange rights must be
exercised no later than the date specified in the notice (which shall be not
less than ten Business Days after the date of such notice) and (ii) to the
extent that the Warrant Holders fail to exercise their Call Warrants and related
Optional Exchange rights on or prior to such date, to sell the Underlying
Securities and distribute the proceeds of such sale to the certificateholders in
accordance with the following order of priority: first, to the Trustee, as
reimbursement for any Extraordinary Trust Expenses incurred by the Trustee in
accordance with Section 6(b) below and approved by 100% of the
Certificateholders; and second, any remainder to the holders of the Class A-1
Certificates and the Class A-2 Certificates pro rata in proportion to the ratio
of the Class A-1 Allocation to the Class A-2 Allocation; provided, however, the
Depositor shall not instruct the Trustee to sell the Underlying Securities (or
provide a notice of such instruction to the Warrant Agent) pursuant to this
clause unless the Underlying Securities Issuer has either (x) stated in writing
that it intends permanently to cease 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. The Trustee Fee shall be paid by the Depositor and
not from Trust Property. The Trustee shall bear all Ordinary Expenses. Failure
by the Depositor to pay such amount shall not entitle the Trustee to any payment
or reimbursement from the Trust, nor shall such failure release the Trustee from
the duties it is required to perform under the Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust Property
unless all the holders of the Class A-1 Certificates and Class A-2 Certificates
then outstanding have directed the Trustee to incur such Extraordinary Expenses.
The Trustee may incur other Extraordinary Expenses if any lesser percentage of
the Certificateholders requesting such action pursuant hereto reimburse the
Trustee for the cost thereof from their own funds in advance. If Extraordinary
Expenses are not approved unanimously as set forth in the first sentence of this
Section 6(b), such Extraordinary Expenses shall not be an obligation of the
Trust, and the Trustee shall not file any claim against the Trust therefor
notwithstanding failure of Certificateholders to reimburse the Trustee.
Section 7. Optional Call; Optional Exchange.
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(a) 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. On any Call Date, any
Warrant Holder may exchange Called Certificates for a distribution of Underlying
Securities representing the same percentage of Underlying Securities as such
Called Certificates represent of all outstanding Certificates; provided that any
such exchange shall either (x) result from an exercise of all Call Warrants
owned by such Warrant Holder or (y) occur on a Call Date on which such Warrant
Holder, alone or together with one or more other Warrant Holders, shall exchange
Called Certificates relating to Underlying Securities having an aggregate
principal amount equal to or in excess of the product of (i) 0.1 and (ii) the
aggregate principal amount of the Underlying Securities deposited into the Trust
on the Closing Date.
(b) The following conditions shall apply to any Optional Exchange.
(i) A notice specifying the number of Certificates being surrendered
and the Optional Exchange Date shall be delivered to the Trustee no less
than 5 days (or such shorter period acceptable to the Trustee) but not more
than 30 days before the Optional Exchange Date; provided that for an
Optional Exchange to occur on a Call Date, unless otherwise specified
therein, the Call Notice shall be deemed to be the notice required
hereunder.
(ii) Certificates and, if applicable, the Call Warrants, shall be
surrendered to the Trustee no later than 10:00 a.m. (New York City time) on
the Optional Exchange Date; provided that for an Optional Exchange to occur
on a Call Date, payment of the Call Price to the Warrant Agent pursuant to
Section 1.1(a)(iii) of the Warrant Agent Agreement shall satisfy the
requirement to surrender Certificates.
(iii) 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.
(iv) The Trustee shall have received an opinion of counsel stating
that the Optional Exchange would not cause the Trust to be treated as an
association or publicly traded partnership taxable as a corporation for
federal income tax purposes.
(v) If the Certificateholder is the Depositor or any Affiliate of the
Depositor, (1) the Trustee shall have received a certification from the
Certificateholder that any Certificates being surrendered have been held
for at least six months, and (2) the Certificates being surrendered may
represent no more than 5% (or 25% in the case of Certificates acquired by
the Underwriters but never distributed to investors) of the then
outstanding Certificates.
(vi) The Trustee shall not be obligated to determine whether an
Optional Exchange complies with the applicable provisions for exemption
under Rule 3a-7 of the Investment Company Act of 1940, as amended, or the
rules or regulations promulgated thereunder.
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(vii) The provisions of Section 4.07 of the Standard Terms shall not
apply to an Optional Exchange pursuant to this Section 7(b). This Section
7(b) shall not provide any person with a lien against, an interest in or a
right to specific performance with respect to the Underlying Securities;
provided that satisfaction of the conditions set forth in this Section 7(a)
shall entitle the Certificateholder or Warrant Holder, as applicable, to a
distribution thereof.
(c) Concurrently with the execution of this Series Supplement, the Trustee,
on behalf of the Trust, shall execute the Warrant Agent Agreement and the Call
Warrants, dated as of the date hereof and substantially in the form of Exhibit B
hereto, initially evidencing all of the Call Warrants. The Trustee shall perform
the Trust's obligations under the Warrant Agent Agreement and the Call Warrants
in accordance with their respective terms.
(d) Call Warrants may be exercised by the Warrant Holder in whole or in
part on any Call Date. In addition to the conditions set forth in Section 1.1 of
the Warrant Agent Agreement, the following conditions shall apply to any
Optional Call.
(i) An opinion of counsel to the Warrant Holder shall have been
delivered to the Rating Agencies, in form satisfactory to the Rating
Agencies, indicating that payment of the Call Price shall not be
recoverable as a preferential transfer or fraudulent conveyance under the
United States Bankruptcy Code. Such opinion may contain customary
assumptions and qualifications.
(ii) The Warrant Holder shall have provided a certificate of solvency
to the Trustee.
(iii) Upon receipt of a Call Notice, the Trustee shall provide a
conditional call notice to the Depository not less than 3 Business Days
prior to the Call Date.
(iv) Delivery of a Call Notice does not give rise to an obligation on
the part of the Warrant Holder to pay the Call Price. If, by 10:00 a.m.
(New York City time) on the Call Date, the Warrant Holder has not paid the
Call Price, 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 adversely affect
the Warrant Holders (including, without limitation, any alteration of the
timing or amount of any payment of the Call Price or any other provision of
this Agreement in a manner adverse to the Warrant Holders) without the
prior written consent of 100% of the Warrant Holders. For purposes of this
clause, no amendment, modification or supplement required to provide for
any purchase by the Trustee of additional Underlying Securities
13
and authentication and delivery by the Trustee of additional certificates
and call warrants pursuant to Section 3(d) shall be deemed to adversely
affect the Warrant Holders.
(vii) The Trustee shall not be obligated to determine whether an
Optional Call complies with the applicable provisions for exemption under
Rule 3a-7 of the Investment Company Act of 1940, as amended, or the rules
or regulations promulgated thereunder.
(e) This Section 7 shall not provide the Warrant Holder with a lien
against, an interest in or a right to specific performance with respect to the
Underlying Securities.
(f) The rights of the Certificateholders under the Trust Agreement and the
Certificates are limited by the terms, provisions and conditions of the Trust
Agreement, the Warrant Agent Agreement and the Call Warrants with respect to the
exercise of the Call Warrants by the Warrant Holder. The Certificateholders, by
their acceptance of Certificates, covenant and agree to tender any and all
Called Certificates to the Trustee upon the Warrant Holder's exercise of Call
Warrants and payment of the Call Price for such Certificates in accordance with
the provisions hereof and of the Warrant Agent Agreement.
Section 8. Notices of Events of Default.
As promptly as practicable after, and in any event within 30 days
after, the occurrence of any Event of Default actually known to the Trustee, the
Trustee shall give notice of such Event of Default to the Depository, or, if any
Certificates are not then held by DTC or any other depository, directly to the
registered holders of such Certificates, and to the Warrant Agent. However,
except in the case of an Event of Default relating to the payment of principal
of or interest on any of the Underlying Securities, the Trustee will be
protected in withholding such notice if in good faith it determines that the
withholding of such notice is in the interest of the Certificateholders.
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms shall
not apply to the Royal & Sun Alliance Bond-Backed Series 2002-2 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Royal & Sun Alliance Bond-Backed Series 2002-2
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 Royal & Sun Alliance Bond-Backed Series 2002-2 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
14
promptly upon receipt of such payment. No additional amounts shall accrue on the
Certificates or be owed to Certificateholders as a result of such delay;
provided, however, that any additional interest owed and paid by the Underlying
Securities Issuer as a result of such delay shall be paid to the Class A-1
Certificateholders and Class A-2 Certificateholders pro rata in proportion to
their respective entitlements to such delayed payments.
(g) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Losses (as defined in the Standard Terms).
(h) The Trust may not engage in any business or activities other than in
connection with, or relating to, the holding, protecting and preserving of the
Trust Property and the issuance of the Certificates and the Call Warrants, and
other than those required or authorized by the Trust Agreement or incidental and
necessary to accomplish such activities. The Trust may not issue or sell any
certificates or other obligations other than the Certificates and the Call
Warrants or otherwise incur, assume or guarantee any indebtedness for money
borrowed. Notwithstanding Section 3.05 of the Standard Terms, funds on deposit
in the Certificate Account shall not be invested.
(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.
(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) Notices. All directions, demands and notices hereunder or under the
Standard Terms shall be in writing and shall be delivered as set forth below
(unless written notice is otherwise provided to the Trustee).
15
If to the Depositor, to:
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee or the Warrant Agent, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copies of all directions, demands and notices required to be given to the
Certificateholders hereunder or under the Standard Terms will also be given to
the Warrant Agent in writing as set forth in this Section 9.
16
Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS PROVISIONS
THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon the
earliest to occur of (i) the payment in full at maturity or sale by the Trust
after a payment default or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the exercise
of all outstanding Call Warrants by the Warrant Holder; (iii) the Final
Scheduled Distribution Date and (iv) the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Section 13. Sale of Underlying Securities; Optional Exchange. In the event
of a sale of the Underlying Securities pursuant to Section 5(e) hereof or
pursuant to the instructions of the Warrant Agent under Section 1.2 of the
Warrant Agent Agreement, the Trustee shall solicit bids for the sale of the
Underlying Securities with settlement thereof on or before the third (3rd)
Business Day after such sale from three leading dealers in the relevant market.
Any of the following dealers (or their successors) shall be deemed to qualify as
leading dealers: (1) Credit Suisse First Boston Corporation, (2) Xxxxxxx, Xxxxx
& Co., (3) Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (4) UBS Warburg
LLC, (5) Xxxxxxx Xxxxx Xxxxxx Inc., and (6) except in the case of a sale related
to the exercise of Call Warrants by the Depositor or any Affiliate thereof,
Xxxxxx Brothers Inc. The Trustee shall not be responsible for the failure to
obtain a bid so long as it has made reasonable efforts to obtain bids. If a bid
for the sale of the Underlying Securities has been accepted by the Trustee but
the sale has failed to settle on the proposed settlement date, the Trustee shall
request new bids from such leading dealers to the Class A-1 and Class A-2
Certificateholders. In the event of an Optional Exchange, the Trustee shall only
deliver the Underlying Securities to the purchaser of such Underlying Securities
or sell the Underlying Securities pursuant to this Section 13, as the case may
be, against payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust Agreement to
the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall not enter into any amendment or
modification of the Trust Agreement which would adversely affect in any material
respect the interests of the holders of any class of Certificates without the
consent of the holders of 100% of such class of Certificates; provided, however,
that no such amendment or modification will be permitted which would cause the
Trust to be taxed as an association or publicly traded partnership taxable as a
corporation for federal income tax purposes. 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
17
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.
(a) The Trustee, as holder of the Underlying Securities, has the right to
vote and give consents and waivers in respect of the Underlying Securities as
permitted by the Depository and except as otherwise limited by the Trust
Agreement. In the event that the Trustee receives a request from the Depository,
the Underlying Securities Trustee or the Underlying Securities Issuer for its
consent to any amendment, modification or waiver of the Underlying Securities,
the Indenture or any other document thereunder or relating thereto, or receives
any other solicitation for any action with respect to the Underlying Securities,
the Trustee shall mail a notice of such proposed amendment, modification, waiver
or solicitation to each Certificateholder of record as of such date. The Trustee
shall request instructions from the Certificateholders as to whether or not to
consent to or vote to accept such amendment, modification, waiver or
solicitation. The Trustee shall consent or vote, or refrain from consenting or
voting, in the same proportion (based on the relative outstanding Certificate
Principal Amounts of the Class A-1 Certificates) as the Certificates of the
Trust were actually voted or not voted by the Certificateholders thereof as of a
date determined by the Trustee prior to the date on which such consent or vote
is required; provided, however, that, notwithstanding anything in the Trust
Agreement to the contrary, the Trustee shall at no time vote on or consent to
any matter (i) unless such vote or consent would not (based on an opinion of
counsel) cause the Trust to be taxed as an association or publicly traded
partnership taxable as a corporation under the Code, (ii) which would alter the
timing or amount of any payment on the Underlying Securities, including, without
limitation, any demand to accelerate the Underlying Securities, except in the
event of a default under the Underlying Securities or an event which with the
passage of time would become an event of default under the Underlying Securities
and with the unanimous consent of holders of all outstanding Class A-1
Certificates, Class A-2 Certificates and all Warrant Holders, or (iii) which
would result in the exchange or substitution of any of the outstanding
Underlying Securities pursuant to a plan for the refunding or refinancing of
such Underlying Securities except in the event of a default under the Indenture
and only with the consent of Certificateholders representing 100% of the Class
A-1 Certificates, 100% of the Class A-2 Certificates and 100% of the Warrant
Holders. The Trustee shall have no liability for any failure to act resulting
from Certificateholders' late return of, or failure to return, directions
requested by the Trustee from the Certificateholders.
(b) In the event that an offer is made by the Underlying Securities Issuer
to issue new obligations in exchange and substitution for any of the Underlying
Securities, pursuant to a plan for the refunding or refinancing of the
outstanding Underlying Securities or any other offer is made for the Underlying
Securities, the Trustee shall notify the Class A-1 Certificateholders, Class A-2
Certificateholders and the Warrant Holders of such offer promptly. 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, Class A-2
Certificates and Call Warrants to accept such offer and the Trustee has received
the tax opinion described above. If pursuant to the preceding sentence, the
Trustee accepts any such offer the Trustee shall promptly notify the Rating
Agencies.
(c) If an event of default under the Indenture occurs and is continuing,
and if directed by a majority of the outstanding Class A-1 Certificateholders
and Class A-2 Certificateholders,
18
the Trustee shall vote the Underlying Securities in favor of directing, or take
such other action as may be appropriate to direct, the Underlying Securities
Trustee to declare the unpaid principal amount of the Underlying Securities and
any accrued and unpaid interest thereon to be due and payable.
Section 16. Additional Depositor Representation. It is the express intent
of the parties hereto that the conveyance of the Underlying Securities by the
Depositor to the Trustee be, and be construed as, a sale of the Underlying
Securities by the Depositor and not a pledge of any Underlying Securities by the
Depositor to secure a debt or other obligation of the Depositor. In the event
that, notwithstanding the aforementioned intent of the parties, any Underlying
Securities are held to be property of the Depositor, then, it is the express
intent of the parties that such conveyance be deemed a pledge of such Underlying
Securities by the Depositor to the Trustee to secure a debt or other obligation
of the Depositor, pursuant to Section 10.07 of the Standard Terms. In connection
with any such grant of a security interest in the Underlying Securities
(including any such grant in connection with any sale of additional Underlying
Securities pursuant to Section 3(d)), the Depositor hereby represents and
warrants to Trustee as follows:
(i) In the event the Underlying Securities are held to be property of the
Depositor, then the Trust Agreement creates a valid and continuing
security interest (as defined in the applicable Uniform Commercial
Code) in the Underlying Securities in favor of the Trustee which
security interest is prior to all other liens, and is enforceable as
such as against creditors of, and purchasers from, the Depositor.
(ii) The Underlying Securities have been credited to a trust account (the
"Securities Account") of the Trustee, or its authorized agent, in
accordance with Section 2.01 of the Standard Terms. The Trustee, as
securities intermediary for the Securities Account, has agreed to
treat the Underlying Securities as "financial assets" within the
meaning of the Uniform Commercial Code.
(iii) Immediately prior to the transfer of the Underlying Securities to the
Trust, Depositor owned and had good and marketable title to the
Underlying Securities free and clear of any lien, claim or encumbrance
of any Person.
(iv) Depositor has received all consents and approvals required by the
terms of the Underlying Securities to the transfer to the Trustee of
its interest and rights in the Underlying Securities as contemplated
by the Trust Agreement.
(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
19
financing statements against Depositor that includes a description of
the Underlying Securities. Depositor is not aware of anyjudgment 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.
20
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 Certificates
Royal & Sun Alliance Bond-Backed
Series 2002-2 Trust
By:_________________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President and Assistant Secretary
21
SCHEDULE I
ROYAL & SUN ALLIANCE BOND-BACKED SERIES 2002-2
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 8.95% Subordinated Guaranteed Bonds due
October 15, 2029.
Issuer: Royal & Sun Alliance Insurance Group plc.
Guarantor: Royal & Sun Alliance Insurance plc.
CUSIP Number: 78004V AB 9.
Principal Amount Deposited: $49,500,000
Original Issue Date: September 27, 1999.
Principal Amount of
Underlying Securities
Originally Issued: $500,000,000.
Maturity Date: October 15, 2029.
Interest Rate: 8.95% per annum.
Interest Payment Dates: April 15th and October 15th.
Record Dates: April 14th and October 14th.
I-1
SCHEDULE II
CLASS A-2 CERTIFICATE CALL SCHEDULE
Distribution Date Value
4/15/2002 $7,266,508
10/15/2002 $7,234,626
4/15/2003 $7,201,309
10/15/2003 $7,166,493
4/15/2004 $7,130,111
10/15/2004 $7,092,091
4/15/2005 $7,052,360
10/15/2005 $7,010,841
4/15/2006 $6,967,454
10/15/2006 $6,922,114
4/15/2007 $6,874,734
10/15/2007 $6,825,222
4/15/2008 $6,773,482
10/15/2008 $6,719,414
4/15/2009 $6,662,913
10/15/2009 $6,603,869
4/15/2010 $6,542,168
10/15/2010 $6,477,690
4/15/2011 $6,410,311
10/15/2011 $6,339,900
4/15/2012 $6,266,321
10/15/2012 $6,189,430
4/15/2013 $6,109,080
10/15/2013 $6,025,113
4/15/2014 $5,937,368
10/15/2014 $5,845,675
4/15/2015 $5,749,855
10/15/2015 $5,649,724
4/15/2016 $5,545,086
10/15/2016 $5,435,740
4/15/2017 $5,321,473
10/15/2017 $5,202,065
4/15/2018 $5,077,283
10/15/2018 $4,946,885
4/15/2019 $4,810,620
10/15/2019 $4,668,223
4/15/2020 $4,519,418
10/15/2020 $4,363,917
4/15/2021 $4,201,418
10/15/2021 $4,031,607
4/15/2022 $3,854,154
10/15/2022 $3,668,716
4/15/2023 $3,474,934
10/15/2023 $3,272,431
4/15/2024 $3,060,815
10/15/2024 $2,839,677
II-1
Distribution Date Value
4/15/2025 $2,608,587
10/15/2025 $2,367,099
4/15/2026 $2,114,743
10/15/2026 $1,851,031
4/15/2027 $1,575,453
10/15/2027 $1,287,473
4/15/2028 $986,535
10/15/2028 $672,054
4/15/2029 $343,421
10/15/2029 $0
II-2
EXHIBIT A-1
FORM OF TRUST CERTIFICATE CLASS A-1
A-1-1
EXHIBIT A-2
FORM OF TRUST CERTIFICATE CLASS A-2
A-2-1
EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
B-1
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.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of ___________ Call Warrants (the
"Call Warrants") representing an interest in the Corporate Backed Trust
Certificates, Royal & Sun Alliance Bond-Backed Series 2002-2 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 February 11, 2002
(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.
(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
C-1
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
CLASS A-2 CERTIFICATE
NUMBER 1 CUSIP NO. 21988G BN 5
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.
THE NOTIONAL PRINCIPAL AMOUNT OF THIS CLASS A-2 CERTIFICATE IS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING NOTIONAL PRINCIPAL AMOUNT OF THIS CLASS A-2
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL OWNERSHIP
INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN,
AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
ROYAL & SUN ALLIANCE BOND-BACKED SERIES 2002-2
$49,500,000 NOTIONAL PRINCIPAL AMOUNT
1.45% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$49,500,000 aggregate notional principal amount of 8.95% Subordinated Guaranteed
Bonds due October 15, 2029, issued by Royal & Sun Alliance Insurance Group plc
and all payments received thereon (the "Trust Property"), deposited in trust by
Xxxxxx ABS Corporation (the "Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an aggregate
principal amount of $49,500,000 notional principal amount nonassessable,
fully-paid, proportionate undivided beneficial ownership interest in the
Corporate Backed Trust Certificates, Royal & Sun Alliance Bond-Backed Series
2002-2 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, Royal & Sun Alliance Bond-Backed Series 2002-2, dated
as of February 21, 2002 (the "Series Supplement" and, together with the Standard
Terms, the "Trust Agreement"), between the Depositor and the Trustee. This
Certificate does not purport to summarize the Trust Agreement and reference is
hereby made to the Trust Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Trustee with respect hereto. A
copy of the Trust Agreement may be obtained from the Trustee by written request
sent to the Corporate Trust Office. Capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as
the "Corporate Backed Trust Certificates, Royal & Sun Alliance Bond-Backed
Series 2002-2, Class A-2" (herein called the "Certificates"). This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. The
Trust Property consists of: (i) Underlying Securities described in the Trust
Agreement, and (ii) all payments on or collections in respect of the Underlying
Securities accrued on or after February 21, 2002 together with any proceeds
thereof; and (iv) all funds from time to time deposited with the Trustee
relating to the Certificates, together with any and all income, proceeds and
payments with respect thereto; provided, however, that any income from the
investment of Trust funds in certain permitted investments ("Eligible
Investments") does not constitute Trust Property.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, distributions of
interest will be made on this Certificate on each Distribution Date.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, distributions
will be made on each Distribution Date, to the Person in whose name this
Certificate is registered on the applicable Record Date, in an amount equal to
such Certificateholder's proportionate undivided beneficial ownership interest
in the amount required to be distributed to the Holders of the Certificates on
such Distribution Date. The Record Date applicable to any Distribution Date is
the close of business on the day immediately preceding such Distribution Date
(whether or not a Business Day). If a payment with respect to the Underlying
Securities is made to the Trustee after the date on which such payment was due,
then the Trustee will distribute any such amounts received on the next occurring
Business Day.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Trust, or join in any institution against the Trust of, any bankruptcy
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates or the Trust
Agreement.
Distributions made on this Certificate will be made as provided in the
Trust Agreement by the Trustee by wire transfer in immediately available funds,
or check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon, except that with respect to Certificates registered on the
Record Date in the name of the nominee of the Clearing Agency (initially, such
nominee shall be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the Corporate Trust Office or such other
location as may be specified in such notice.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not entitle
the Holder hereof to any benefit under the Trust Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
ROYAL & SUN ALLIANCE BOND-BACKED
SERIES 2002-2 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:________________________________
Authorized Signatory
Dated: February 21, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Royal & Sun
Alliance Bond-Backed Series 2002-2, 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
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain payments
and collections respecting the Underlying Securities, all as more specifically
set forth herein and in the Trust Agreement. The registered Holder hereof, by
its acceptance hereof, agrees that it will look solely to the Trust Property (to
the extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent of
the holders of Class A-2 Certificates in the manner set forth in the Series
Supplement and the Standard Terms. Any such consent by the Holder of this
Certificate (or any predecessor Certificate) shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $100,000 and in integral multiples of $1 in excess thereof.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trustee in the Borough of Manhattan, the City of New York, duly endorsed by
or accompanied by an assignment in the form below and by such other documents as
required by the Trust Agreement, and thereupon one or more new Certificates of
the same class in authorized denominations evidencing the same notional
principal amount will be issued to the designated transferee or transferees. The
initial Certificate Registrar appointed under the Trust Agreement is U.S. Bank
Trust National Association.
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require exchange of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the Trustee
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the Trust
created thereunder shall constitute a fixed investment trust for federal income
tax purposes under Treasury Regulation Section 301.7701-4, and the
Certificateholder agrees to treat the Trust, any distributions therefrom and its
beneficial interest in the Certificates consistently with such characterization.
The Trust and the obligations of the Depositor and the Trustee created by
the Trust Agreement with respect to the Certificates shall terminate upon the
earliest to occur of (i) the
payment in full at maturity or sale by the Trust after a payment default on or
an acceleration or other early payment of the Underlying Securities and the
distribution in full of all amounts due to the Class A-1 and Class A-2
Certificateholders; (ii) the Final Scheduled Distribution Date and (iii) the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the
Code, an entity whose underlying assets include plan assets by reason of any
such plan's investment in the entity, including an individual retirement account
or Xxxxx plan (any such, a "Plan") may purchase and hold Certificates if the
Plan can represent and warrant that its purchase and holding of the Certificates
would not be prohibited under ERISA or the Code.
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.
CLASS A-1 CERTIFICATE
NUMBER 1 1,980,000 $25 PAR CERTIFICATES
CUSIP NO. 21988G 51 0
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL OWNERSHIP
INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN,
AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
XXXXXX ABS CORPORATION
1,980,000 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
ROYAL & SUN ALLIANCE BOND-BACKED SERIES 2002-2
7.50% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$49,500,000 aggregate principal amount of 8.95% Subordinated Guaranteed Bonds
due October 15, 2029, issued by Royal & Sun Alliance Insurance Group plc (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 $49,500,000
DOLLARS nonassessable, fully-paid, proportionate undivided beneficial ownership
interest in the Corporate Backed Trust Certificates, Royal & Sun Alliance
Bond-Backed Series 2002-2 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, Royal & Sun Alliance Bond-Backed Series 2002-2, dated as
of February 21, 2002 (the "Series Supplement" and, together with the Standard
Terms, the "Trust Agreement"), between the Depositor and the Trustee. This
Certificate does not purport to summarize the Trust Agreement and reference is
hereby made to the Trust Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Trustee with respect hereto. A
copy of the Trust Agreement may be obtained from the Trustee by written request
sent to the Corporate Trust Office. Capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as
the "Corporate Backed Trust Certificates, Royal & Sun Alliance Bond-Backed
Series 2002-2, Class A-1" (herein called the "Certificates"). This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. The
Trust Property consists of: (i) Underlying Securities described in the Trust
Agreement, and (ii) all payments on or collections in respect of the Underlying
Securities accrued on or after February 21, 2002 together with any proceeds
thereof; and (iv) all funds from time to time deposited with the Trustee
relating to the Certificates, together with any and all income, proceeds and
payments with respect thereto; provided, however, that any income from the
investment of Trust funds in certain permitted investments ("Eligible
Investments") does not constitute Trust Property.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, distributions
will be made on each Distribution Date, to the Person in whose name this
Certificate is registered on the applicable Record Date, in an amount equal to
such Certificateholder's proportionate undivided beneficial ownership interest
in the amount required to be distributed to the Holders of the Certificates on
such Distribution Date. The Record Date applicable to any Distribution Date is
the close of business on the day immediately preceding such Distribution Date
(whether or not a Business Day). If a payment with respect to the Underlying
Securities is made to the Trustee after the date on which such payment was due,
then the Trustee will distribute any such amounts received on the next occurring
Business Day.
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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, ROYAL & SUN ALLIANCE
BOND-BACKED SERIES 2002-2 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:_______________________________
Authorized Signatory
Dated: February 21, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Royal & Sun Alliance
Bond-Backed Series 2002-2, 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
(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 Final Scheduled Distribution Date and (iii) the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the
Code, an entity whose underlying assets include plan assets by reason of any
such plan's investment in the entity, including an individual retirement account
or Xxxxx plan (any such, a "Plan") may purchase and hold Certificates if the
Plan can represent and warrant that its purchase and holding of the Certificates
would not be prohibited under ERISA or the Code.
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.
WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
ROYAL & SUN ALLIANCE BOND-BACKED SERIES 2002-2 TRUST
WARRANT AGENT AGREEMENT, dated as of February 21, 2002 (the "Warrant Agent
Agreement"), by and between XXXXXX ABS CORPORATION, as Depositor (the
"Depositor"), U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the "Trustee")
and U.S. BANK TRUST NATIONAL ASSOCIATION, as Warrant Agent (the "Warrant
Agent").
W I T N E S S E T H:
WHEREAS, the Depositor created Corporate Backed Trust Certificates, Royal &
Sun Alliance Bond-Backed Series 2002-2 Trust (the "Trust"), a trust created
under the laws of the State of New York pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Agreement"), between Xxxxxx ABS
Corporation (the "Depositor") and U.S. Bank Trust National Association, a
national banking association, not in its individual capacity but solely as
Trustee (the "Trustee"), as supplemented by the Series Supplement 2002-2, dated
as of February 21, 2002 (the "Series Supplement" and, together with the
Agreement, the "Trust Agreement"), between the Depositor and the Trustee; and
WHEREAS, in connection with the creation of the Trust and the deposit
therein of the Underlying Securities, it is desired to provide for the issuance
of trust certificates (the "Certificates") evidencing undivided interests in the
Trust and call warrants with respect to the Certificates ("Call Warrants").
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants expressed herein, it is hereby agreed by and between the Depositor,
the Warrant Agent and the Trustee that except as otherwise specified herein or
as the context may otherwise require, capitalized terms used herein but not
defined herein shall have the respective meanings set forth below in the Series
Supplement, and as follows:
ARTICLE I - EXERCISE OF CALL WARRANTS
Section 1.1 Manner of Exercise. (a) Call Warrants may be exercised by any
holder thereof (each, a "Warrant Holder") in whole or in part on any Call Date.
The following conditions shall apply to any exercise of Call Warrants:
(i) A notice (each, a "Call Notice") specifying the number
of Call Warrants being exercised and the Call Date shall be delivered
to the Warrant Agent and the Trustee at least 5 Business Days before
such Call Date.
(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(d)(ii) of the
Series Supplement.
(vi) The Warrant Holder shall have satisfied any other
conditions to the exercise of Call Warrants set forth in Section 7(b)
of the Series Supplement.
(b) Upon exercise of Call Warrants, any Warrant Holder other than the
Depositor or any Affiliate of the Depositor shall be entitled to delivery by the
Trustee of the Called Certificates. The "Called Certificates" shall be, in the
case of the Class A-1 Certificates, Class A-1 Certificates having a Certificate
Principal Amount equal to $25 per Call Warrant, and in the case of the Class A-2
Certificates, Class A-2 Certificates having a notional balance equal to $100,000
per Call Warrant. Unless otherwise specified therein, such Call Notice shall be
deemed to be notice of an Optional Exchange pursuant to Section 7(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
or Called Underlying Securities. "Called Underlying Securities" are Underlying
Securities which represent the same percentage of the Underlying Securities as
the Called Certificates represent of the Class A-1 Certificates 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 deposit in the Certificate Account and
application pursuant to the Trust Agreement on the applicable Call Date (and,
pending such transfer, shall hold such amount for the benefit of the Warrant
Holder in a segregated trust account).
(d) Delivery of a Call Notice does not give rise to an obligation on
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
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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.
Section 1.2 Transfer of Certificates. As soon as practicable after each
surrender of Call Warrants in whole or in part on the Call Date and upon
satisfaction of all other requirements described in the Call Warrants and in
Section 1.1 hereof, the Warrant Agent shall instruct the Trustee as follows:
(a) if Call Warrants are being exercised by any Warrant Holder other
than the Depositor or any Affiliate of the Depositor, to cause the Called
Certificates to reflect the Warrant Holder's beneficial ownership of such
Certificates and if such Call Notice is also deemed to be a notice of Optional
Exchange, to cause a distribution of Underlying Securities to the Warrant Holder
in accordance with Section 7(a) of the Series Supplement, or
(b) if the Call Warrants are being exercised by the Depositor or any
Affiliate of the Depositor, to cause the Called Underlying Securities to be sold
pursuant to Section 13 of the Series Supplement and to distribute the proceeds
of such sale to the Warrant Holder.
If such exercise is in part only, the Warrant Agent shall instruct the
Trustee to authenticate new Call Warrants of like tenor, representing the
outstanding Call Warrants of the Warrant Holder and the Warrant Agent shall
deliver such Call Warrants to the Warrant Holder.
In each case, the Trustee shall act in accordance with such
instructions.
Section 1.3 Cancellation and Destruction of Call Warrants. All Call
Warrants surrendered to the Warrant Agent for the purpose of exercise (in whole
or in part) pursuant to Section 1.1 and actually exercised, or for the purpose
of transfer or exchange pursuant to Article III, shall be cancelled by the
Warrant Agent, and no Call Warrant (other than that reflecting any such transfer
or exchange) shall be issued in lieu thereof. The Warrant Agent shall destroy
all cancelled Call Warrants.
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."
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Section 2.2 Notice of Proposed Transfer; Opinions of Counsel. Prior to any
transfer of any Call Warrant or portion thereof, the Warrant Holder will give 5
Business Days (or such lesser period acceptable to the Warrant Agent) prior
written notice to the Warrant Agent of such Warrant Xxxxxx's intention to effect
such transfer.
ARTICLE III - REGISTRATION AND TRANSFER OF CALL WARRANTS, ETC.
Section 3.1 Warrant Register; Ownership of Call Warrants. The Warrant Agent
will keep a register in which the Warrant Agent will provide for the
registration of Call Warrants and the registration of transfers of Call Warrants
representing numbers of Call Warrants. The Trustee and the Warrant Agent may
treat the Person in whose name any Call Warrant is registered on 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
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:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any Business Day on or after February 21, 2007, or after the
announcement of any redemption or other unscheduled payment or sale of the
Underlying Securities.
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"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, any accrued and unpaid interest on the
notional amount of the Class A-2 Certificates being purchased pursuant to the
exercise of the Call Warrants to but excluding the Call Date, plus the
additional amount (or portion thereof, in the case of a partial call) set forth
under the heading "Value" in Schedule II to the Series Supplement (as amended)
for such Call Date or, if such Call Date is not a Distribution Date, the
immediately following Distribution Date.
"Call Warrant": As defined in the recitals.
"Called Certificates": As defined in Section 1.1(b).
"Called Underlying Securities" shall mean 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.
"Closing Date": February 21, 2002.
"Depositor": As defined in the recitals.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"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.
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ARTICLE V - WARRANT AGENT
Section 5.1 Limitation on Liability. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of the Call 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
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not be liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer.
(g) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Call Warrants
or other securities of the Trust or otherwise act as fully and freely as though
it were not Warrant Agent hereunder, so long as such persons do so in full
compliance with all applicable laws. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Trust, the Depositor or for any
other legal entity.
(h) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the Trust
hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into the Call Warrants against the
Warrant Agent, whose duties shall be determined solely by the express provisions
thereof. The Warrant Agent shall not be deemed to be a fiduciary.
(j) The Warrant Agent shall not be responsible for any failure on the
part of the Trustee to comply with any of its covenants and obligations
contained herein.
(k) The Warrant Agent shall not be under any obligation or duty to
institute, appear in or defend any action, suit or legal proceeding in respect
hereof, unless first indemnified to its satisfaction, but this provision shall
not affect the power of the Warrant Agent to take such action as the Warrant
Agent may consider proper, whether with or without such indemnity. The Warrant
Agent shall promptly notify the Depositor and the Trustee in writing of any
claim made or action, suit or proceeding instituted against it arising out of or
in connection with the Call Warrants.
(l) The Trustee will perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as may be required by the Warrant Agent in
order to enable it to carry out or perform its duties hereunder.
Section 5.3 Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties hereunder upon thirty (30) days notice in writing
mailed to the Depositor and the Trustee by registered or certified mail, and to
the Warrant Holders by first-class mail at the expense of the Depositor;
provided that no such resignation or discharge shall become effective until a
successor Warrant Agent shall have been appointed hereunder. The Depositor may
remove the Warrant Agent or any successor Warrant Agent upon thirty (30) days
notice in writing, mailed to the Warrant Agent or successor Warrant Agent, as
the case may be, and to the Warrant Holders by first-class mail; provided
further that no such removal shall become effective until a successor Warrant
Agent shall have been appointed hereunder. If the Warrant Agent shall resign or
be removed or shall otherwise become incapable of acting, the Depositor shall
promptly appoint a successor to the Warrant Agent, which may be designated as
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an interim Warrant Agent. If an interim Warrant Agent is designated, the
Depositor shall then appoint a permanent successor to the Warrant Agent, which
may be the interim Warrant Agent. If the Depositor shall fail to make such
appointment of a permanent successor within a period of thirty (30) days after
such removal or within sixty (60) days after notification in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or by
the Warrant Holder, then the Warrant Agent or registered Warrant Holder may
apply to any court of competent jurisdiction for the appointment of such a
successor. Any successor to the Warrant Agent appointed hereunder must be rated
in one of the four highest rating categories by the Rating Agencies. Any entity
which may be merged or consolidated with or which shall otherwise succeed to
substantially all of the trust or agency business of the Warrant Agent shall be
deemed to be the successor Warrant Agent without any further action.
ARTICLE VI - MISCELLANEOUS
Section 6.1 Remedies. The remedies at law of the Warrant Holder in the
event of any default or threatened default by the Warrant Agent in the
performance of or compliance with any of the terms of the Call Warrants are not
and will not be adequate and, to the full extent permitted by law, such terms
may be specifically enforced by a decree for the specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms thereof or otherwise.
Section 6.2 Limitation on Liabilities of Warrant Holder. Nothing contained
in this Warrant Agent Agreement shall be construed as imposing any obligation on
the Warrant Holder to purchase any of the Certificates except in accordance with
the terms thereof.
Section 6.3 Notices. All notices and other communications under this
Warrant Agent Agreement shall be in writing and shall be delivered, or mailed by
registered or certified mail, return receipt requested, by a nationally
recognized overnight courier, postage prepaid, addressed (a) if to any Warrant
Holder, at the registered address of such Warrant Holder as set forth in the
register kept by the Warrant Agent or (b) if to the Warrant Agent, to 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust or to
such other address notice of which the Warrant Agent shall have given to the
Warrant Holder and the Trustee or (c) if to the Trust or the Trustee, to the
Corporate Trust Office (as set forth in the Trust Agreement); provided that the
exercise of any Call Warrants shall be effective in the manner provided in
Article I. The Warrant Agent shall forward to the Warrant Holder any notices
received by it hereunder or pursuant to the Trust Agreement or this Agreement by
facsimile within one Business Day of receipt thereof.
Section 6.4 Amendment. (a) This Warrant Agent Agreement may be amended from
time to time by the Depositor, the Trustee and the Warrant Agent without the
consent of any Warrant Holder, upon receipt of an opinion of counsel
satisfactory to the Warrant Agent that the 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
8
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.
(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 or (c) the liquidation, disposition, or
maturity of all of the Underlying Securities.
Section 6.6 Descriptive Headings. The headings in this Warrant Agent
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 6.7 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section 6.8 Judicial Proceedings; Waiver of Jury. Any judicial proceeding
brought against the Trust, the Trustee or the Warrant Agent with respect to this
Warrant Agent
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Agreement may be brought in any court of competent jurisdiction in the County of
New York, State of New York or of the United States of America for the Southern
District of New York and, by execution and delivery of the Call Warrants, the
Trustee on behalf of the Trust and the Warrant Agent (a) accept, generally and
unconditionally, the nonexclusive jurisdiction of such courts and any related
appellate court, and irrevocably agree that the Trust, the Trustee and the
Warrant Agent shall be bound by any judgment rendered thereby in connection with
this Warrant Agent Agreement or the Call Warrants, subject to any rights of
appeal, and (b) irrevocably waive any objection that the Trust, the Trustee or
the Warrant Agent may now or hereafter have as to the venue of any such suit,
action or proceeding brought in such a court or that such court is an
inconvenient forum.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the Warrant
Holder by its acceptance thereof, and (ii) the Warrant Agent agrees, that it
shall not (and, in the case of the Warrant Holder, that it shall not direct the
Warrant Agent to), until the date which is one year and one day after the
payment in full of the Certificates and all other securities issued by the
Trust, the Depositor or entities formed, established or settled by the
Depositor, acquiesce, petition or otherwise invoke or cause the Trust, the
Depositor, or any such other entity to invoke the process of the United States
of America, any State or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government for the purpose of commencing or
sustaining a case by or against the Trust, the Depositor or any such other
entity under a federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust, the Depositor or any such other entity or
all or any part of the property or assets of Trust, the Depositor or any such
other entity or ordering the winding up or liquidation of the affairs of the
Trust, the Depositor or any such other entity.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
XXXXXX ABS CORPORATION,
as Depositor
By:____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee and Authenticating Agent
By:_____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:_____________________________
Name:
Title:
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