Exhibit 7
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
BOEING NOTE-BACKED SERIES 2003-7 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
CORPORATE BACKED TRUST CERTIFICATES
Dated as of March 21, 2003
Table of Contents
Page
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Section 1. Incorporation of Standard Terms...................................1
Section 2. Definitions.......................................................1
Section 3. Designation of Trust and Certificates.............................8
Section 4. Trust Certificates...............................................11
Section 5. Distributions....................................................11
Section 6. Trustee's Fees...................................................14
Section 7. Optional Call; Optional Exchange.................................14
Section 8. Notices of Events of Default.....................................19
Section 9. Miscellaneous....................................................20
Section 10. Governing Law...................................................23
Section 11. Counterparts....................................................23
Section 12. Termination of the Trust........................................23
Section 13. Sale of Underlying Securities; Optional Exchange................23
Section 14. Amendments......................................................24
Section 15. Voting of Underlying Securities, Modification of Indenture......24
Section 16. Additional Depositor Representation.............................25
SCHEDULE I SERIES 2003-7 UNDERLYING SECURITIES 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
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SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
BOEING NOTE-BACKED SERIES 2003-7 TRUST
SERIES SUPPLEMENT, Boeing Note-Backed Series 2003-7, dated as of March
21, 2003 (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 Boeing Note-Backed Series 2003-7 Certificates and
the transactions described herein.
Section 2. Definitions.
(a) Except as otherwise specified herein or as the context may otherwise
require, the following terms shall have the respective meanings set forth below
for all purposes under this Series Supplement. (Section 2(b) below sets forth
terms listed in the Standard Terms which are not applicable to this Series.)
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Standard Terms.
"Accredited Investor" shall mean a Person that qualifies as an
"accredited investor" within the meaning of Rule 501(a) under the Securities
Act.
"Administrative or Judicial Action" shall mean any judicial decision,
official administrative pronouncement, ruling, regulatory procedure, regulation,
notice or announcement, including any notice or announcement of intent to adopt
or promulgate any ruling, regulatory procedure or regulation.
"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.
"Calculation Agent" shall mean Xxxxxx ABS Corporation or such
affiliate thereof as shall be designated by Xxxxxx ABS Corporation.
"Call Date" shall mean any Business Day that any holder of Call
Warrants designates as a Call Date occurring (i) on or after March 21, 2008,
(ii) after the Underlying Securities Issuer announces that it will redeem,
prepay or otherwise make an unscheduled payment on the Underlying Securities,
(iii) after the Trustee notifies the Certificateholders of any proposed sale of
the Underlying Securities pursuant to the provisions of this Series Supplement
or (iv) on which a tender offer for some or all of the Underlying Securities is
consummated.
"Call Notice" shall have the meaning specified in Section 1.1 of the
Warrant Agent Agreement.
"Call Price" shall mean, for each related Call Date, (i) in the case
of the Class A-1 Certificates, 100% of the outstanding Certificate Principal
Balance of the Class A-1 Certificates being purchased pursuant to the exercise
of the Call Warrants, plus any accrued and unpaid interest on such amount to but
excluding the Call Date and, (ii) in the case of the Class A-2 Certificates, the
present value of all amounts that would otherwise have been payable on the Class
A-2 Certificates being purchased pursuant to the exercise of the Call Warrants
for the period from the related Call Date to the Final Scheduled Distribution
Date using a discount rate of 7.25% per annum, assuming no delinquencies,
deferrals, redemptions or prepayments on the Underlying Securities shall occur
after the related Call Date.
"Call Warrants" shall have the meaning specified in Section 3 hereof.
"Called Certificates" shall have the meaning specified in Section 1.1
(b) of the Warrant Agent Agreement.
"Certificate Principal Balance" shall have the meaning specified in
Section 3 hereof.
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"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 6.05% per annum) of (i) any unpaid interest due or to
become due on the Class A-1 Certificates and (ii) the outstanding Certificate
Principal Balance of the Class A-1 Certificates (in each case assuming that the
Class A-1 Certificates were paid when due and were not redeemed or prepaid prior
to their stated maturity).
"Class A-1 Certificates" shall mean the Certificates, in the form
attached hereto as Exhibit A-1, to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described herein and in
the Certificates.
"Class A-2 Allocation" shall mean the present value (discounted at the
rate of 6.05% per annum) of any unpaid amounts due or to become due on the
outstanding notional amount of the Class A-2 Certificates (assuming that the
Class A-2 Certificates were paid when due and were not redeemed or prepaid prior
to their stated maturity).
"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 March 21, 2003.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Period" shall mean, (i) with respect to each August
Distribution Date, the period beginning on the day after the February
Distribution Date of such year and ending on such August Distribution Date,
inclusive and, (ii) with respect to each February Distribution Date, the period
beginning on the day after the August Distribution Date of the prior year and
ending on such February Distribution Date, inclusive; provided, however, that
clauses (i) and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank Trust
National Association located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency" shall mean United States Dollars.
"Depository" shall mean The Depository Trust Company, its nominees and
their respective successors.
"Distribution Date" shall mean February 15th and August 15th of each
year (or if such date is not a Business Day, the next succeeding Business Day),
commencing on August 15, 2003, and ending on the earlier of the Final Scheduled
Distribution Date and any date on which all Underlying Securities are redeemed
pursuant to the Indenture or prepaid or liquidated in whole for any reason other
than at their maturity.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" shall mean (i) a default in the payment of any
interest on any Underlying Security after the same becomes due and payable
(subject to any applicable grace period), (ii) a default in the payment of the
principal of or any installment of principal of any Underlying Security when the
same becomes due and payable, and (iii) any other event specified as an "Event
of Default" in the Indenture.
"Exchange Act" shall mean the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Final Scheduled Distribution Date" shall mean the Distribution Date
in February 2033, or if such day is not a Business Day, the next succeeding
Business Day.
"Indenture" shall mean the indenture among the Underlying Securities
Issuer and the Underlying Securities Trustee, pursuant to which the Underlying
Securities were issued.
"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.
"Plan" means (a) an employee benefit plan (as defined in Section 3(3)
of ERISA), (b) a plan described in Section 4975(e)(1) of the Code or (c) any
entity whose underlying assets are treated as assets of any such plan by reason
of such plan's investment in the entity.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated
March 12, 2003, as supplemented by a Supplement to the Prospectus Supplement,
dated March 20, 2003, relating to the Certificates.
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"QIB" shall have the meaning set forth in Section 3(e) hereof.
"Rating Agency" shall mean Moody's and S&P.
"Record Date" shall mean, with respect to each Distribution Date, the
day immediately preceding the related Distribution Date.
"Required Percentage--Amendment" shall be 66-2/3% of the aggregate
Voting Rights, unless the subject amendment requires the vote of holders of only
one class of Certificates pursuant to the Standard Terms, in which case 66-2/3%
of the Voting Rights of such Class.
"Required Percentage--Direction of Trustee" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage--Remedies" shall be 66-2/3% of the aggregate
Voting Rights.
"Required Percentage--Removal" shall be 66-2/3% of the aggregate
Voting Rights.
"Required Rating" shall mean, in the case of Moody's, the rating
assigned to the Underlying Securities by Moody's as of the Closing Date, and, in
the case of S&P, the rating assigned to the Underlying Securities by S&P as of
the Closing Date.
"Resale Restriction Termination Date" shall have the meaning set forth
in Section 3(e) hereof.
"Rule 144A" shall have the meaning set forth in Section 3(e) hereof.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SEC Reporting Failure" shall have the meaning set forth in Section
5(i) hereof.
"Securities Act" shall mean the United States Securities Act of 1933,
as amended.
"Series" shall mean Boeing Note-Backed Series 2003-7.
"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, the Certificate Account and any additional Underlying
Securities sold to the Trust pursuant to Section 3(d) hereof.
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"Underlying Securities" shall mean $41,270,000 aggregate principal
amount of 6 1/8% Notes, due 2033, 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 The Boeing Company.
"Underlying Securities Trustee" shall mean JPMorgan Chase Bank.
"Underwriters" shall mean Xxxxxx Brothers Inc. and Banc of America
Securities LLC.
"Voting Rights" shall be allocated between the holders of the Class
A-1 Certificates and the holders of the Class A-2 Certificates, pro rata, in
proportion to the ratio of the Class A-1 Allocation to the Class A-2 Allocation.
The Class A-1 Voting Rights will be allocated among Class A-1 Certificateholders
in proportion to the then unpaid Certificate Principal Balances of their
respective Certificates. The Class A-2 Voting Rights will be allocated among the
Class A-2 Certificateholders in proportion to the then outstanding notional
amounts of their respective Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust National
Association.
"Warrant Agent Agreement" shall mean that certain Warrant Agent
Agreement, dated as of the date hereof, between the Depositor and U.S. Bank
Trust National Association, as Warrant Agent and as Trustee, as the same may be
amended from time to time.
"Warrant Holder" shall mean the holder of a Call Warrant.
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
"Cut-off Date"
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"Eligible Expense"
"Eligible Investments"
"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"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
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"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, Boeing Note-Backed
Series 2003-7 Trust." The Certificates evidencing certain undivided ownership
interests therein shall be known as "Corporate Backed Trust Certificates, Boeing
Note-Backed Series 2003-7." The Certificates shall consist of the Class A-1
Certificates and the Class A-2 Certificates (together, the "Certificates"). The
Trust is also issuing call warrants with respect to the Certificates ("Call
Warrants").
(a) The Class A-1 Certificates shall be held through the Depository in
book-entry form and shall be substantially in the form attached hereto as
Exhibit A-1. The Class A-2 Certificates shall initially be held through the
Depository in book-entry form and, as set forth in Section 3(e) below, shall be
held in physical form or through the Depository in book-entry form and shall be
substantially in the form attached hereto as Exhibit 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 consist of 1,650,800 Certificates having an
initial aggregate certificate principal amount (the "Certificate Principal
Balance") of $41,270,000. The Class A-2 Certificates are interest-only
Certificates and shall have an initial aggregate notional amount equal to the
initial Certificate Principal Balance of the Class A-1 Certificates.
(c) The holders of the Class A-1 Certificates will be entitled to receive
on each Distribution Date the interest, if any, received on the Underlying
Securities, to the extent necessary to pay interest at a rate of 6.05% per annum
on the outstanding Certificate Principal Balance 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 0.075% per annum on the
outstanding notional amount of the Class A-2 Certificates, which notional amount
shall be equal to the Certificate Principal Balance of the Class A-1
Certificates. On the Distribution Date occurring in August 2003, the Trustee
shall cause the Trust to pay to the Depositor the amount of interest accrued and
paid on the Underlying Securities from February 11, 2003, to but not including
the Closing Date; provided, however, that in the event an Optional Exchange Date
shall occur prior to the Distribution Date in August 2003, a pro rata portion of
such amount shall be paid to the Depositor on the Optional Exchange Date in
accordance with the provisions of Section 7(b)(ix)
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hereof. If the Depositor is not paid any such amount on such date, it shall have
a claim for such amount. If Available Funds are insufficient to pay such amount,
the Trustee will pay the Depositor its pro rata share, based on the ratio the
amount owed to the Depositor bears to all amounts owed on the Certificates in
respect of accrued interest, of any proceeds from the recovery on the Underlying
Securities.
(d) The Depositor may sell to the Trustee additional Underlying Securities
on any date hereafter upon at least 3 Business Days' notice to the Trustee (or
such shorter period as shall be mutually satisfactory to the Depositor and the
Trustee) and upon (i) satisfaction of the Rating Agency Condition and (ii)
delivery of an Opinion of Counsel to the effect that the sale of such additional
Underlying Securities will not cause the Trust to be taxed as an association or
publicly traded partnership taxable as a corporation for federal income tax
purposes. Each condition to be satisfied with respect to a sale of Underlying
Securities on or prior to the Closing Date shall be satisfied with respect to a
sale of additional Underlying Securities no later than the date of sale thereof,
each representation and warranty set forth in the Standard Terms to be made on
the Closing Date shall be made on such date of sale, and from and after such
date of sale, all Underlying Securities held by the Trustee shall be held on the
same terms and conditions. Upon such sale to the Trustee, the Trustee shall
deposit such additional Underlying Securities in the Certificate Account, and
shall authenticate and deliver to the Depositor, on its order, Class A-1
Certificates in a Certificate Principal Balance, and Class A-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.
(e) No Class A-2 Certificate may be offered, resold, assigned or otherwise
transferred (including by pledge or hypothecation) at any time prior to (x) the
date which is two years or such shorter period of time as permitted by Rule
144(k) under the Securities Act after the later of the original issue date of
such Class A-2 Certificates and the last date on which the Depositor or any
"affiliate" (as defined in Rule 144 under the Securities Act) of the Depositor
was the owner of such Class A-2 Certificates (or any predecessor thereto) or (y)
such later date, if any, as may be required by a change in applicable securities
laws (the "Resale Restriction Termination Date") unless such offer, resale,
assignment or transfer is (i) to the Trust, (ii) pursuant to an effective
registration statement under the Securities Act, (iii) to a qualified
institutional buyer (a "QIB"), as such term is defined in Rule 144A promulgated
under the Securities Act ("Rule 144A"), in accordance with Rule 144A or (iv)
pursuant to another available exemption from registration provided under the
Securities Act (including transfers to Accredited Investors), and, in each of
cases (i) through (iv), in accordance with any applicable securities laws of any
state of the United States and other jurisdictions. Prior to any offer, resale,
assignment or transfer of any Class A-2 Certificates in the manner described in
clause (iii) above, the prospective transferee and the prospective transferor
shall be required to deliver to the Trustee an executed copy of an Investment
Letter with respect to the Class A-2 Certificates to be transferred
substantially in the form of Exhibit C hereto and in the event the resale,
assignment or transfer shall involve Class A-2 Certificates then being held in
physical form, such A-2 Certificates shall be delivered to the Trustee for
cancellation and the Trustee shall instruct the Depository to increase the
aggregate notional amount of the Class A-2 Certificates held in book-entry form
by an amount equal to the aggregate notional amount of Class A-2 Certificates so
resold, assigned or
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transferred and to issue a beneficial interest in such global Class A-2
Certificates to such transferee. Prior to any offer, resale, assignment or
transfer of any Class A-2 Certificates in the manner described in clause (iv)
above, the prospective transferee and the prospective transferor shall be
required to deliver to the Trustee documentation certifying that the offer,
resale, assignment or transfer complies with the provisions of said clause (iv)
and, in the event any such Class A-2 Certificate shall then be held in
book-entry form and such resale, assignment or transfer shall be to an
Accredited Investor that is not a QIB, the Trustee shall instruct the Depository
to decrease the aggregate notional amount of the Class A-2 Certificates held in
book-entry form and the Trustee shall authenticate and deliver one or more Class
A-2 Certificates in physical form in an aggregate notional amount equal to the
amount of Class A-2 Certificates resold, assigned or transferred. In addition to
the foregoing, each prospective transferee of any Class A-2 Certificates in the
manner contemplated by clause (iii) above shall acknowledge, represent and agree
as follows:
(1) The transferee (x) is a QIB, (y) is aware that the sale to it is being
made in reliance on Rule 144A and (z) is acquiring such Class A-2
Certificates for its own account or for the account of a QIB.
(2) The transferee understands that the Class A-2 Certificates are being
offered in a transaction not involving any public offering in the
United States within the meaning of the Securities Act, and that the
Class A-2 Certificates have not been and will not be registered under
the Securities Act.
(3) The transferee agrees that (A) if in the future it decides to offer,
resell, pledge or otherwise transfer the Class A-2 Certificates prior
to the Resale Restriction Termination Date, such Class A-2
Certificates shall only be offered, resold, assigned or otherwise
transferred (i) to the Trust, (ii) pursuant to an effective
registration statement under the Securities Act, (iii) to a QIB, in
accordance with Rule 144A or (iv) pursuant to another available
exemption from registration provided under the Securities Act
(including any transfer to an Accredited Investor), and, in each of
cases (i) through (iv), in accordance with any applicable securities
laws of any state of the United States and other jurisdictions and (B)
the transferee will, and each subsequent holder is required to, notify
any subsequent purchaser of such Class A-2 Certificates from it of the
resale restrictions referred to in clause (A) above.
(f) The Class A-2 Certificates will, unless otherwise agreed by the
Depositor and the Trustee, bear a legend substantially to the following effect:
"THIS CLASS A-2 CERTIFICATE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION
THEREFROM UNDER SUCH ACT. THE CLASS A-2 CERTIFICATE REPRESENTED HEREBY
MAY BE
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TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE SERIES
SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2 CERTIFICATE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS CLASS A-2 CERTIFICATE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER."
Section 4. Trust Certificates. The Trustee hereby acknowledges receipt, on
or prior to the Closing Date, of:
(a) the Underlying Securities set forth on Schedule I hereto; and
(b) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Standard Terms.
Section 5. Distributions.
(a) Except as otherwise provided in Sections 3(c), 5(c), 5(d) and 5(i), on
each applicable Distribution Date (or such later date as specified in Section
9(f)), the Trustee shall apply Available Funds in the Certificate Account as
follows:
(i) The Trustee will pay the interest portion of Available Funds:
(1) 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 and 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 Balance of the Class A-1 Certificates (the Class
A-2 Certificates are not entitled to distributions of principal).
(iii) any Available Funds remaining in the Certificate Account after
the payments set forth in clauses 5(a)(i) and 5(a)(ii) above shall be paid
to the Trustee as reasonable compensation for services rendered to the
Depositor, up to $1,000.
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(iv) the Trustee will pay any Available Funds remaining in the
Certificate Account after the distributions in clauses 5(a)(i) through
5(a)(iii) above to the holders of the Class A-1 Certificates and Class A-2
Certificates pro rata in proportion to the interest rate on each such class
of Certificates.
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 tender offer, redemption, prepayment or liquidation of the Underlying
Securities and (iii) for which allocation by the Trustee is not otherwise
contemplated by this Series Supplement, shall be remitted by the Trustee to the
Depositor.
(b) [Reserved].
(c) Notwithstanding the foregoing, if the Underlying Securities are
redeemed (including as a result of an optional redemption), prepaid or
liquidated in whole or in part for any reason other than due to the occurrence
of an Event of Default, an SEC Reporting Failure, or at the Final Scheduled
Distribution Date, the Trustee shall apply Available Funds in the manner
described in Section 5(h) in the following order of priority:
(i) first, to the Trustee, as reimbursement for any Extraordinary
Trust Expenses incurred by the Trustee in accordance with
Section 6(b) below and approved by 100% of the
Certificateholders;
(ii) second, to the holders of the Class A-1 Certificates, an amount
equal to the principal amount of Underlying Securities so
redeemed, prepaid or liquidated plus accrued and unpaid
interest on the amount of Class A-1 Certificates so redeemed;
(iii) third, to the holders of the Class A-2 Certificates, an amount
not to exceed the present value of all amounts that would
otherwise have been payable on the Class A-2 Certificates for
the period from the date of such redemption or prepayment to the
Final Scheduled Distribution Date using a discount rate of 6.05%
per annum, assuming no delinquencies, deferrals, redemptions or
prepayments on the Underlying Securities;
(iv) fourth, to the Trustee, as reasonable compensation for services
rendered to the Depositor, any remainder up to $1,000; and
(v) fifth, any remainder to the holders of the Class A-1
Certificates and the Class A-2 Certificates pro rata in
proportion to the ratio of the Class A-1 Allocation to the
Class A-2 Allocation.
(d) Notwithstanding the foregoing, if the Underlying Securities are
redeemed, prepaid or liquidated in whole or in part due to the occurrence of an
Event of Default, the Trustee shall apply Available Funds to the holders of the
Class A-1 Certificates and the holders of the Class A-2 Certificates in
accordance with the ratio of the Class A-1 Allocation to the Class A-2
Allocation.
12
(e) Unless otherwise instructed by holders of Certificates representing a
majority of the Voting Rights, thirty (30) days after giving notice pursuant to
Section 8 hereof, the Trustee shall sell the Underlying Securities pursuant to
Section 13 hereof and deposit the Liquidation Proceeds, if any, into the
Certificate Account for distribution not later than two (2) Business Days after
the receipt of immediately available funds in accordance with Section 5(d)
hereof, provided, however, that if any Warrant Holder designates any day on or
prior to the proposed sale date as a Call Date and Optional Exchange Date
pursuant to Section 7, the portion of Underlying Securities related to such
Optional Exchange shall not be sold but shall be distributed to the Warrant
Holder pursuant to Section 7 and the Warrant Agent Agreement.
(f) If the Trustee receives non-cash property in respect of the Underlying
Securities as a result of a payment default on the Underlying Securities
(including from the sale thereof), the Trustee will promptly give notice to the
Depository, or for any Certificates which are not then held by DTC or any other
depository, directly to the registered holders of the Certificates then
outstanding and unpaid and to the Warrant Agent. Such notice shall state that
the Trustee shall and the Trustee shall, not later than 30 days after the
receipt of such property, allocate and distribute such property to the holders
of Class A-1 Certificates and Class A-2 Certificates then outstanding and unpaid
(after deducting the costs incurred in connection therewith) in accordance with
Section 5(d) hereof. Property other than cash will be liquidated by the Trustee,
and the proceeds thereof distributed in cash, only to the extent necessary to
avoid distribution of fractional securities to Certificateholders. In-kind
distribution of such property to Certificateholders, based on the market value
of such property as of the date of distribution to Certificateholders, will be
deemed to reduce the Certificate Principal Balance of the Class A-1 Certificates
on a dollar-for-dollar basis. The outstanding notional amounts of the Class A-2
Certificates shall be reduced, pro rata among all Class A-2 Certificateholders,
by an amount equal to the amount by which the Certificate Principal Balance of
the Class A-1 Certificates is reduced.
(g) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any scheduled interest or principal payments on any class
of Certificates on any Distribution Date, any shortfall will be carried over and
will be distributed on the next Distribution Date (or date referred to in
Section 5(h) hereof) on which sufficient funds are available to pay such
shortfall.
(h) If a payment with respect to the Underlying Securities is made to the
Trustee (i) after the payment date of the Underlying Securities on which such
payment was due or (ii) in connection with redemption, prepayment or
liquidation, in whole or in part, of the Underlying Securities for any reason
other than due to the occurrence of an Event of Default, an SEC Reporting
Failure or at their maturity, the Trustee will distribute any such amounts
received in accordance with the provisions of this Section 5 on the next
occurring Business Day (a "Special Distribution Date") as if the funds had
constituted Available Funds on the Distribution Date immediately preceding such
Special Distribution Date; provided, however, that the Record Date for such
Special Distribution Date shall be one Business Day prior to the day on which
the related payment was received with respect to the Underlying Securities.
(i) Notwithstanding Section 3.12 of the Standard Terms, if the Underlying
Securities Issuer ceases to file periodic reports as required under the Exchange
Act, the Depositor shall
13
within a reasonable time instruct the Trustee to (i) notify the Warrant Agent
that the Underlying Securities are proposed to be sold and that any Call
Warrants and related Optional Exchange rights must be exercised no later than
the date specified in the notice (which shall be not less than ten Business Days
after the date of such notice) and (ii) to the extent that the Warrant Holders
fail to exercise their Call Warrants and related Optional Exchange rights on or
prior to such date, to sell the Underlying Securities and distribute the
proceeds of such sale to the Certificateholders in accordance with the following
order of priority: first, to the Trustee, as reimbursement for any Extraordinary
Trust Expenses incurred by the Trustee in accordance with Section 6(b) below and
approved by 100% of the Certificateholders; and second, any remainder to the
holders of the Class A-1 Certificates and the Class A-2 Certificates pro rata in
proportion to the ratio of the Class A-1 Allocation to the Class A-2 Allocation,
as determined by the Calculation Agent; provided, however, the Depositor shall
not instruct the Trustee to sell the Underlying Securities (or provide a notice
of such instruction to the Warrant Agent) pursuant to this clause unless the
Underlying Securities Issuer has either (x) stated in writing that it intends
permanently to cease filing reports required under the Exchange Act or (y)
failed to file all required periodic reports for one full year (an "SEC
Reporting Failure").
(j) On any date on which Underlying Securities are redeemed, prepaid or
liquidated for any reason, the aggregate outstanding notional amount of the
Class A-2 Certificates shall be reduced by an amount equal to the principal
amount of the Underlying Securities so redeemed, prepaid or liquidated, the
reduction for the Class A-2 Certificates to be allocated pro rata among all
Class A-2 Certificates.
Section 6. Trustee's Fees.
(a) As compensation for its services hereunder, the Trustee shall be
entitled to the Trustee Fee and any amounts payable under clauses 5(a)(iii) and
5(b)(iv) above. The Trustee Fee shall be paid by the Depositor and not from
Trust Property. The Trustee shall bear all Ordinary Expenses. Failure by the
Depositor to pay such amount shall not entitle the Trustee to any payment or
reimbursement from the Trust, nor shall such failure release the Trustee from
the duties it is required to perform under the Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust Property
unless all the holders of the Class A-1 Certificates and Class A-2 Certificates
then outstanding have directed the Trustee to incur such Extraordinary Expenses.
The Trustee may incur other Extraordinary Expenses if any lesser percentage of
the Certificateholders requesting such action pursuant hereto reimburse the
Trustee for the cost thereof from their own funds in advance. If Extraordinary
Expenses are not approved unanimously as set forth in the first sentence of this
Section 6(b), such Extraordinary Expenses shall not be an obligation of the
Trust, and the Trustee shall not file any claim against the Trust therefor
notwithstanding failure of Certificateholders to reimburse the Trustee.
Section 7. Optional Call; Optional Exchange.
(a) On (A) any Distribution Date, (B) any date on which a tender offer for
some or all of the Underlying Securities is consummated or (C) any date on which
the Underlying Securities are to be redeemed by the Underlying Securities
Issuer, any holder of Class A-1 Certificates,
14
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.
15
(vii) The provisions of Section 4.07 of the Standard Terms shall
not apply to an Optional Exchange pursuant to this Section 7(b). This
Section 7(b) shall not provide any person with a lien against, an
interest in or a right to specific performance with respect to the
Underlying Securities; provided that satisfaction of the conditions
set forth in this Section 7(b) shall entitle the Certificateholder or
Warrant Holder, as applicable, to a distribution thereof.
(viii) The aggregate principal amount of Certificates exchanged
in connection with any Optional Exchange pursuant to this Section
shall be in an amount that will entitle the Certificateholders thereof
to Underlying Securities in an even multiple of the minimum
denomination of such Underlying Securities.
(ix) In the event such Optional Exchange shall occur prior to the
Distribution Date in August 2003, the Certificateholders shall have
paid to the Trustee, for distribution to the Depositor, on the
Optional Exchange Date an amount equal to the sum obtained by
multiplying the amount of accrued interest on the Underlying
Securities from February 11, 2003 through, but excluding, the Closing
Date by a fraction, the numerator of which shall be the number of
Certificates being exchanged on such Optional Exchange Date and the
denominator of which shall be the total number of Certificates.
(c) Concurrently with the execution of this Series Supplement, the Trustee,
on behalf of the Trust, shall execute the Warrant Agent Agreement and the Call
Warrants, dated as of the date hereof and substantially in the form of Exhibit B
hereto, initially evidencing all of the Call Warrants. The Trustee shall perform
the Trust's obligations under the Warrant Agent Agreement and the Call Warrants
in accordance with their respective terms.
(d) Call Warrants may be exercised by the Warrant Holder in whole or in
part on any Call Date. In addition to the conditions set forth in Section 1.1 of
the Warrant Agent Agreement, the following conditions shall apply to any
Optional Call.
(i) An opinion of counsel to the Warrant Holder shall have been
delivered to the Rating Agencies, in form satisfactory to the Rating
Agencies, indicating that payment of the Call Price shall not be
recoverable as a preferential transfer or fraudulent conveyance under the
United States Bankruptcy Code. Such opinion may contain customary
assumptions and qualifications.
(ii) The Warrant Holder shall have provided a certificate of solvency
to the Trustee.
(iii) Upon receipt of a Call Notice, the Trustee shall provide a
conditional call notice to the Depository not less than 3 Business Days
prior to the Call Date.
(iv) Delivery of a Call Notice does not give rise to an obligation on
the part of the Warrant Holder to pay the Call Price. If, by 10:00 a.m.
(New York City time) on the Call Date, the Warrant Holder has not paid the
Call Price, except in connection with a Call Notice relating to a tender
offer for or redemption of the Underlying Securities, then the Call Notice
shall automatically expire and none of the Warrant Holder, the Warrant
Agent or the Trustee shall have any obligation with respect to the Call
Notice. The
16
expiration of a Call Notice shall in no way affect the Warrant Xxxxxx's
right to deliver a Call Notice at a later date. The Call Price for a call
in connection with a tender offer or redemption shall be deducted from the
proceeds of a tender offer or redemption by the Trust pursuant to Section
7(g)(iii) or Section 7(h)(iii), as applicable.
(v) Subject to receipt of the Call Price, the Trustee shall pay the
applicable portion of the Call Price to the Class A-1 and Class A-2
Certificateholders on the Call Date. The Call Price for each Class of
Certificates in respect of partial calls shall be allocated pro rata to the
Certificateholders of such Class.
(vi) The Trustee shall not consent to any amendment or modification of
this Agreement (including the Standard Terms) which would adversely affect
the Warrant Holders (including, without limitation, any alteration of the
timing or amount of any payment of the Call Price or any other provision of
this Agreement in a manner adverse to the Warrant Holders) without the
prior written consent of 100% of the Warrant Holders. For purposes of this
clause, no amendment, modification or supplement required to provide for
any purchase by the Trustee of additional Underlying Securities and
authentication and delivery by the Trustee of additional Certificates and
Call Warrants pursuant to Section 3(d) shall be deemed to adversely affect
the Warrant Holders.
(vii) The Trustee shall not be obligated to determine whether an
Optional Call complies with the applicable provisions for exemption under
Rule 3a-7 of the Investment Company Act of 1940, as amended, or the rules
or regulations promulgated thereunder.
(e) This Section 7 shall not provide the Warrant Holder with a lien
against, an interest in or a right to specific performance with respect to the
Underlying Securities; provided that satisfaction of the conditions set forth in
Section 7(b) shall entitle the Certificateholders or the Warrant Holders, as
applicable, to a distribution of the Underlying Securities.
(f) The rights of the Certificateholders under the Trust Agreement and the
Certificates are limited by the terms, provisions and conditions of the Trust
Agreement, the Warrant Agent Agreement and the Call Warrants with respect to the
exercise of the Call Warrants by the Warrant Holder. The Certificateholders, by
their acceptance of Certificates, covenant and agree to tender any and all
Called Certificates to the Trustee upon the Warrant Holder's exercise of Call
Warrants and payment of the Call Price for such Certificates in accordance with
the provisions hereof and of the Warrant Agent Agreement.
(g) (i) If the Trustee receives notice of a tender offer for some or all of
the Underlying Securities, the Trustee shall within one Business Day notify the
Warrant Agent and forward to the Warrant Agent copies of all materials received
by the Trustee in connection therewith. If the Trustee receives a Call Notice
from any Warrant Holder no later than five Business Days prior to the expiration
of the tender offer acceptance period that such Warrant Holder desires to
exercise all or a portion of its Call Warrants in connection with the
consummation of any such tender offer, then the Trustee shall tender, in
compliance with the tender offer requirements, an amount of Underlying
Securities equal to the amount of Underlying Securities that would be
distributable to the Warrant Holder with respect to an Optional
17
Exchange of the Called Certificates called by such Warrant Holder; provided that
any Optional Call or Optional Exchange undertaken in connection with any such
tender offer shall be subject to the provisions of Section 7 hereof.
(ii) The Call Date and Optional Exchange Date for any exercise of Call
Warrants in connection with a tender offer shall be deemed to be the
Business Day on which such Underlying Securities are accepted for payment
and paid for.
(iii) The Call Price shall be deducted from the tender offer proceeds
and paid to Certificateholders in connection with Section 7(d)(v), and the
excess of the tender offer proceeds over the Call Price shall be paid to
the exercising Warrant Holders pro rata in respect to their proportionate
exercises of Call Warrants or, if the Call Price exceeds the tender offer
proceeds, the amount of such excess shall be paid by the exercising Warrant
Holders pro rata in respect to their proportionate exercises of Call
Warrants.
(iv) If fewer than all tendered Underlying Securities are accepted for
payment and paid for, (A) the amount of Call Warrants exercised shall be
reduced to an amount that corresponds to a number of Certificates that
could be exchanged in an Optional Exchange for the Underlying Securities
accepted for payment and paid for (without regard to any restrictions on
the amount to be exchanged, so long as such restrictions would have been
satisfied had all tendered Underlying Securities been accepted for payment
and paid for); (B) each Warrant Holder's exercise shall be reduced by its
share (proportionate to the amount specified in its exercise notice) of the
amount of Underlying Securities not accepted for payment and paid for; (C)
the Call Price shall be determined after giving effect to the reduction
specified in clause (B); (D) the Call Warrants that relate to the reduction
specified in clause (B) shall remain outstanding; and (E) the excess of the
tender offer proceeds over the Call Price shall be allocated in proportion
to the amount of Call Warrants deemed exercised as set forth in clause (A)
above or, if the Call Price exceeds the tender offer proceeds the amount of
such excess shall be paid by the exercising Warrant Holders pro rata in
respect to their proportionate exercises of Call Warrants.
(v) If the tender offer is terminated by the Underlying Securities
Issuer or any other tender offeror without consummation thereof or if all
tenders by the Trust of Underlying Securities are otherwise rejected, then
(1) the Call Notices will be of no further force and effect, and (2) any
Call Warrants relating to such Call Notices will not be exercised and will
remain outstanding.
(h) (i) If the Trustee receives notice of a redemption by the Underlying
Securities Issuer for some or all of the Underlying Securities, the Trustee
shall, within three Business Days, notify the Warrant Agent and forward to the
Warrant Agent copies of all materials received by the Trustee in connection
therewith. Any Warrant Holder that desires to call Underlying Securities in
connection with a redemption by the Underlying Securities Issuer shall send a
Call Notice to the Trustee no later than seven Business Days prior to the date
such Underlying Securities are to be redeemed.
18
(ii) The Call Date and Optional Exchange Date for any exercise of Call
Warrants in connection with a redemption by the Underlying Securities
Issuer shall be deemed to be the Business Day on which such Underlying
Securities are redeemed by the Underlying Securities Issuer.
(iii) The Call Price shall be deducted from the redemption proceeds
and paid to the holders of the Class A-1 Certificates and Class A-2
Certificates pro rata in accordance with the provisions of Section 7(d)(v),
and the excess of the redemption proceeds over the Call Price shall be paid
to the exercising Warrant Holders pro rata in respect to their
proportionate exercises of Call Warrants.
(iv) If fewer than all Underlying Securities are redeemed by the
Underlying Securities Issuer and the amount of Call Warrants exercised
corresponds to a number of Class A-1 and Class A-2 Certificates that could
be exchanged in an Optional Exchange for a principal amount of Underlying
Securities that exceeds the principal amount of Underlying Securities
actually redeemed, then, unless otherwise directed by any exercising
Warrant Holder, (A) the amount of Call Warrants exercised shall be reduced
to an amount that corresponds to a number of Class A-1 and Class A-2
Certificates that could be exchanged in an Optional Exchange for the
principal amount of Underlying Securities redeemed by the Underlying
Securities Issuer (without regard to any restrictions on the amount to be
exchanged); (B) each Warrant Holder's exercise shall be reduced by its
share (proportionate to the amount specified in its exercise notice) of the
amount of such excess; (C) the Call Price shall be determined after giving
effect to the reduction specified in clause (B); (D) the Call Warrants that
relate to the reduction specified in clause (B) shall remain outstanding;
and (E) the excess of the redemption proceeds over the Call Price shall be
allocated in proportion to the amount of Call Warrants deemed exercised as
set forth in clause (A) above.
(v) If the Underlying Securities are not redeemed by the Underlying
Securities Issuer for any reason, then (1) the Call Notices will be of no
further force and effect, and (2) any Call Warrants relating to such Call
Notices will not be exercised and will remain outstanding.
Section 8. Notices of Events of Default.
As promptly as practicable after, and in any event within 30 days
after, the occurrence of any Event of Default actually known to the Trustee, the
Trustee shall give notice of such Event of Default to the Depository, or, if any
Certificates are not then held by DTC or any other depository, directly to the
registered holders of such Certificates, and to the Warrant Agent. However,
except in the case of an Event of Default relating to the payment of principal
of or interest on any of the Underlying Securities, the Trustee will be
protected in withholding such notice if in good faith it determines that the
withholding of such notice is in the interest of the Certificateholders.
19
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms shall
not apply to the Boeing Note-Backed Series 2003-7 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Boeing Note-Backed Series 2003-7 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 Boeing Note-Backed Series 2003-7 Certificates.
(f) If the Trustee has not received payment with respect to a Collection
Period on the Underlying Securities on or prior to the related Distribution
Date, such distribution will be made promptly upon receipt of such payment. No
additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Class A-1 Certificateholders and Class
A-2 Certificateholders pro rata in proportion to their respective entitlements
to such delayed payments.
(g) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Losses (as defined in the Standard Terms).
(h) The Trust may not engage in any business or activities other than in
connection with, or relating to, the holding, protecting and preserving of the
Trust Property and the issuance of the Certificates and the Call Warrants, and
other than those required or authorized by the Trust Agreement or incidental and
necessary to accomplish such activities. The Trust may not issue or sell any
certificates or other obligations other than the Certificates and the Call
Warrants or otherwise incur, assume or guarantee any indebtedness for money
borrowed. Notwithstanding Section 3.05 of the Standard Terms, funds on deposit
in the Certificate Account shall not be invested. Section 2.01(f) of the
Standard Terms shall be superseded by this provision.
(i) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee may be removed upon 60 days prior written notice delivered by the
holders of Class A-1 Certificates and Class A-2 Certificates representing the
Required Percentage--Removal.
(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.
20
(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) A Plan fiduciary, whether or not a Certificateholder at such time, may
request in writing that the Trustee provide such Plan fiduciary with such
information as shall be necessary for it to determine whether any of the Call
Warrant holders is (i) a "party in interest" (within the meaning of ERISA,
Section 3(14)); or (ii) a "disqualified person" within the meaning of Internal
Revenue Code ("Code") Section 4975(e)(2) with respect to any employee benefit
plan or Plan identified to the Trustee by such Plan fiduciary at the time such
request is made in order for the Plan fiduciary to determine whether an
investment in the Certificates by such Plan is or would be permissible under
ERISA or the Code. Any such written request of a Plan fiduciary shall be
accompanied by a certification of the Plan fiduciary, opinion of counsel
experienced in such issues, and such other documentation as the Trustee may
require, in order to establish that such disclosure is necessary for the Plan
fiduciary to determine compliance with ERISA and the Code, as well as a
confidentiality agreement, whereby the Plan fiduciary agrees not to disclose the
identity of any Call Warrant holders except to any legal or other experts as
necessary to make such determination. The holder of a Call Warrant shall upon
reasonable request of the Trustee, in order for the Trustee to satisfy its
obligations to a Plan fiduciary, provide the Trustee with any one or more of the
following, in the sole discretion of the Call Warrant holder: (i) a certificate
that each of the Call Warrant holders is not (x) a "party in interest" (within
the meaning of ERISA, Section 3(14)) with respect to any "employee benefit plan"
as defined in ERISA, Section 3(3); or (y) a "disqualified person" within the
meaning of Internal Revenue Code Section 4975(e)(2) with respect to a "Plan" as
defined in Code Section 4975(e)(1) except in each case with respect to plans
sponsored by the Call Warrant holder or its affiliates which cover employees of
the Call Warrant holder and/or such affiliates; (ii) a certificate that each of
the Call Warrant holders is not such a "party in interest" or "disqualified
person" with respect to any employee benefit plan or Plan identified to the
Trustee by such Plan fiduciary at the time such request is made; or (iii) a
written consent to the limited disclosure of the respective Call Warrant
holder's identity to a specific Plan fiduciary solely for purposes of allowing
the Trustee to satisfy its obligations to a Plan fiduciary.
(o) The Trust will not merge or consolidate with any other entity without
confirmation from each Rating Agency that such merger or consolidation will not
result in the qualification, reduction or withdrawal of its then-current rating
on the Certificates.
(p) All directions, demands and notices hereunder or under the Standard
Terms shall be in writing and shall be delivered as set forth below (unless
written notice is otherwise provided to the Trustee).
21
If to the Depositor, to:
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee or the Warrant Agent, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copies of all directions, demands and notices required to be given to
the Certificateholders hereunder or under the Standard Terms will also be given
to the Warrant Holders in writing as set forth in this Section 9, and copies of
all directions, demands and notices
22
required to be given to the Trustee hereunder or under the Standard Terms will
also be given to the Warrant Agent in writing as set forth in this Section 9(p).
(q) Each of the representations, covenants and agreements made herein by
each of the Depositor and the Trustee are for the benefit of the
Certificateholders and the Warrant Holders.
(r) The provisions of Section 2.01(d)(iii) of the Standard Terms shall not
apply to the Boeing Note-Backed Series 2003-7 Certificates and the following
shall be deemed to be inserted in its place:
"at the time of delivery of the Underlying Securities, the Depositor
owns such Underlying Securities, has the right to transfer its interest in such
Underlying Securities and such Underlying Securities are free and clear of any
lien, pledge, encumbrance, right, charge, claim or other security interest; and"
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. In the event of an Optional
Exchange, the Trustee shall only deliver the Underlying Securities to the
purchaser of
23
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. Unless otherwise agreed, the
Trustee shall provide five Business Days written notice to each Rating Agency
before entering into any amendment or modification of the Trust Agreement
pursuant to this Section 14.
Section 15. Voting of Underlying Securities, Modification of Indenture.
(a) The Trustee, as holder of the Underlying Securities, has the right to
vote and give consents and waivers in respect of the Underlying Securities as
permitted by the Depository and except as otherwise limited by the Trust
Agreement. In the event that the Trustee receives a request from the Depository,
the Underlying Securities Trustee or the Underlying Securities Issuer for its
consent to any amendment, modification or waiver of the Underlying Securities,
the Indenture or any other document thereunder or relating thereto, or receives
any other solicitation for any action with respect to the Underlying Securities,
the Trustee shall mail a notice of such proposed amendment, modification, waiver
or solicitation to each Certificateholder of record as of such date. The Trustee
shall request instructions from the Certificateholders as to whether or not to
consent to or vote to accept such amendment, modification, waiver or
solicitation. The Trustee shall consent or vote, or refrain from consenting or
voting, in the same proportion (based on the relative outstanding Certificate
Principal Balances of the Class A-1 Certificates) as the Certificates of the
Trust were actually voted or not voted by the Certificateholders thereof as of a
date determined by the Trustee prior to the date on which such consent or vote
is required; provided, however, that, notwithstanding anything in the Trust
Agreement to the contrary, the Trustee shall at no time vote on or consent to
any matter (i) unless such vote or consent would not (based on an opinion of
counsel) cause the Trust to be taxed as an association or publicly traded
partnership taxable as a corporation under the Code, (ii) which would alter the
timing or amount of any payment on the Underlying Securities, including, without
limitation, any demand to accelerate the Underlying Securities, except in the
event of a default under the Underlying Securities or an event which with the
passage of time would become an event of default under the Underlying Securities
and with the unanimous consent of holders of all outstanding Class A-1
Certificates, Class A-2 Certificates and all Warrant Holders, or (iii) which
would result in the exchange or substitution of any of the outstanding
Underlying Securities pursuant to a plan for the refunding or refinancing of
such Underlying Securities except in the event of a default under the Indenture
and only with the consent of Certificateholders representing 100% of the Class
A-1 Certificates, 100% of the Class A-2 Certificates and 100% of the Warrant
Holders. The Trustee shall have no liability for any failure to act resulting
from Certificateholders' late return of, or failure to return, directions
requested by the Trustee from the Certificateholders.
24
(b) In the event that an offer is made by the Underlying Securities Issuer
to issue new obligations in exchange and substitution for any of the Underlying
Securities, pursuant to a plan for the refunding or refinancing of the
outstanding Underlying Securities or any other offer is made for the Underlying
Securities, the Trustee shall notify the Class A-1 Certificateholders, Class A-2
Certificateholders and the Warrant Holders of such offer promptly. Subject to
the rights of the Warrant Holders to exercise Call Warrants in connection with a
tender offer for the Underlying Securities, the Trustee must reject any such
offer unless an Underlying Securities event of default has occurred and the
Trustee is directed by the affirmative vote of the holders of 100% of the Class
A-1 Certificates, Class A-2 Certificates and Call Warrants to accept such offer
and the Trustee has received the tax opinion described above. If pursuant to the
preceding sentence, the Trustee accepts any such offer the Trustee shall
promptly notify the Rating Agencies.
(c) If an event of default under the Indenture occurs and is continuing,
and if directed by a majority of the outstanding Class A-1 Certificateholders
and Class A-2 Certificateholders, the Trustee shall vote the Underlying
Securities in favor of directing, or take such other action as may be
appropriate to direct, the Underlying Securities Trustee to declare the unpaid
principal amount of the Underlying Securities and any accrued and unpaid
interest thereon to be due and payable.
Section 16. Additional Depositor Representation. It is the express intent
of the parties hereto that the conveyance of the Underlying Securities by the
Depositor to the Trustee be, and be construed as, a sale of the Underlying
Securities by the Depositor and not a pledge of any Underlying Securities by the
Depositor to secure a debt or other obligation of the Depositor. In the event
that, notwithstanding the aforementioned intent of the parties, any Underlying
Securities are held to be property of the Depositor, then, it is the express
intent of the parties that such conveyance be deemed a pledge of such Underlying
Securities and all proceeds thereof by the Depositor to the Trustee to secure a
debt or other obligation of the Depositor, pursuant to Section 10.07 of the
Standard Terms. In connection with any such grant of a security interest in the
Underlying Securities and all proceeds thereof (including any such grant in
connection with any sale of additional Underlying Securities pursuant to Section
3(d)), the Depositor hereby represents and warrants to Trustee as follows:
(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 Uniform Commercial Code as in
effect in the applicable jurisdiction (the "UCC")) 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") established in the name of the Trustee in
accordance with Section 2.01 of the Standard Terms. U.S. Bank Trust
National Association, as securities intermediary (the "Securities
Intermediary") has established the Securities Account and has agreed
to treat the Underlying Securities as "financial assets" within the
meaning of the UCC.
25
(iii) Immediately prior to the transfer of the Underlying Securities to the
Trust, the Depositor owned and had good and marketable title to the
Underlying Securities free and clear of any lien, claim or encumbrance
of any Person.
(iv) The Depositor has received all consents and approvals required by the
terms of the Underlying Securities to the transfer to the Trustee all
of its interest and rights in the Underlying Securities as
contemplated by the Trust Agreement.
(v) The Depositor has taken all steps necessary to cause the Securities
Intermediary to identify on its records that the Trustee is the Person
owning the security entitlements credited to the Securities Account.
(vi) Other than the security interest granted to the Trust pursuant to this
Agreement, the Depositor has not assigned, pledged, sold, granted a
security interest in or otherwise conveyed any interest in the
Underlying Securities (or, if any such interest has been assigned,
pledged or otherwise encumbered, it has been released). The Depositor
has not authorized the filing of and is not aware of any financing
statements against the Depositor that includes a description of the
Underlying Securities other than any financing statement relating to
the security interest granted to the Trust hereunder. The Depositor is
not aware of any judgment or tax lien filings against the Depositor.
(vii) The Securities Account is not in the name of any Person other than
the Trustee. The Depositor has not consented to the compliance by the
Securities Intermediary, with entitlement orders of any Person other
than the Trustee.
26
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective authorized officers as of the
date first written above.
XXXXXX ABS CORPORATION,
as Depositor
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee on behalf of the
Corporate Backed Trust
Certificates Boeing
Note-Backed Series
2003-7 Trust
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
27
SCHEDULE I
BOEING NOTE-BACKED SERIES 2003-7
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 6 1/8% Notes due 2033.
Issuer: The Boeing Company
CUSIP Number: 000000XX0.
Principal Amount Deposited: $41,270,000
Original Issue Date: February 11, 2003.
Principal Amount of
Underlying Securities
Originally Issued: $400,000,000.
Maturity Date: February 15, 2033.
Interest Rate: 6 1/8% per annum.
Interest Payment Dates: February 15th and August 15th.
I-1
EXHIBIT A-1
FORM OF TRUST CERTIFICATE CLASS A-1
CLASS A-1 CERTIFICATE
---------------------
NUMBER 1 1,650,800 $25 PAR CERTIFICATES
CUSIP NO. 21988G 26 2
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL
OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
THE CERTIFICATEHOLDERS, BY THEIR ACCEPTANCE OF CERTIFICATES,
COVENANT AND AGREE TO TENDER ANY AND ALL CALLED CERTIFICATES TO THE TRUSTEE UPON
THE WARRANT HOLDER'S EXERCISE OF CALL WARRANTS AND PAYMENT OF THE CALL PRICE FOR
SUCH CERTIFICATES IN ACCORDANCE WITH THE PROVISIONS HEREOF AND OF THE WARRANT
AGENT AGREEMENT.
A-1-1
XXXXXX ABS CORPORATION
1,650,800 $25 PAR
CORPORATE BACKED TRUST CERTIFICATES,
BOEING NOTE-BACKED SERIES 2003-7
6.05% INTEREST RATE
evidencing a proportionate undivided beneficial ownership
interest in the Trust, as defined below, the property of which consists
principally of $41,270,000 aggregate principal amount of 6 1/8% Notes due 2033,
issued by The Boeing Company (the "Underlying Securities Issuer") and all
payments received thereon (the "Trust Property"), deposited in trust by Xxxxxx
ABS Corporation (the "Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an
aggregate of $41,270,000 principal amount nonassessable, fully-paid,
proportionate undivided beneficial ownership interest in the Corporate Backed
Trust Certificates, Boeing Note-Backed Series 2003-7 Trust, formed by the
Depositor.
A-1-2
The Trust was created pursuant to a Standard Terms for Trust
Agreements, dated as of January 16, 2001 (the "Standard Terms"), between the
Depositor and U.S. Bank Trust National Association, a national banking
association, not in its individual capacity but solely as Trustee (the
"Trustee"), as supplemented by the Series Supplement in respect of the Boeing
Note-Backed Series 2003-7, dated as of March 21, 2003 (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, Boeing Note-Backed
Series 2003-7, 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 March 21, 2003, together with any and all income,
proceeds and payments with respect thereto; provided, however, that any income
from the investment of Trust funds in certain permitted investments ("Eligible
Investments") does not constitute Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith,
distributions will be made on each Distribution Date, to the Person in whose
name this Certificate is registered on the applicable Record Date, in an amount
equal to such Certificateholder's proportionate undivided beneficial ownership
interest in the amount required to be distributed to the Holders of the
Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding such
Distribution Date (whether or not a Business Day). If a payment with respect to
the Underlying Securities is made to the Trustee after the date on which such
payment was due, then the Trustee will distribute any such amounts received on
the next occurring Business Day.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Trust, or join in any institution against the Trust of, any
bankruptcy proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates or
the Trust Agreement.
Distributions made on this Certificate will be made as provided
in the Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon, except that with respect to Certificates registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such
A-1-3
nominee shall be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the Corporate Trust Office or such other
location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee, by manual signature, this Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, BOEING NOTE-BACKED
SERIES 2003-7 TRUST
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
not in its individual capacity but
solely as Trustee,
By:
------------------------------------
Authorized Signatory
Dated: March 21, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Boeing
Note-Backed Series 2003-7, described in the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
---------------------------------
Authorized Signatory
A-1-5
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered Holder
hereof, by its acceptance hereof, agrees that it will look solely to the Trust
Property (to the extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the Holders of Class A-1 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate) shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not a notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $25.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, the City of New York, duly endorsed
by or accompanied by an assignment in the form below and by such other documents
as required by the Trust Agreement, and thereupon one or more new Certificates
of the same class in authorized denominations evidencing the same principal
amount will be issued to the designated transferee or transferees. The initial
Certificate Registrar appointed under the Trust Agreement is U.S. Bank Trust
National Association.
No service charge will be made for any registration of transfer
or exchange, but the Trustee may require exchange of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or
the Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that
the Trust created thereunder shall constitute a fixed investment trust for
federal income tax purposes under Treasury Regulation Section 301.7701-4, and
the Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee
created by the Trust Agreement with respect to the Certificates shall terminate
upon the earliest to occur of (i)
A-1-6
the payment in full at maturity or sale by the Trust after a payment default on
or an acceleration or other early payment of the Underlying Securities and the
distribution in full of all amounts due to the Class A-1 Certificateholders and
Class A-2 Certificateholders; (ii) the exercise of all outstanding Call Warrants
by the Warrant Holders; (iii) the Final Scheduled Distribution Date and (iv) the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and holding
of the Certificates would not be prohibited under ERISA or the Code.
A-1-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ______________________ Attorney to transfer said
Certificate on the books of the Certificate Register, with full power of
substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed by
an "eligible guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Certificate Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A-1-8
EXHIBIT A-2
FORM OF TRUST CERTIFICATE CLASS A-2
CLASS A-2 CERTIFICATE
---------------------
NUMBER 1 CUSIP NO. 21988G CL 8
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-2 CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER
SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT. THE
CLASS A-2 CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE
WITH THE TERMS OF THE SERIES SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2 CERTIFICATE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS CLASS A-2 CERTIFICATE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE NOTIONAL AMOUNT OF THIS CLASS A-2 CERTIFICATE IS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING NOTIONAL 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.
A-2-1
THE CERTIFICATEHOLDERS, BY THEIR ACCEPTANCE OF CERTIFICATES,
COVENANT AND AGREE TO TENDER ANY AND ALL CALLED CERTIFICATES TO THE TRUSTEE UPON
THE WARRANT HOLDER'S EXERCISE OF CALL WARRANTS AND PAYMENT OF THE CALL PRICE FOR
SUCH CERTIFICATES IN ACCORDANCE WITH THE PROVISIONS HEREOF AND OF THE WARRANT
AGENT AGREEMENT.
A-2-2
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
BOEING NOTE-BACKED SERIES 2003-7
$41,270,000 NOTIONAL AMOUNT
0.075% INTEREST RATE
FINAL SCHEDULED DISTRIBUTION DATE: February 15, 2033
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$41,270,000 aggregate principal amount of 6 1/8% Notes due 2033, issued by The
Boeing Company and all payments received thereon (the "Trust Property"),
deposited in trust by Xxxxxx ABS Corporation (the "Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an
aggregate amount of $41,270,000 notional amount nonassessable, fully-paid,
proportionate undivided beneficial ownership interest in the Corporate Backed
Trust Certificates, Boeing Note-Backed Series 2003-7 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, Boeing Note-Backed Series
2003-7, dated as of March 21, 2003 (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, Boeing Note-Backed
Series 2003-7, 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 March 21, 2003, together with any and all income,
proceeds and payments with respect thereto; provided, however, that any income
from the investment of Trust funds in certain permitted investments ("Eligible
Investments") does not constitute Trust Property.
A-2-3
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the obligation
created by the Trust Agreement shall have terminated in accordance therewith,
distributions of interest will be made on this Certificate on each Distribution
Date.
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.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST
CERTIFICATES, BOEING NOTE-BACKED
SERIES 2003-7 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By:
------------------------------------------
Authorized Signatory
Dated: March 21, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Backed Trust Certificates, Boeing
Note-Backed Series 2003-7, described in the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely
as Trustee,
By:
---------------------------------
Authorized Signatory
A-2-5
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered Holder
hereof, by its acceptance hereof, agrees that it will look solely to the Trust
Property (to the extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of Class A-2 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate) shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent 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
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)
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the payment in full at maturity or sale by the Trust after a payment default on
or an acceleration or other early payment of the Underlying Securities and the
distribution in full of all amounts due to the Class A-1 Certificateholders and
Class A-2 Certificateholders; (ii) the exercise of all outstanding Call Warrants
by the Warrant Holders; (iii) the Final Scheduled Distribution Date and (iv) the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and holding
of the Certificates would not be prohibited under ERISA or the Code.
A-2-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to transfer said Certificate on the books
of the Certificate Register, with full power of substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed by
an "eligible guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Certificate Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A-2-8
EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
BOEING NOTE-BACKED SERIES 2003-7 TRUST
WARRANT AGENT AGREEMENT, dated as of March 21, 2003 (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, Boeing Note-Backed Series 2003-7 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 2003-7, dated
as of March 21, 2003 (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.
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(ii) The Warrant Holder shall surrender the Call Warrants to the
Warrant Agent at its office specified in Section 6.3 hereof no later
than 10:00 a.m. (New York City time) on such Call Date.
(iii) The Warrant Holder shall have made payment to the Warrant
Agent, by wire transfer or other immediately available funds
acceptable to the Warrant Agent, in the amount of the Call Price, no
later than 10:00 a.m. (New York City time) on the Call Date.
(iv) The Warrant Holder shall exercise Call Warrants relating to
Class A-1 Certificates, Call Warrants relating to the Class A-2
Certificates which represent a like percentage of all Class A-1
Certificates and Class A-2 Certificates, respectively.
(v) The Warrant Holder may not exercise the Call Warrants at any
time when such Warrant Holder is insolvent, and such Warrant Holder
shall be required to certify that it is solvent at the time of
exercise, by completing the Form of Subscription attached to the Call
Warrants and delivering such completed Form of Subscription to the
Trustee on or prior to the Call Date and by delivering to the Trustee
a form reasonably satisfactory to the Trustee of the 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(d) of the
Series Supplement.
(b) Upon exercise of Call Warrants, any Warrant Holder other than the
Depositor or any Affiliate of the Depositor shall be entitled to delivery
by the Trustee of the Called Certificates. The "Called Certificates" shall
be, in the case of the Class A-1 Certificates, Class A-1 Certificates
having a Certificate Principal Amount equal to $25 per Call Warrant, and in
the case of the Class A-2 Certificates, Class A-2 Certificates having a
notional balance equal to $100,000 per Call Warrant. Unless otherwise
specified therein, such Call Notice shall be deemed to be notice of an
Optional Exchange pursuant to Section 7(b) of the Series Supplement. Any
Warrant Holder which is the Depositor or any Affiliate of the Depositor
shall receive the proceeds of the sale of the Called Underlying Securities
and shall not be entitled to receive the related Called Certificates or
Called Underlying Securities. "Called Underlying Securities" are Underlying
Securities which represent the same percentage of the Underlying Securities
as the Called Certificates represent of the Class A-1 Certificates and the
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).
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(d) Delivery of a Call Notice does not give rise to an obligation on
the part of the Warrant Holder to pay the Call Price. If, by 10:00 a.m.
(New York City time) on the Call Date, the Warrant Holder has not paid the
Call Price, except in connection with a Call Notice relating to a tender
offer for or redemption of Underlying Securities, then the Call Notice
shall automatically expire and none of the Warrant Holder, the Warrant
Agent or the Trustee shall have any obligation with respect to the Call
Notice. The expiration of a Call Notice shall in no way affect the Warrant
Xxxxxx's right to deliver a Call Notice at a later date. The Call Price for
a call in connection with a tender offer or redemption shall be deducted
from the proceeds of a tender offer or a redemption by the Trust pursuant
to Section 7(g)(iii) or Section 7(h)(iii), as applicable, of the Series
Supplement.
Section 1.2 Transfer of Certificates. As soon as practicable after each
surrender of Call Warrants in whole or in part on the Call Date and upon
satisfaction of all other requirements described in the Call Warrants and in
Section 1.1 hereof, the Warrant Agent shall instruct the Trustee as follows:
(a) if Call Warrants are being exercised by any Warrant Holder other
than the Depositor or any Affiliate of the Depositor, to cause the Called
Certificates to reflect the Warrant Holder's beneficial ownership of such
Certificates and if such Call Notice is also deemed to be a notice of
Optional Exchange, to cause a distribution of Underlying Securities to the
Warrant Holder in accordance with Section 7(a) of the Series Supplement,
provided, however, that if such a Call Notice and Optional Exchange is in
connection with a tender offer or a redemption, the Warrant Agent shall
instruct the Trustee to distribute to the exercising Warrant Holder the
excess of the tender offer or redemption proceeds over the Call Price
pursuant to Section 7(g)(iii) or Section 7(h)(iii), as applicable, of the
Series Supplement, or
(b) if the Call Warrants are being exercised by the Depositor or any
Affiliate of the Depositor, to cause the Called Underlying Securities to be
sold pursuant to Section 13 of the Series Supplement and to distribute the
proceeds of such sale to the Warrant Holder.
If such exercise is in part only, the Warrant Agent shall 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.
B-3
Section 1.4 No Rights as Holder of Certificates Conferred by Call Warrants.
Prior to the exercise thereof, Call Warrants shall not entitle the Warrant
Holder to any of the rights of a holder of the Certificates, including, without
limitation, the right to receive the payment of any amount on or in respect of
the Certificates or to enforce any of the covenants of the Trust Agreement.
Section 1.5 Pro Rata Reduction of Call Warrants if Partial Redemption of
Underlying Securities. If Underlying Securities are redeemed in part by the
Underlying Securities Issuer and the Warrant Holders do not exercise their Call
Rights in connection with such partial redemption, the number of Call Warrants
held by each Warrant Holder shall be reduced proportionately so that the
aggregate amount of Class A-1 Certificates callable by Call Warrants shall equal
the amount of outstanding Class A-1 Certificates after giving effect to such
partial redemption and the aggregate notional amount of Class A-2 Certificates
callable by Call Warrants shall equal the outstanding notional amount of Class
A-2 Certificates after giving effect to such partial redemption. The Warrant
Agent shall make such adjustments to its records as shall be necessary to
reflect such reductions and shall notify each Warrant Holder of such
adjustments.
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1 Restrictive Legends. Except as otherwise permitted by this
Article II, each Call Warrant (including each Call Warrant issued upon the
transfer of any Call Warrant) shall be issued with a legend in substantially the
following form:
"This Call Warrant has not been registered under the Securities Act of
1933, as amended, and may not be transferred, sold or otherwise disposed of
except while a registration under such Act is in effect or pursuant to an
exemption therefrom under such Act. The Call Warrant represented hereby may
be transferred only in compliance with the conditions specified in the Call
Warrants."
Section 2.2 Notice of Proposed Transfer. 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.
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Section 3.2 Transfer and Exchange of Call Warrants. (a) No Call Warrant may
be offered, resold, assigned or otherwise transferred (including by pledge or
hypothecation) at any time prior to (x) the date which is two years or such
shorter period of time as permitted by Rule 144(k) under the Securities Act
after the later of the original issue date of such Call Warrants and the last
date on which the Depositor or any "affiliate" (as defined in Rule 144 under the
Securities Act) of the Depositor was the owner of such Call Warrant (or any
predecessor thereto) or (y) such later date, if any, as may be required by a
change in applicable securities laws (the "Resale Restriction Termination Date")
unless such offer, resale, assignment or transfer is (i) to the Trust, (ii)
pursuant to an effective registration statement under the Securities Act, (iii)
to a qualified institutional buyer (a "QIB"), as such term is defined in Rule
144A promulgated under the Securities Act ("Rule 144A"), in accordance with Rule
144A or (iv) pursuant to another available exemption from registration provided
under the Securities Act, and, in each of cases (i) through (iv), in accordance
with any applicable securities laws of any state of the United States and other
jurisdictions. Prior to any offer, resale, assignment or transfer of any Call
Warrant in the manner described in clause (iii) above, the prospective
transferee and the prospective transferor shall be required to deliver to the
Trustee an executed copy of an Investment Letter with respect to the Call
Warrants to be transferred substantially in the form of Exhibit A hereto. Prior
to any offer, resale, assignment or transfer of any Call Warrants in the manner
described in clause (iv) above, the prospective transferee and the prospective
transferor shall be required to deliver to the Trustee documentation certifying
that the offer, resale, assignment or transfer complies with the provisions of
said clause (iv). In addition to the foregoing, each prospective transferee of
any Call Warrants in the manner contemplated by clause (iii) above shall
acknowledge, represent and agree as follows:
(1) The transferee (x) is a QIB, (y) is aware that the sale to it is being
made in reliance on Rule 144A and (z) is acquiring such Call Warrants
for its own account or for the account of a QIB.
(2) The transferee understands that the Call Warrants are being offered in
a transaction not involving any public offering in the United States
within the meaning of the Securities Act, and that the Call Warrants
have not been and will not be registered under the Securities Act.
(3) The transferee agrees that (A) if in the future it decides to offer,
resell, pledge or otherwise transfer the Call Warrants prior to the
Resale Restriction Termination Date, such Call Warrants shall only be
offered, resold, assigned or otherwise transferred (i) to the Trust,
(ii) pursuant to an effective registration statement under the
Securities Act, (iii) to a QIB, in accordance with Rule 144A or (iv)
pursuant to another available exemption from registration provided
under the Securities Act, and, in each of cases (i) through (iv), in
accordance with any applicable securities laws of any state of the
United States and other jurisdictions and (B) the transferee will, and
each subsequent holder is required to, notify any subsequent purchaser
of such Call Warrants from it of the resale restrictions referred to
in clause (A) above.
(b) Upon surrender of any Call Warrant for registration of transfer or
for exchange to the Warrant Agent, the Warrant Agent shall (subject to
compliance with
B-5
Article II) promptly execute and deliver, and cause the Trustee, on behalf
of the Trust, to execute and deliver, in exchange therefor, a new Call
Warrant of like tenor and evidencing a like number of Call Warrants, in the
name of such Warrant Holder or as such Warrant Holder (upon payment by such
Warrant Holder of any applicable transfer taxes or government charges) may
direct; provided that as a condition precedent for transferring the Call
Warrants, the prospective transferee shall deliver to the Trustee and the
Depositor an executed copy of the Investment Letter (set forth as Exhibit A
hereto) if the same is required pursuant to the provisions of clause (a)
above.
Section 3.3 Replacement of Call Warrants. Upon receipt of evidence
reasonably satisfactory to the Warrant Agent of the loss, theft, destruction or
mutilation of any Call Warrant and, in the case of any such loss, theft or
destruction of any Call Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Warrant Agent may determine, or, in the case of any
such mutilation, upon the surrender of such Call Warrant for cancellation to the
Warrant Agent, the Warrant Agent shall execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a new
Call Warrant of like tenor bearing a number not contemporaneously outstanding.
Section 3.4 Execution and Delivery of Call Warrants by Trustee. The
Trustee, on behalf of the Trust, hereby agrees (subject to compliance with
Article II) to execute and deliver such new Call Warrants issued in accordance
with Section 1.2 or this Article III as the Warrant Agent shall request in
accordance herewith.
Section 3.5 Additional Call Warrants. The Trustee shall execute and deliver
additional Call Warrants on behalf of the Trust with respect to any additional
Certificates issued by the Trust following the sale of additional Underlying
Securities to the Trust, in accordance with the provisions of Section 3(d) of
the Series Supplement.
ARTICLE IV
DEFINITIONS
As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any Business Day (i) on or after March 21, 2008,
(ii) after the Underlying Securities Issuer announces that it will redeem (in
whole or in part) or otherwise make an unscheduled payment on the Underlying
Securities, (iii) after the Trustee notifies the Certificateholders of any
proposed sale of the Underlying Securities pursuant to the provisions of the
Series Supplement or (iv) on which a tender offer for some or all of the
Underlying Securities is consummated.
"Call Notice": As defined in Section 1.1(a)(i) hereof.
"Call Price": Shall mean, for each related Call Date, (i) in the
case of the Class A-1 Certificates, 100% of the outstanding Certificate
Principal Balance of the Class A-1
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Certificates being purchased pursuant to the exercise of the Call Warrants, plus
any accrued and unpaid interest on such amount to but excluding the Call Date
and, (ii) in the case of the Class A-2 Certificates, the present value of all
amounts that would otherwise have been payable on the Class A-2 Certificates
being purchased pursuant to the exercise of the Call Warrants for the period
from the related Call Date to the Final Scheduled Distribution Date using a
discount rate of 7.25% per annum assuming, no delinquencies, deferrals,
redemptions or prepayments on the Underlying Securities shall occur after the
related Call Date.
"Call Warrant": As defined in the recitals.
"Called Certificates": As defined in Section 1.1(b) hereof.
"Called Underlying Securities": As defined in Section 1.1(b)
hereof.
"Closing Date": March 21, 2003.
"Depositor": As defined in the recitals.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"QIB": As defined in Section 3.2 hereof.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. and any successor thereto.
"Resale Restriction Termination Date": As defined in Section 3.2
hereof.
"Responsible Officer": As defined in the Trust Agreement.
"Rule 144A": As defined in Section 3.2.
"Securities Act": The Securities Act of 1933, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"Trust": As defined in the recitals.
"Trust Agreement": As defined in the recitals.
"Trustee": As defined in the recitals, or any successor thereto
under the Trust Agreement.
"Warrant Agent": As defined in the recitals, or any successor
thereto under this Warrant Agent Agreement.
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"Warrant Agent Agreement": As defined in the recitals.
"Warrant Holder": As defined in Section 1.1(a) hereof.
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.
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(f) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the Chief Executive Officer, Chief Financial
Officer, Chief Operating Officer, President, a Vice President, a Senior
Vice President, a Managing Director, its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary of the Depositor, and any
Responsible Officer of the Trustee, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(g) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Call
Warrants or other securities of the Trust or otherwise act as fully and
freely as though it were not Warrant Agent 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
B-9
Depositor may remove the Warrant Agent or any successor Warrant Agent upon
thirty (30) days notice in writing, mailed to the Warrant Agent or successor
Warrant Agent, as the case may be, and to the Warrant Holders by first-class
mail; provided further that no such removal shall become effective until a
successor Warrant Agent shall have been appointed hereunder. If the Warrant
Agent shall resign or be removed or shall otherwise become incapable of acting,
the Depositor shall promptly appoint a successor to the Warrant Agent, which may
be designated as an interim Warrant Agent. If an interim Warrant Agent is
designated, the Depositor shall then appoint a permanent successor to the
Warrant Agent, which may be the interim Warrant Agent. If the Depositor shall
fail to make such appointment of a permanent successor within a period of thirty
(30) days after such removal or within sixty (60) days after notification in
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by the Warrant Holder, then the Warrant Agent or registered
Warrant Holder may apply to any court of competent jurisdiction for the
appointment of such a successor. Any successor to the Warrant Agent appointed
hereunder must be rated in one of the four highest rating categories by the
Rating Agencies. Any entity which may be merged or consolidated with or which
shall otherwise succeed to substantially all of the trust or agency business of
the Warrant Agent shall be deemed to be the successor Warrant Agent without any
further action.
Section 5.4 Warrant Agent Transfer Fee. The Warrant Agent will assess a fee
of $50.00 upon the issue of any new Call Warrant, such fee to be assessed upon
the new Call Warrant Holder.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Remedies. The remedies at law of the Warrant Holder in the
event of any default or threatened default by the Warrant Agent in the
performance of or compliance with any of the terms of the Call Warrants are not
and will not be adequate and, to the full extent permitted by law, such terms
may be specifically enforced by a decree for the specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms thereof or otherwise.
Section 6.2 Limitation on Liabilities of Warrant Holder. Nothing contained
in this Warrant Agent Agreement shall be construed as imposing any obligation on
the Warrant Holder to purchase any of the Certificates except in accordance with
the terms thereof.
Section 6.3 Notices. All notices and other communications under this
Warrant Agent Agreement shall be in writing and shall be delivered, or mailed by
registered or certified mail, return receipt requested, by a nationally
recognized overnight courier, postage prepaid, addressed (a) if to any Warrant
Holder, at the registered address of such Warrant Holder as set forth in the
register kept by the Warrant Agent or (b) if to the Warrant Agent, to 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust or to
such other address notice of which the Warrant Agent shall have given to the
Warrant Holder and the Trustee or (c) if to the Trust or the Trustee, to the
Corporate Trust Office (as set forth in the Trust Agreement); provided that the
exercise of any Call Warrants shall be effective in the manner provided in
Article I. The Warrant Agent shall forward to the Warrant Holder any notices
received by it
B-10
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 cause the Trust to be taxed as an association
or publicly traded partnership taxable as a Corporation under the Code, for any
of the following purposes: (i) to cure any ambiguity or to correct or supplement
any provision herein which may be defective or inconsistent with any other
provision herein or to provide for any other terms or modify any other
provisions with respect to matters or questions arising under the Call Warrant
which shall not adversely affect in any material respect the interests of the
Warrant Holder or any holder of a Certificate; provided, however that no
amendment altering the timing or amount of any payment of the Call Price shall
be effected without the consent of each Warrant Holder; or (ii) to evidence and
provide for the acceptance of appointment hereunder of a Warrant Agent other
than U.S. Bank Trust National Association.
(b) Without limiting the generality of the foregoing, the Call
Warrants may also be modified or amended from time to time by the
Depositor, the Trustee and the Warrant Agent with the consent of Warrant
Holders of 66-2/3% of each of the Call Warrants related to the Class A-1
Certificates 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 been satisfied, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Call
Warrants or of modifying in any manner the rights of the Warrant Holders;
provided, however, that no such amendment shall (i) adversely affect in any
material respect the interests of holders of Certificates without the
consent of the holders of Certificates evidencing not less than the
Required Percentage--Amendment of the aggregate Voting Rights of such
affected Certificates (as such terms are defined in the Trust Agreement)
and without written confirmation from the Rating Agencies that such
amendment will not result in a downgrading or withdrawal of its rating of
the Certificates; (ii) alter the terms on which Call Warrants are
exercisable or the amounts payable upon exercise of a Warrant without the
consent of the holders of Certificates evidencing not less than 100% of the
aggregate Voting Rights of such affected Certificates and 100% of the
affected Warrant Holders or (iii) reduce the percentage of aggregate Voting
Rights required by (i) or (ii) without the consent of the holders of all
such affected Certificates. Notwithstanding any other provision of this
Warrant Agent Agreement, this Section 6.4(b) shall not be amended without
the consent of 100% of the affected Warrant Holders.
(c) Promptly after the execution of any such amendment or
modification, the Warrant Agent shall furnish a copy of such amendment or
modification to each Warrant Holder, to the Trustee and to the Rating
Agencies. It shall not be necessary for the consent of Warrant Holders or
holders of Certificates under this Section to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing
B-11
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 Agreement may be brought in any court of competent jurisdiction in
the County of New York, State of New York or of the United States of America for
the Southern District of New York and, by execution and delivery of the Call
Warrants, the Trustee on behalf of the Trust and the Warrant Agent (a) accept,
generally and unconditionally, the nonexclusive jurisdiction of such courts and
any related appellate court, and irrevocably agree that the Trust, the Trustee
and the Warrant Agent shall be bound by any judgment rendered thereby in
connection with this Warrant Agent Agreement or the Call Warrants, subject to
any rights of appeal, and (b) irrevocably waive any objection that the Trust,
the Trustee or the Warrant Agent may now or hereafter have as to the venue of
any such suit, action or proceeding brought in such a court or that such court
is an inconvenient forum.
Section 6.9 Nonpetition Covenant; No Recourse. Each of (i) the Warrant
Holder by its acceptance thereof, and (ii) the Warrant Agent agrees, that it
shall not (and, in the case of the Warrant Holder, that it shall not direct the
Warrant Agent to), until the date which is one year and one day after the
payment in full of the Certificates and all other securities issued by the
Trust, the Depositor or entities formed, established or settled by the
Depositor, acquiesce, petition or otherwise invoke or cause the Trust, the
Depositor, or any such other entity to invoke the process of the United States
of America, any State or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government for the purpose of commencing or
sustaining a case by or against the Trust, the Depositor or any such other
entity under a federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust, the Depositor or any such other entity or
all or any part of the property or assets of Trust, the Depositor or any such
other entity or ordering the winding up or liquidation of the affairs of the
Trust, the Depositor or any such other entity.
B-12
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
XXXXXX ABS CORPORATION,
as Depositor
By:
------------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee and Authenticating Agent
By:
------------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:
Name:
Title:
B-13
EXHIBIT A TO WARRANT AGENT AGREEMENT
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated: ___________ __, _____
U.S. Bank Trust National Association,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation,
as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Corporate Backed Trust Certificates, Boeing Note-Backed Series 2003-7
---------------------------------------------------------------------
Ladies and Gentlemen:
In connection with its proposed purchase of Call Warrants (the
"Call Warrants") which represent the right to call $______________ aggregate
certificate principal balance of Corporate Backed Trust Certificates, Boeing
Note-Backed Series 2003-7 Class A-1 Certificates and $_______________ aggregate
notional amount of Corporate Backed Trust Certificates, Boeing Note-Backed
Series 2003-7 Class A-2 Certificates, the undersigned purchaser (the
"Purchaser") confirms that:
1. The Purchaser understands that substantial risks are involved in an
investment in the Call Warrants. The Purchaser represents that in making its
investment decision to acquire the Call Warrants, the Purchaser has not relied
on representations, warranties, opinions, projections, financial or other
information or analysis, if any, supplied to it by any person, including you,
Xxxxxx ABS Corporation, as depositor (the "Depositor"), or U.S. Bank Trust
National Association, as trustee (the "Trustee"), or any of your or their
affiliates, except as expressly contained in written information, if any. The
Purchaser has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of an investment in the Call
Warrants, and the Purchaser is able to bear the substantial economic risks of
such an investment. The Purchaser has relied upon its own tax, legal and
financial advisors in connection with its decision to purchase the Call
Warrants.
2. The Purchaser (A) is a "Qualified Institutional Buyer" (as defined in
Rule 144A under the Securities Act of 1933, as amended (the "1933 Act")) and (B)
is acquiring the Call Warrants for its own account or for the account of an
investor of the type described in clause (A) above as to each of which the
Purchaser exercises sole investment discretion. The Purchaser is purchasing the
Call Warrants for investment purposes and not with a view to, or for, the offer
or sale in connection with, a public distribution or in any other manner that
would violate the 1933 Act or the securities or blue sky laws of any state.
B-A-1
3. The Purchaser understands that the Call Warrants have not been and will
not be registered under the 1933 Act or under the securities or blue sky laws of
any state, and that (i) if it decides to resell, pledge or otherwise transfer
any Security, such resale, pledge or other transfer must comply with the
provisions of the Warrant Agent Agreement relating to the Call Warrants
(including, without limitation, the provisions of Section 3.2 thereof) and (ii)
it will, and each subsequent holder will be required to, notify any purchaser of
any Security from it of the resale restrictions referred to in clause (i) above.
4. The Purchaser understands that each of the Call Warrants will bear a
legend substantially to the following effect, unless otherwise agreed by the
Depositor and the Trustee:
"THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR
PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT. THE CALL WARRANT
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED HEREIN OR IN THE SERIES SUPPLEMENT."
5. The Purchaser understands that no subsequent transfer of the Call
Warrants is permitted unless (A) such transfer is of a Call Warrant with the
applicable minimum denomination and (B) the Purchaser causes the proposed
transferee to provide to the Depositor and the Trustee such documentation as may
be required pursuant to Section 3.2 of the Warrant Agent Agreement, including,
if required, a letter substantially in the form hereof, or such other written
statement as the Depositor shall reasonably prescribe.
6. The Purchaser is a person or entity (a "Person") who is either
A. (1) a citizen or resident of the United States, (2) a
corporation, partnership or other entity organized in or under the
laws of the United States or any political subdivision thereof, or (3)
an estate the income of which is includible in gross income for
federal income tax purposes regardless of source, or (4) a trust if a
court within the United States is able to exercise primary supervision
of the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the
trust, or
B. a Person not described in (A), whose ownership of such Call
Warrant is effectively connected with such Person's conduct of a trade
or business within the United States within the meaning of the
Internal Revenue Code of 1986, as amended (the "Code"), and its
ownership of any interest in such Call Warrant will not result in any
withholding obligation with respect to any payments with respect to
the Call Warrants by any Person (other than withholding, if any, under
Section 1446 of the Code), or
B-A-2
C. a Person not described in (A) or (B) above, who is not a
Person: (1) that owns, directly or indirectly, 10% or more of the
total combined voting power of all classes of stock in the Underlying
Securities Issuer (as defined in the Prospectus Supplement) entitled
to vote, (2) that is a controlled foreign corporation related to the
Underlying Securities Issuer within the meaning of Section 864(d)(4)
of the Code, or (3) that is a bank extending credit pursuant to a loan
agreement entered into in the ordinary course of its trade or
business.
7. The Purchaser agrees that (I) if it is a Person described in clause (A)
above, it will furnish to the Depositor and the Trustee a properly executed IRS
Form W-9, and (II) if it is a Person described in clause (B) above, it will
furnish to the Depositor and the Trustee a properly executed IRS Form W-8ECI,
and (III) if it is a Person described in clause (C) above, it will furnish to
the Depositor and the Trustee a properly executed IRS Form W-8BEN (or, if the
Purchaser is treated as a partnership for federal income tax purposes, a
properly executed IRS Form W-8IMY with appropriate certification for all
partners or members attached). The Purchaser also agrees that it will provide a
new IRS form upon the expiration or obsolescence of any previously delivered
form, and that it will provide such other certifications, representations or
Opinions of Counsel as may be requested by the Depositor and the Trustee.
8. The Purchaser agrees that if at some time in the future it wishes to
transfer or exchange any of the Call Warrants, it will not transfer or exchange
any of the Call Warrants unless such transfer or exchange is in accordance with
the terms of the Warrant Agent Agreement, Series Supplement and other documents
applicable to the Call Warrant. The Purchaser understands that any purported
transfer of the Call Warrants (or any interest therein) in contravention of any
of the restrictions and conditions in the agreements, as applicable, shall be
void, and the purported transferee in such transfer shall not be recognized by
any Person as a holder of such Securities, for any purpose.
B-A-3
You and the Trustee are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Purchaser]
By: ____________________________________
Name: _______________________________
Title: ________________________________
B-A-4
EXHIBIT C
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER AND ACCREDITED INVESTOR
Dated:
U.S. Bank Trust National Association,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.,
as Initial Purchaser
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation,
as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $___________ aggregate notional
amount of Class A-2 Certificates (the "Class A-2 Certificates") representing an
interest in the Corporate Backed Trust Certificates, Boeing Note-Backed Series
2003-7 Trust (the "Trust"), the undersigned, by executing this letter (the
"Purchaser") confirms that:
1. Reference is made to the private placement memorandum, dated March 12,
2003, including the schedules, exhibits and annexes, if any, thereto, as
supplemented or amended to the date hereof (the "Memorandum"), relating to the
Class A-2 Certificates. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Memorandum. The
Purchaser has received a copy of the Memorandum 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 Initial Purchaser, concerning the terms and
conditions of the offering described in the Memorandum. The Purchaser has
received and understands the information discussed above and understands that
substantial risks are involved in an investment in the Class A-2 Certificates.
The Purchaser represents that, in making its investment decision to acquire the
Class A-2 Certificates, the Purchaser has not relied on representations,
warranties, opinions, projections, financial or other information or analysis,
if any, supplied to it by any person or entity, including the Initial Purchaser,
the Depositor or the Trustee or any of their affiliates, except as expressly
contained in the Memorandum and in the other written information, if any,
discussed above. The Purchaser acknowledges that it has read and agreed to the
matters stated
C-1
on pages 2 through 4 of such Memorandum and the information under the heading
"Transfer Restrictions." The Purchaser is purchasing the Class A-2 Certificates
for investment purposes and not with a view to, or for, the offer or sale in
connection with a public distribution or in any other manner that would violate
the 1933 Act or the securities or blue sky laws of any state of the United
States. The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
purchasing any of the Class A-2 Certificates. The Purchaser is aware that it may
be required to bear the substantial economic risk of an investment in the Class
A-2 Certificates for an indefinite period of time and such Purchaser is able to
bear such risk for an indefinite period. The Purchaser has relied upon its own
tax, legal and financial advisors in connection with its decision to purchase
the Class A-2 Certificates.
2. The Purchaser is not an not an "affiliate" (as defined in Rule 144 under
the Securities Act) of the Depositor and is either:
(i) (A) a "Qualified Institutional Buyer" (a "QIB") (as defined in
Rule 144A under the Securities Act of 1933, as amended (the "1933 Act" and
"Rule 144A")) and has delivered to you the certification contained herein
as to the fact that it is a QIB and (B) acquiring the Class A-2
Certificates for its own account, or for the account of an Accredited
Investor (as defined in Rule 501(a) under the 1933 Act), or for the account
of a QIB as to each of which the Purchaser exercises sole investment
discretion. The Purchaser is aware that the Class A-2 Certificates are
being sold to it in reliance on the exemption from the provisions of
Section 5 of the 1933 Act provided by Rule 144A; or
(ii) an Accredited Investor and, if the Class A-2 Certificates are to
be purchased for one or more accounts ("investor accounts") for which it is
acting as fiduciary or agent, each such investor account is an Accredited
Investor on a like basis or a QIB; in the normal course of its business,
such Purchaser invests in or purchases securities similar to the Class A-2
Certificates.
3. The Purchaser acknowledges that neither the Depositor nor the Initial
Purchaser, or any person representing the Depositor or the Initial Purchaser,
has made any representation to such purchaser with respect to the Trust, the
Underlying Securities or the offering or sale of any Class A-2 Certificates,
other than the information contained in the Memorandum, which has been delivered
to the Purchaser and upon which the Purchaser is relying in making an investment
decision with respect to the Class A-2 Certificates. Accordingly, the Purchaser
acknowledges that no representation or warranty is made by the Depositor or the
Initial Purchaser as to the accuracy or completeness of such materials.
4. The Purchaser understands that the Class A-2 Certificates are being
offered in a transaction not involving any public offering in the United States
within the meaning of the 1933 Act, that the Class A-2 Certificates have not
been and will not be registered under the 1933 Act or under the securities or
blue sky laws of any state, and that (i) if in the future it decides to offer,
resell, pledge or otherwise transfer the Class A-2 Certificates, such Class A-2
Certificates shall only be offered, resold, assigned or otherwise transferred
(A) to the Trust, (B) pursuant to an effective registration statement under the
Securities Act, (C) to a QIB, in accordance with Rule 144A, (D) to any person or
entity (including an Accredited Investor within the meaning of Rule 501(a) under
the Securities Act) pursuant to another available exemption from registration
C-2
provided under the Securities Act, and, in each of cases (A) through (D), in
accordance with any applicable securities laws of any state of the United States
and other jurisdictions and (ii) the purchaser will, and each subsequent holder
is required to, notify any subsequent purchaser of such Class A-2 Certificates
from it of the resale restrictions referred to in clause (i) above. Upon the
transfer of Class A-2 Certificates held in the form of global certificates to an
Accredited Investor, the transferor's interest in such global certificates shall
be exchanged for a Class A-2 Certificate in definitive form. Thereafter, upon
transfer of a definitive Class A-2 Certificate to a QIB, such Class A-2
Certificate may be exchanged for a beneficial interest in a global certificate.
5. The Purchaser understands that each Class A-2 Certificate will, unless
otherwise agreed to by the Depositor and the Trustee, bear a legend
substantially to the following effect:
"THIS CLASS A-2 CERTIFICATE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN EXEMPTION
THEREFROM UNDER SUCH ACT. THE CLASS A-2 CERTIFICATE REPRESENTED HEREBY
MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE SERIES
SUPPLEMENT.
EACH PURCHASER OF THIS CLASS A-2 CERTIFICATE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS CLASS A-2 CERTIFICATE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER."
6. The Purchaser understands that no subsequent transfer of the Class A-2
Certificates is permitted unless (A) such transfer is of a Class A-2 Certificate
with a denomination of at least $100,000 and (B) it causes its proposed
transferee to provide to the Trustee and the Initial Purchaser a letter
substantially in the form of Exhibit C to the Series Supplement and otherwise
satisfactory to the Trustee and Initial Purchaser, as applicable, or such other
written statement as the Depositor shall prescribe.
7. The Purchaser agrees that, if at some time in the future it wishes to
transfer or exchange any of the Class A-2 Certificates, it will not transfer or
exchange any of the Class A-2 Certificates unless such transfer or exchange is
in accordance with Section 5.04 of the Trust Agreement. The Purchaser
understands that any purported transfer of the Class A-2 Certificates (or any
interest therein) in contravention of any of the restrictions and conditions in
the Trust Agreement, as applicable, shall be void, and the purported transferee
in such transfer shall not be recognized by the Trust or any other Person as a
Certificateholder, as the case may be, for any purpose.
C-3
8. The purchaser (i) acknowledges that the Depositor, the Initial
Purchaser, the Trustee and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements and agrees that the
Depositor, the Initial Purchaser, the Trustee are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby, and (ii) agrees that, if any of the acknowledgments,
representations, warranties and agreements made or deemed to have been made by
such purchaser's purchase of the Class A-2 Certificates are no longer accurate,
such purchaser shall promptly notify the Depositor and the Initial Purchaser. If
the purchaser is acquiring any Class A-2 Certificates as a fiduciary or agent
for one or more investor accounts, it represents that it has sole investment
discretion with respect to each such account and it has full power to make the
foregoing acknowledgments, representations and agreements on behalf of each such
account and that each such investor account is eligible to purchase the Class
A-2 Certificates.
Very truly yours,
By:
----------------------------------------
Name:
Title:
C-4
