EXHIBIT 7
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED SERIES 2003-5 TRUST
between
XXXXXX ABS CORPORATION,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
CORPORATE BACKED TRUST CERTIFICATES
Dated as of March 5, 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..............................................10
Section 5. Distributions...................................................11
Section 6. Trustee's Fees..................................................14
Section 7. Optional Exchange; Optional Call................................15
Section 8. Notices of Events of Default....................................19
Section 9. Miscellaneous...................................................19
Section 10. Governing Law..................................................22
Section 11. Counterparts...................................................22
Section 12. Termination of the Trust.......................................22
Section 13. Sale of Underlying Securities; Optional Exchange...............23
Section 14. Amendments.....................................................23
Section 15. Voting of Underlying Securities, Modification of Indenture.....23
Section 16. Additional Depositor Representation............................24
SCHEDULE I SEARS XXXXXXX ACCEPTANCE NOTE-BACKED SERIES 2003-5 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 CLASS A-2 CERTIFICATE INVESTMENT LETTER
i
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED SERIES 2003-5
SERIES SUPPLEMENT, Sears Xxxxxxx Acceptance Note-Backed Series
2003-5 Trust, dated as of March 5, 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 Sears Xxxxxxx Acceptance Note-Backed Series
2003-5 Certificates and the transactions described herein.
Section 2. Definitions.
(a) Except as otherwise specified herein or as the context may otherwise
require, the following terms shall have the respective meanings set forth
below for all purposes under this Series Supplement. (Section 2(b) below sets
forth terms listed in the Standard Terms which are
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not applicable to this Series.) Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Standard Terms.
"Accredited Investor" shall mean a Person that qualifies as an
"accredited investor" within the meaning of Rule 501(a) under the Securities
Act.
"Available Funds" shall have the meaning specified in the Standard
Terms.
"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 Call Warrant holder
designates as a Call Date occurring (i) on or after March 5, 2008, (ii) after
the Underlying Securities Issuer announces that it will redeem (including as a
result of an optional redemption), 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
being purchased pursuant to the exercise of the Call Warrants, the present
value of all amounts that would otherwise have been payable on the Class A-2
Certificates being purchased pursuant to the exercise of the Call Warrants for
the period from the related Call Date to the Final Scheduled Distribution Date
using a discount rate of 8.75% 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.
"Certificates" shall have the meaning set forth in Section 3 hereof.
"Class A-1 Allocation" shall mean the sum of the present values
(discounted at the rate of 7.625% 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
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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 7.625% per annum) of any unpaid principal amounts due or to become
due on the Class A-2 Certificates (assuming that the Class A-2 Certificates
were paid when due and were not redeemed 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 5, 2003.
"Code" means the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collection Period" shall mean, (i) with respect to each June
Distribution Date, the period beginning on the day after the December
Distribution Date of the prior year and ending on such June Distribution Date,
inclusive and, (ii) with respect to each December Distribution Date, the
period beginning on the day after the June Distribution Date of such year and
ending on such December 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 June 1st and December 1st of each
year (or if such date is not a Business Day, the next succeeding Business
Day), commencing on June 1, 2003, and ending on the earlier of the Final
Scheduled Distribution Date and any date on which all Underlying Securities
are redeemed pursuant to the Indenture or prepaid or liquidated in whole for
any reason other than at their maturity.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
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"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 June 1, 2032, or, if
such day is not a Business Day, the next succeeding Business Day.
"Indenture" shall mean the Indenture dated as of May 15, 1995,
between the Underlying Securities Issuer and Underlying Securities Trustee,
pursuant to which the Underlying Securities were issued.
"Interest Accrual Period" shall mean for any Distribution Date, the
period from and including the preceding Distribution Date (or in the case of
the first Interest Accrual Period, from and including the Closing Date) to but
excluding the current Distribution Date.
"Liquidation Price" shall mean the price at which the Trustee sells
the Underlying Securities.
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Optional Call" shall mean the call of the Certificates by the
Warrant Holder, in whole or in part, resulting from the exercise of Call
Warrants by the Warrant Holder, pursuant to Section 7(d) hereof.
"Optional Exchange" shall mean the exchange of the Certificates by
the Trust for the Underlying Securities pursuant to Section 7(a) and 7(b)
hereof.
"Optional Exchange Date" shall mean any date on which Underlying
Securities subject to Optional Exchange are distributed to a
Certificateholder.
"Ordinary Expenses" shall mean the Trustee's ordinary expenses and
overhead in connection with its services as Trustee, including the items
referred to in the definition of Ordinary Expenses in the Standard Terms.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated
February 24, 2003, relating to the Certificates.
"QIB" shall have the meaning set forth in Section 3(e) hereof.
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"Rating Agency" shall mean Moody's and S&P.
"Record Date" shall mean, with respect to each Distribution Date,
the day immediately preceding the related Distribution Date.
"Required Percentage-Amendment" shall be 66-2/3% of the aggregate
Voting Rights, unless the subject amendment requires the vote of holders of
only one class of Certificates pursuant to the Standard Terms, in which case
66-2/3% of the Certificate Principal Balance 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.
"Securities Act" shall mean the United States Securities Act of
1933, as amended.
"Series" shall mean Sears Xxxxxxx Acceptance Note-Backed Series
2003-5.
"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.
"Underlying Securities" shall mean $29,938,000 aggregate principal
amount of 7% Notes due June 1, 2032, 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 Sears Xxxxxxx Acceptance
Corp.
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"Underlying Securities Trustee" shall mean JPMorgan Chase Bank.
"Underwriters" shall mean Xxxxxx Brothers Inc., Prudential
Securities Incorporated and J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
"Voting Rights" shall, in the entirety, be allocated among all Class
A-1 Certificateholders and Class A-2 Certificateholders in proportion to the
then outstanding Certificate Principal Balances 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"
"Eligible Expense"
"Eligible Investment"
"Exchange Rate Agent"
"Fixed Pass-Through Rate"
"Floating Pass-Through Rate"
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"Guaranteed Investment Contract"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Minimum Wire Denomination"
"Notional Amount"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
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Section 3. Designation of Trust and Certificates. The Trust created
hereby shall be known as the "Corporate Backed Trust Certificates, Sears
Xxxxxxx Acceptance Note-Backed Series 2003-5 Trust." The Certificates
evidencing certain undivided ownership interests therein shall be known as
"Corporate Backed Trust Certificates, Sears Xxxxxxx Acceptance Note-Backed
Series 2003-5." The Certificates shall consist of the Class A-1 Certificates
and the Class A-2 Certificates (together, the "Certificates"). The Trust is
also issuing call warrants with respect to the Certificates ("Call Warrants").
(a) The Certificates shall initially be held through the Depository in
book-entry form and shall be substantially in the forms attached hereto as
Exhibits A-1 and A-2. The Class A-1 Certificates shall be issued in
denominations of $25. The Class A-2 Certificates shall be issued in minimum
denominations of $100,000 aggregate principal amount and integral multiples of
$1 in excess thereof; provided, however, that on any Call Date on which a
Warrant Holder shall concurrently exchange Called Certificates for a
distribution of Underlying Securities in accordance with the provisions of
Section 7 hereof, Called Certificates may be issued in other denominations.
Except as provided in the Standard Terms and in paragraph (d) in this Section,
the Trust shall not issue additional Certificates or additional Call Warrants
or incur any indebtedness.
(b) The Class A-1 Certificates have an initial aggregate certificate
principal balance (the "Certificate Principal Balance") of $27,484,000 and the
Class A-2 Certificates are principal-only Certificates, and have an initial
aggregate Certificate Principal Balance of $2,454,000.
(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 7.625% per
annum on the outstanding Certificate Principal Balance of the Class A-1
Certificates. The holders of the Class A-2 Certificates will not be entitled
to receive interest. On the Distribution Date occurring in June 2003, the
Trustee shall cause the Trust to pay to Xxxxxx ABS an amount equal to interest
accrued and paid on the Underlying Securities from December 1, 2003, to but
not including the Closing Date; provided, however, that in the event an
Optional Exchange shall occur prior to the Distribution Date in June 2003, a
pro rata portion of such amount shall be paid to the Depositor on the Optional
Exchange Date, in accordance with the provisions of Section 7(b)(ix) hereof.
If the Depositor is not paid any such amount on such date, it shall have a
claim for such amount. If Available Funds are insufficient to pay such amount,
the Trustee will 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 three 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
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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 and Class A-2 Certificates in
the same proportion as the original Class A-1 Certificates and Class A-2
Certificates, with an aggregate Certificate Principal Balance equal to the
principal amount of such additional Underlying Securities, and the Call
Warrants related thereto as described herein. 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, 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. 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 principal 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
principal 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.
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(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 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.
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Section 5. Distributions.
(a) Except as otherwise provided in Section 3(c), 5(b), 5(d), 5(g) and
5(h) 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
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, as
interest at the rate of 7.625% per annum on the outstanding
Certificate Principal Balance of the Class A-1 Certificates.
The Class A-2 Certificates are not entitled to distributions of
interest.
(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 and
the Class A-2 Certificates, the remaining available principal
portion of Available Funds (in an aggregate amount not to exceed the
outstanding Certificate Principal Balance of the Class A-1
Certificates and Class A-2 Certificates) pro rata in proportion to
their outstanding Certificate Principal Balances.
(iii) any Available Funds remaining in the Certificate Account after
the payments set forth in clauses 5(a)(i) and 5(a)(ii) above shall be
paid to the Trustee as reasonable compensation for services rendered to
the Depositor, up to $1,000.
(iv) the Trustee will pay any Available Funds remaining in the
Certificate Account after the distributions in clauses 5(a)(i) through
5(a)(iii) above to the holders of the Class A-1 Certificates and Class
A-2 Certificates pro rata in proportion to their original Certificate
Principal Balances.
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) 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 the cessation of the
Underlying Securities Issuer to file periodic reports as
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required by the Exchange Act or at the Final Scheduled Distribution Date, the
Trustee shall apply Available Funds in the manner described in Section 5(f) in
the following order of priority:
(i) first, to the Trustee, as reimbursement for any Extraordinary
Trust Expenses incurred by the Trustee in accordance with Section 6(b)
below and approved by 100% of the Certificateholders;
(ii) second, to the holders of the Class A-1 Certificates, an amount
equal to any accrued and unpaid interest thereon;
(iii) third, to the holders of the Class A-1 Certificates and Class
A-2 Certificates, pro rata in proportion to their outstanding Certificate
Principal Balances;
(iv) fourth, to the Trustee, as reasonable compensation for services
rendered to the Depositor, any remainder up to $1,000; and
(v) fifth, to the holders of the Class A-1 Certificates and Class
A-2 Certificates, any amount remaining after the distributions in clauses
5(b)(i) through 5(b)(iv) above, pro rata in proportion to their original
Certificate Principal Balances.
(c) Unless otherwise instructed by holders of Certificates representing a
majority of the Voting Rights, thirty (30) days after giving notice pursuant
to Section 8 hereof, the Trustee shall sell the Underlying Securities pursuant
to Section 13 hereof and deposit the Liquidation Proceeds, if any, into the
Certificate Account for distribution not later than two (2) Business Days
after the receipt of immediately available funds in accordance with Section
5(b) hereof; 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.
(d) 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 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, pro rata by outstanding Certificate Principal Balance
(after deducting the costs incurred in connection therewith) in accordance
with Section 5(b) hereof. Property other than cash will be liquidated by the
Trustee, and the proceeds thereof distributed in cash, only to the extent
necessary to avoid distribution of fractional securities to
Certificateholders. In-kind distribution of such property to
Certificateholders, 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 Certificates on a dollar-for-dollar basis.
(e) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make 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
12
date referred to in Section 5(f) hereof) on which sufficient funds are
available to pay such shortfall.
(f) If a payment with respect to the Underlying Securities is made to the
Trustee (i) after the payment date of the Underlying Securities on which such
payment was due or (ii) after the Underlying Securities are redeemed, prepaid
or liquidated in whole or in part for any reason other than the cessation of
the Underlying Securities Issuer to file periodic reports as required by the
Exchange Act or at their maturity, then the Trustee will distribute any such
amounts received on the next occurring Business Day (a "Special Distribution
Date") as if the funds had constituted Available Funds on the Distribution
Date immediately preceding such Special Distribution Date; provided, however,
that the Record Date for such Special Distribution Date shall be the Business
Day prior to the day on which the related payment was received from the
Underlying Securities Trustee.
(g) Notwithstanding Section 3.12 of the Standard Terms, if the Underlying
Securities Issuer ceases to file periodic reports as required under the
Exchange Act, the Depositor shall within a reasonable time instruct the
Trustee to (i) notify the Warrant Agent that the Underlying Securities are
proposed to be sold and that any Call Warrants and related Optional Exchange
rights must be exercised no later than the date specified in the notice (which
shall be not less than ten Business Days after the date of such notice) and
(ii) to the extent that the Warrant Holders fail to exercise their Call
Warrants and related Optional Exchange rights on or prior to such date, to
sell the Underlying Securities and distribute the proceeds of such sale to the
Certificateholders in accordance with the following order of priority: first,
to the Trustee, as reimbursement for any Extraordinary Trust Expenses incurred
by the Trustee in accordance with Section 6(b) below and approved by 100% of
the Certificateholders; and second, any remainder to the holders of the Class
A-1 Certificates and the Class A-2 Certificates pro rata in proportion to the
ratio of the Class A-1 Allocation to the Class A-2 Allocation, as determined
by the Calculation Agent; provided, however, the Depositor shall not instruct
the Trustee to distribute or sell the Underlying Securities (or provide a
notice of such instruction to the Warrant Agent) pursuant to this clause
unless the Underlying Securities Issuer has either (x) stated in writing that
it intends permanently to cease filing reports required under the Exchange Act
or (y) failed to file any required reports for one full calendar year.
(h) (i) If the Trustee receives notice of a tender offer for some or all
of the Underlying Securities, the Trustee shall, within one Business Day,
notify the Warrant Agent and forward to the Warrant Agent copies of all
materials received by the Trustee in connection therewith. If the Trustee
receives a Call Notice from any Warrant Holder no later than five Business
Days prior to the expiration of the tender offer acceptance period that such
Warrant Holder desires to exercise all or a portion of its Call Warrants in
connection with the consummation of any such tender offer, then the Trustee
shall tender, in compliance with the tender offer requirements, an amount of
Underlying Securities equal to the amount of Underlying Securities that would
be distributable to the Warrant Holder with respect to an Optional Exchange of
the Called Certificates called by such Warrant Holder; provided that any
Optional Call or Optional Exchange undertaken in connection with any such
tender offer shall be subject to the provisions of Section 7 hereof.
13
(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 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 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 Class A-1 and
Class A-2 Certificates that could be exchanged in an Optional Exchange
for the Underlying Securities accepted for payment and paid for (without
regard to any restrictions on the amount to be exchanged, so long as such
restrictions would have been satisfied had all tendered Underlying
Securities been accepted for payment and paid for); (B) each Warrant
Holder's exercise shall be reduced by its share (proportionate to the
amount specified in its exercise notice) of the amount of Underlying
Securities not accepted for payment and paid for; (C) the Call Price
shall be determined after giving effect to the reduction specified in
clause (B); (D) the Call Warrants that relate to the reduction specified
in clause (B) shall remain outstanding; and (E) the excess of the tender
offer proceeds over the Call Price shall be allocated in proportion to
the amount of Call Warrants deemed exercised as set forth in clause (A)
above or, if the Call Price exceeds the tender offer proceeds the amount
of such excess shall be paid by the exercising Warrant Holders pro rata
in respect to their proportionate exercises of Call Warrants.
(v) If the tender offer is terminated by the Underlying Securities
Issuer or any other tender offeror without consummation thereof or if all
tenders by the Trust of Underlying Securities are otherwise rejected,
then (1) the Call Notices will be of no further force and effect, and (2)
any Call Warrants relating to such Call Notices will not be exercised and
will remain outstanding.
Section 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 clause 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
14
Expenses if any lesser percentage of the Certificateholders requesting such
action pursuant hereto reimburse the Trustee for the cost thereof from their
own funds in advance. If Extraordinary Expenses are not approved unanimously
as set forth in the first sentence of this Section 6(b), such Extraordinary
Expenses shall not be an obligation of the Trust, and the Trustee shall not
file any claim against the Trust therefor notwithstanding failure of
Certificateholders to reimburse the Trustee.
Section 7. Optional Exchange; Optional Call.
(a) On any (i) Distribution Date, (ii) date on which a tender offer for
some or all of the Underlying Securities is consummated or (iii) date on which
the Underlying Securities are to be redeemed by the Underlying Securities
Issuer, any holder of Class A-1 Certificates and Class A-2 Certificates and
the related Call Warrants, if Call Warrants related to such Certificates are
outstanding, may exchange such Certificates and, if applicable, Call Warrants,
for a distribution of Underlying Securities representing the same percentage
of the Underlying Securities as such Certificates represent of all outstanding
Certificates. On any Call Date, any Warrant Holder may exchange Called
Certificates for a distribution of Underlying Securities representing the same
percentage of Underlying Securities as such Called Certificates represent of
all outstanding Certificates; provided, however, 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, however,
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.
15
(v) If the Certificateholder is the Depositor or any Affiliate of
the Depositor, (1) the Trustee shall have received a certification from
the Certificateholder that any Certificates being surrendered have been
held for at least six months, and (2) the Certificates being surrendered
may represent no more than 5% (or 25% in the case of Certificates
acquired by the Underwriters but never distributed to investors) of the
then outstanding Certificates.
(vi) The Trustee shall not be obligated to determine whether an
Optional Exchange complies with the applicable provisions for exemption
under Rule 3a-7 of the Investment Company Act of 1940, as amended, or the
rules or regulations promulgated thereunder.
(vii) The provisions of Section 4.07 of the Standard Terms shall not
apply to an Optional Exchange pursuant to this Section 7(b). This Section
7(b) shall not provide any person with a lien against, an interest in or
a right to specific performance with respect to the Underlying
Securities; provided that satisfaction of the conditions set forth in
this Section 7(b) shall entitle the Certificateholder or Warrant Holder,
as applicable, to a distribution thereof.
(viii) The aggregate principal amount of Certificates exchanged in
connection with any Optional Exchange pursuant to this Section shall be
in an amount that will entitle the Certificateholders thereof to
Underlying Securities in an even multiple of the minimum denomination of
such Underlying Securities.
(ix) In the event such Optional Exchange shall occur prior to the
Distribution Date in June 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 December 1, 2002
through, but excluding, the Closing Date by a fraction, the numerator of
which shall be the Certificate Principal Balance of Certificates being
exchanged on such Optional Exchange Date and the denominator of which
shall be the total Certificate Principal Balance 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
16
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 three 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 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 5(h)(iii) and 7(d)(iii), as
applicable.
(v) Subject to receipt of the Call Price, the Trustee shall pay the
Call Price to the Certificateholders on the Call Date. The Call Price for
Class of Certificates in respect of partial calls shall be allocated pro
rata to the Certificateholders of such Class.
(vi) The Trustee shall not consent to any amendment or modification
of this Agreement (including the Standard Terms) which would adversely
affect the Warrant Holders (including, without limitation, any alteration
of the timing or amount of any payment of the Call Price or any other
provision of this Agreement in a manner adverse to the Warrant Holders)
without the prior written consent of 100% of the Warrant Holders. For
purposes of this clause, no amendment, modification or supplement
required to provide for any purchase by the Trustee of additional
Underlying Securities 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 Certificateholder or Warrant Holder, as
applicable, to a distribution thereof.
(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
17
Xxxxxx'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 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.
(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.
18
Section 8. Notices of Events of Default.
As promptly as practicable after, and in any event within 30 days after,
the occurrence of any Event of Default actually known to the Trustee, the
Trustee shall give notice of such Event of Default to the Depository, or, if
any Certificates are not then held by DTC or any other depository, directly to
the registered holders of such Certificates and to the Warrant Agent. However,
except in the case of an Event of Default relating to the payment of principal
of or interest on any of the Underlying Securities, the Trustee will be
protected in withholding such notice if in good faith it determines that the
withholding of such notice is in the interest of the Certificateholders.
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms shall
not apply to the Sears Xxxxxxx Acceptance Note-Backed Series 2003-5
Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Sears Xxxxxxx Acceptance Note-Backed Series
2003-5 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 Sears Xxxxxxx Acceptance Note-Backed Series 2003-5 Certificates.
(f) If the Trustee has not received payment with respect to a Collection
Period on the Underlying Securities on or prior to the related Distribution
Date, such distribution will be made promptly upon receipt of such payment. No
additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Class A-1 Certificateholders pro
rata in proportion to their respective entitlements to such delayed payments.
(g) The outstanding Certificate 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.
19
(i) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee may be removed upon 60 days prior written notice delivered by the
holders of Class A-1 Certificates and Class A-2 Certificates representing the
Required Percentage-Removal.
(j) In the event that the Internal Revenue Service challenges the
characterization of the Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application
of Subchapter K of the Code and is hereby empowered to execute such forms on
behalf of the Certificateholders.
(k) Notwithstanding anything in the Standard Terms to the contrary, the
Trustee, upon written direction by the Depositor, will execute the
Certificates.
(l) In relation to Section 7.01(f) of the Standard Terms, any periodic
reports filed by the Trustee pursuant to the Exchange Act in accordance with
the customary practices of the Depositor, need not contain any independent
reports.
(m) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee will have no recourse to the Underlying Securities.
(n) The Trustee shall promptly notify each Rating Agency upon its
obtaining actual knowledge of the occurrence of a Defeasance (as defined in
the Indenture) with respect to the Underlying Securities Issuer.
(o) The Trust will not merge or consolidate with any other entity without
confirmation from each Rating Agency that such merger or consolidation will
not result in the qualification, reduction or withdrawal of its then-current
rating on the Certificates.
(p) All directions, demands and notices hereunder or under the Standard
Terms shall be in writing and shall be delivered as set forth below (unless
written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
20
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: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copies of all directions, demands and notices required to be given to the
Certificateholders hereunder or under the Standard Terms will also be given to
the Warrant Holders in writing as set forth in this Section 9, and copies of
all directions, demands and notices required to be given to the Trustee
hereunder or under the Standard Terms will also be given to the Warrant Agent
in writing as set forth in this Section 9.
(q) The provisions of Section 2.01(d)(iii) of the Standard Terms shall
not apply to the Sears Xxxxxxx Acceptance Note-Backed Series 2003-5
Certificates and the following shall be deemed to be inserted in its place:
21
"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"
(r) A Plan (as herein defined) 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 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.
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
22
amounts due to the Class A-1 Certificateholders and Class A-2
Certificateholders; (ii) the exercise of all outstanding Call Warrants by the
Warrant Holder; (iii) the Final Scheduled Distribution Date and (iv) the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St. Xxxxx, living on the date hereof.
Section 13. Sale of Underlying Securities; Optional Exchange. In the
event of a sale of the Underlying Securities pursuant to Section 5(c) hereof
or pursuant to the instructions of the Warrant Agent under Section 1.2 of the
Warrant Agent Agreement, the Trustee shall solicit bids for the sale of the
Underlying Securities with settlement thereof on or before the third (3rd)
Business Day after such sale from three leading dealers in the relevant
market. Any of the following dealers (or their successors) shall be deemed to
qualify as leading dealers: (1) Credit Suisse First Boston Corporation, (2)
Xxxxxxx, Xxxxx & Co., (3) Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
(4) UBS Warburg LLC, (5) Xxxxxxx Xxxxx Xxxxxx Inc., and (6) except in the case
of a sale related to the exercise of Call Warrants by the Depositor or any
Affiliate thereof, Xxxxxx Brothers Inc. The Trustee shall not be responsible
for the failure to obtain a bid so long as it has made reasonable efforts to
obtain bids. If a bid for the sale of the Underlying Securities has been
accepted by the Trustee but the sale has failed to settle on the proposed
settlement date, the Trustee shall request new bids from such leading dealers.
In the event of an Optional Exchange, the Trustee shall only deliver the
Underlying Securities to the purchaser of such Underlying Securities or sell
the Underlying Securities pursuant to this Section 13, as the case may be,
against payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust Agreement
to the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall not enter into any amendment or
modification of the Trust Agreement which would adversely affect in any
material respect the interests of the holders of any class of Certificates
without the consent of the holders of 100% of such class of Certificates;
provided, however, that no such amendment or modification will be permitted
which would alter the status of the Trust as a grantor trust for federal
income tax purposes. 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 and Class
23
A-2 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, or result in the imposition of tax upon the
Certificateholders, (ii) which would alter the timing or amount of any payment
on the Underlying Securities, including, without limitation, any demand to
accelerate the Underlying Securities, except in the event of a default under
the Underlying Securities or an event which with the passage of time would
become an event of default under the Underlying Securities and with the
unanimous consent of holders of all outstanding Class A-1 Certificates and
Class A-2 Certificates and all Warrant Holders, or (iii) which would result in
the exchange or substitution of any of the outstanding Underlying Securities
pursuant to a plan for the refunding or refinancing of such Underlying
Securities except in the event of a default under the Indenture and only with
the consent of Certificateholders representing 100% of the Class A-1
Certificates, 100% of the Class A-2 Certificates and 100% of the Warrant
Holders. The Trustee shall have no liability for any failure to act resulting
from Certificateholders' late return of, or failure to return, directions
requested by the Trustee from the Certificateholders.
(b) In the event that an offer is made by the Underlying Securities
Issuer to issue new obligations in exchange and substitution for any of the
Underlying Securities, pursuant to a plan for the refunding or refinancing of
the outstanding Underlying Securities or any other offer is made for the
Underlying Securities, the Trustee shall notify the Class A-1
Certificateholders, Class A-2 Certificateholders and the Warrant Holders of
such offer promptly. Subject to the rights of the Warrant Holders to exercise
Call Warrants in connection with a tender offer or Change of Control Offer for
the Underlying Securities, the Trustee must reject any such offer unless the
Trustee is directed by the affirmative vote of the holders of 100% of the
Class A-1 Certificates, Class A-2 Certificates and Call Warrants to accept
such offer and the Trustee has received the tax opinion described above. If
pursuant to the preceding sentence, the Trustee accepts any such offer the
Trustee shall promptly notify the Rating Agencies.
(c) If an event of default under the Indenture occurs and is continuing,
and if directed by a majority of the outstanding Class A-1 Certificateholders
and Class A-2 Certificateholders, 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.
(d) Subject to the rights of the Warrant Holders pursuant to Section 5(h)
hereof, the Trustee shall not tender Underlying Securities on behalf of the
Trust in connection with a Change of Control Offer, regardless of any vote or
direction of the Certificateholders to the contrary.
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
24
the event that, notwithstanding the aforementioned intent of the parties, any
Underlying Securities are held to be property of the Depositor, then, it is
the express intent of the parties that such conveyance be deemed a pledge of
such Underlying Securities by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor, pursuant to Section 10.07 of the Standard
Terms. In connection with any such grant of a security interest in the
Underlying Securities (including any such grant in connection with any sale of
additional Underlying Securities pursuant to Section 3(d)), the Depositor
hereby represents and warrants to Trustee as follows:
(i) In the event the Underlying Securities are held to be property of
the Depositor, then the Trust Agreement creates a valid and
continuing security interest (as defined in the applicable Uniform
Commercial Code) in the Underlying Securities in favor of the
Trustee which security interest is prior to all other liens, and is
enforceable as such as against creditors of, and purchasers from,
the Depositor.
(ii) The Underlying Securities have been credited to a trust account (the
"Securities Account") of the Trustee, or its authorized agent, in
accordance with Section 2.01 of the Standard Terms. The Trustee, as
securities intermediary for the Securities Account, has agreed to
treat the Underlying Securities as "financial assets" within the
meaning of the Uniform Commercial Code.
(iii) Immediately prior to the transfer of the Underlying Securities to
the Trust, Depositor owned and had good and marketable title to the
Underlying Securities free and clear of any lien, claim or
encumbrance of any Person.
(iv) Depositor has received all consents and approvals required by the
terms of the Underlying Securities to the transfer to the Trustee of
its interest and rights in the Underlying Securities as contemplated
by the Trust Agreement.
(v) Depositor has taken all steps necessary to cause the Trustee, as
securities intermediary for the Securities Account, to identify on
its records that the Trustee, as the trustee of the Trust, is the
Person having a security entitlement against the securities
intermediary in the Securities Account.
(vi) Depositor has not assigned, pledged, sold, granted a security
interest in or otherwise conveyed any interest in the Underlying
Securities (or, if any such interest has been assigned, pledged or
otherwise encumbered, it has been released). Depositor has not
authorized the filing of and is not aware of any financing
statements against Depositor that includes a description of the
Underlying Securities. Depositor is not aware of any judgment or tax
lien filings against Depositor.
(vii) The Securities Account is not in the name of any Person other than
the Trust. Depositor has not consented to the compliance by the
Trustee, as securities intermediary, with entitlement orders of any
Person other than the Trustee, as trustee of the Trust.
25
IN WITNESS WHEREOF, the parties hereto have caused this
Series Supplement to be duly executed by their respective authorized officers
as of the date first written above.
XXXXXX ABS CORPORATION,
as Depositor
By:
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee on behalf of
the Corporate Backed Trust
Certificates Sears Xxxxxxx
Acceptance Note-Backed Series
2003-5 Trust
By:
--------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
26
SCHEDULE I
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED SERIES 2003-5
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 7% Debentures due June 1, 2032
Issuer: Sears Xxxxxxx Acceptance Corp.
CUSIP Number: 81240BK6
Principal Amount Deposited: $29,938,000
Original Issue Date: May 29, 2002.
Principal Amount of
Underlying Securities
Originally Issued: $1,000,000,000
Maturity Date: June 1, 2032
Interest Rate: 7% per annum.
Interest Payment Dates: June 1st and December 1st.
I-1
EXHIBIT A-1
FORM OF TRUST CERTIFICATE CLASS A-1
CLASS A-1 CERTIFICATE
NUMBER 1 1,099,360 $25 PAR CERTIFICATES
CUSIP NO. 21988G 28 8
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL OWNERSHIP
INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
A-1-1
XXXXXX ABS CORPORATION
1,099,360
CORPORATE BACKED TRUST CERTIFICATES,
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED SERIES 2003-5
7.625% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$29,938,000 aggregate principal amount of 7.00% Notes due June 1, 2032, issued
by Sears Xxxxxxx Acceptance Corp. (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 1,099,360
Corporate Backed Trust Certificates, Sears Xxxxxxx Acceptance Note-Backed
Series 2003-5 Trust (the "Trust"), having an aggregate Certificate Principal
Balance of $27,484,000, representing a nonassessable, fully-paid,
proportionate undivided beneficial ownership interest in the 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, Sears Xxxxxxx Acceptance Note-Backed Series 2003-5,
dated as of March 5, 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, Sears Xxxxxxx Acceptance Note-Backed
Series 2003-5, 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 5, 2003; provided, however,
that any income from the investment of Trust funds in certain permitted
investments ("Eligible Investments") does not constitute Trust Property.
A-1-2
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by
the Trust Agreement shall have terminated in accordance therewith,
distributions will be made on each Distribution Date, to the Person in whose
name this Certificate is registered on the applicable Record Date, in an
amount equal to such Certificateholder's proportionate undivided beneficial
ownership interest in the amount required to be distributed to the Holders of
the Certificates on such Distribution Date. The Record Date applicable to any
Distribution Date is the close of business on the day immediately preceding
such Distribution Date (whether or not a Business Day). If a payment with
respect to the Underlying Securities is made to the Trustee after the date on
which such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Trust, or join in any institution against the Trust of, any bankruptcy
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates or the Trust
Agreement.
Distributions made on this Certificate will be made as provided in the
Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee shall be CEDE & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the Corporate
Trust Office or such other location as may be specified in such notice.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
A-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED
SERIES 2003-5 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but
solely as Trustee,
By:____________________________________
Authorized Signatory
Dated: March 5, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates, Sears Xxxxxxx
Acceptance Note-Backed Series 2003-5, described in the Trust Agreement
referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION not in its individual capacity but solely
as Trustee,
By:_________________________________
Authorized Signatory
A-1-4
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain payments and
collections respecting the Underlying Securities, all as more specifically set
forth herein and in the Trust Agreement. The registered Holder hereof, by its
acceptance hereof, agrees that it will look solely to the Trust Property (to
the extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of Class A-1 Certificates in the manner set forth in the Series
Supplement and the Standard Terms. Any such consent by the Holder of this
Certificate (or any predecessor Certificate) shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent in made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in denominations
of $25.
As provided in the Trust Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies of the Certificate Registrar maintained by the Trustee
in the Borough of Manhattan, the City of New York, duly endorsed by or
accompanied by an assignment in the form below and by such other documents as
required by the Trust Agreement, and thereupon one or more new Certificates of
the same class in authorized denominations evidencing the same principal
amount will be issued to the designated transferee or transferees. The initial
Certificate Registrar appointed under the Trust Agreement is U.S. Bank Trust
National Association.
No service charge will be made for any registration of transfer or exchange,
but the Trustee may require exchange of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the Trustee
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the Trust
created thereunder shall constitute a fixed investment trust for federal
income tax purposes under Treasury Regulation Section 301.7701-4, and the
Certificateholder agrees to treat the Trust, any distributions therefrom and
its beneficial interest in the Certificates consistently with such
characterization.
The Trust and the obligations of the Depositor and the Trustee created by the
Trust Agreement with respect to the Certificates shall terminate upon the
earliest to occur of (i) the payment in full at maturity or sale by the Trust
after a payment default or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders and Class A-2 Certificateholders; (ii) the
exercise of all outstanding Call
A-1-5
Warrants by the Warrant Holder; (iii) the Final Scheduled Distribution Date
and (iv) the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the
Code, an entity whose underlying assets include plan assets by reason of any
such plan's investment in the entity, including an individual retirement
account or Xxxxx plan (any such, a "Plan") may purchase and hold Certificates
if the Plan can represent and warrant that its purchase and holding of the
Certificates would not be prohibited under ERISA or the Code.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee) the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing ______________________ Attorney to
transfer said Certificate on the books of the Certificate Register, with full
power of substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed
by an "eligible guarantor institution" meeting the requirements of the
Certificate Registrar, which requirements include membership or participation
in the Security Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-1-7
EXHIBIT A-2
FORM OF TRUST CERTIFICATE CLASS A-2
CLASS A-2 CERTIFICATE
NUMBER 1 CUSIP NO. 21988G CJ 3
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS A-2 CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER SUCH ACT IS IN EFFECT
OR PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT. THE CLASS A-2
CERTIFICATE REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE
TERMS OF THE SERIES SUPPLEMENT.
THE PRINCIPAL AMOUNT OF THIS CLASS A-2 CERTIFICATE IS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A-2
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL
OWNERSHIP INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
A-2-1
XXXXXX ABS CORPORATION
CORPORATE BACKED TRUST CERTIFICATES,
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED SERIES 2003-5
$2,454,000 PRINCIPAL AMOUNT
evidencing a proportionate undivided beneficial ownership interest in the
Trust, as defined below, the property of which consists principally of
$29,938,000 aggregate principal amount of 7.00% Notes due June 1, 2032, issued
by Sears Xxxxxxx Acceptance Corp. (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 24.54
Corporate Backed Trust Certificates, Sears Xxxxxxx Acceptance Note-Backed
Series 2003-5 Trust (the "Trust"), having an aggregate Certificate Principal
Balance of $2,454,000, representing a nonassessable, fully-paid, proportionate
undivided beneficial ownership interest in the 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, Sears Xxxxxxx Acceptance
Note-Backed Series 2003-5, dated as of March 5, 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, Sears Xxxxxxx
Acceptance Note-Backed Series 2003-5, 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
5, 2003; provided, however, that any income from the investment of Trust funds
in certain permitted investments ("Eligible Investments") does not constitute
Trust Property.
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, no distributions of interest will be made on this Certificate on
any Distribution Date.
A-2-2
Subject to the terms and conditions of the Trust Agreement
(including the availability of funds for distributions) and until the
obligation created by the Trust Agreement shall have terminated in accordance
therewith, the Trust will distribute on the Final Scheduled Distribution Date,
to the Person in whose name this Certificate is registered on the applicable
Record Date, an amount equal to such Certificateholder's proportionate
undivided beneficial ownership interest in the amount required to be
distributed to the Holders of the Certificates on such Final Scheduled
Distribution Date.
The Record Date applicable to the Final Scheduled Distribution Date
is the close of business on the day immediately preceding such Final Scheduled
Distribution Date (whether or not a Business Day). If a payment with respect
to the Underlying Securities is made to the Trustee after the date on which
such payment was due, then the Trustee will distribute any such amounts
received on the next occurring Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Trust, or join in any institution against the Trust of,
any bankruptcy proceedings under any United States Federal or state bankruptcy
or similar law in connection with any obligations relating to the Certificates
or the Trust Agreement.
Distributions made on this Certificate will be made as provided in
the Trust Agreement by the Trustee by wire transfer in immediately available
funds, or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee shall be CEDE & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the Corporate
Trust Office or such other location as may be specified in such notice.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed as of the date set forth below.
CORPORATE BACKED TRUST CERTIFICATES,
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED
SERIES 2003-5 TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but
solely as Trustee,
By:___________________________________
Authorized Signatory
Dated: March 5, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Corporate Backed Trust Certificates, Sears
Xxxxxxx Acceptance Note-Backed Series 2003-5, described in the Trust Agreement
referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION not in its individual capacity but solely
as Trustee,
By:_________________________________
Authorized Signatory
A-2-4
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain
payments and collections respecting the Underlying Securities, all as more
specifically set forth herein and in the Trust Agreement. The registered
Holder hereof, by its acceptance hereof, agrees that it will look solely to
the Trust Property (to the extent of its rights therein) for distributions
hereunder.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor and
the Trustee with the consent of the holders of Class A-2 Certificates in the
manner set forth in the Series Supplement and the Standard Terms. Any such
consent by the Holder of this Certificate (or any predecessor Certificate)
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent in
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the holders
of any of the Certificates.
The Certificates are issuable in fully registered form only in
denominations of $100,000.
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)
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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.
An employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan described in Section
4975(e) of the Code, an entity whose underlying assets include plan assets by
reason of any such plan's investment in the entity, including an individual
retirement account or Xxxxx plan (any such, a "Plan") may purchase and hold
Certificates if the Plan can represent and warrant that its purchase and
holding of the Certificates would not be prohibited under ERISA or the Code.
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee) the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing ____________________ Attorney to
transfer said Certificate on the books of the Certificate Register, with full
power of substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed
by an "eligible guarantor institution" meeting the requirements of the
Certificate Registrar, which requirements include membership or participation
in the Security Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
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EXHIBIT B
FORM OF WARRANT AGENT AGREEMENT
WARRANT AGENT AGREEMENT
CORPORATE BACKED TRUST CERTIFICATES
SEARS XXXXXXX ACCEPTANCE NOTE-BACKED
SERIES 2003-5 TRUST
WARRANT AGENT AGREEMENT, dated as of March 5, 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,
Sears Xxxxxxx Acceptance Note-Backed Series 2003-5 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 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, Sears Xxxxxxx Acceptance
Note-Backed Series 2003-5, dated as of March 5, 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 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) Except as otherwise provided herein in connection with a Call
Notice relating to a tender offer for or redemption of the Underlying
Securities, the Warrant Holder shall have made payment to the Warrant
Agent, by wire transfer or other immediately available funds acceptable
to the Warrant Agent, in the amount of the Call Price, no later than
10:00 a.m. (New York City time) on the Call Date.
(iv) The Warrant Holder shall exercise Call Warrants relating to
Class A-1 Certificates and Call Warrants relating to Class A-2
Certificates which represent a like percentage of all Class A-1
Certificates and Class A-2 Certificates.
(v) The Warrant Holder may not exercise the Call Warrants at any
time when such Warrant Holder is insolvent, and such Warrant Holder shall
be required to certify that it is solvent at the time of exercise, by
completing the Form of Subscription attached to the Call Warrants and
delivering such completed Form of Subscription to the Trustee on or prior
to the Call Date and by delivering to the Trustee 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 Balance equal to $25 per Call Warrant, and in the case
of the Class A-2 Certificates, Class A-2 Certificates having a Certificate
Principal 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 redemption by the Trust pursuant to Sections
5(h)(iii) and 7(g)(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, 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 Sections 5(h)(iii) and
7(g)(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.
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Section 1.4 No Rights as Holder of Certificates Conferred by Call
Warrants. Prior to the exercise thereof, Call Warrants shall not entitle the
Warrant Holder to any of the rights of a holder of the Certificates,
including, without limitation, the right to receive the payment of any amount
on or in respect of the Certificates or to enforce any of the covenants of the
Trust Agreement.
Section 1.5 Pro Rata Reduction of Call Warrants if Partial Redemption of
Underlying Securities. If Underlying Securities are redeemed in part by the
Underlying Securities Issuer and the Warrant Holders do not exercise their
Call Rights in connection with such partial redemption, the number of Call
Warrants held by each Warrant Holder shall be reduced proportionately so that
the aggregate amount of Class A-1 Certificates callable by Call Warrants shall
equal the amount of outstanding Class A-1 Certificates after giving effect to
such partial redemption and the aggregate Certificate Principal Balance of
Class A-2 Certificates callable by Call Warrants shall equal the outstanding
Certificate Principal Balance 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 attached 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
Warrant for its own account or for the account of a QIB.
(2) The transferee understands that the Call Warrant is 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 Warrants for registration of transfer
or for exchange to the Warrant Agent, the Warrant Agent shall (subject to
compliance with Article II)
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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 attached 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 5, 2008, (ii) after
the Underlying Securities Issuer announces that it will redeem (in whole or in
part), 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 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": 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
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purchased pursuant to the exercise of the Call Warrants, plus any accrued and
unpaid interest on such amount to but excluding the Call Date and (ii) in the
case of the Class A-2 Certificates being purchased pursuant to the exercise of
the Call Warrants, the present value of all amounts that would otherwise have
been payable on the Class A-2 Certificates being purchased pursuant to the
exercise of the Call Warrants for the period from the related Call Date to the
Final Scheduled Distribution Date using a discount rate of 8.75% 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 5, 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.
"Rating Agencies": Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. and any successor thereto.
"Resale Restriction Termination Date": As defined in Section 3.2 hereof.
"Responsible Officer": As defined in the Trust Agreement.
"Rule 144A": As defined in Section 3.2.
"Securities Act": The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time.
"Trust": As defined in the recitals.
"Trust Agreement": As defined in the recitals.
"Trustee": As defined in the recitals, or any successor thereto under the
Trust Agreement.
"Warrant Agent": As defined in the recitals, or any successor thereto
under this Warrant Agent Agreement.
"Warrant Agent Agreement": As defined in the recitals.
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"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.
(f) The Warrant Agent is xxxxxx authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the
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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 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,
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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 hereunder or pursuant to the Trust Agreement or this Agreement
by facsimile within one Business Day of receipt thereof.
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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 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.
B-11
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 s of the date first
above written.
XXXXXX ABS CORPORATION,
as Depositor
By:______________________________________
Name: Xxxx Xxxxxxx
Title: Senior Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee and Authenticating Agent
By:______________________________________
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Secretary and
Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:______________________________________
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Secretary and
Vice President
B-13
EXHIBIT A TO WARRANT AGENT AGREEMENT
FORM OF CALL WARRANT INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated: [_______________]
U.S. Bank Trust National Association,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Corporate Backed Trust Certificates, Sears Xxxxxxx Acceptance Note-Backed
Series 2003-5
Ladies and Gentlemen:
In connection with its proposed purchase of Call Warrants (the "Call
Warrants") which represent the right to call $____________ aggregate
certificate principal amount of Corporate Backed Trust Certificates, Sears
Xxxxxxx Acceptance Note-Backed Series 2003-5 Trust Class A-[ ] 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.
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
B-A-1
decides to resell, pledge or otherwise transfer any Security, such
resale, pledge or other transfer must comply with the provisions of
Section 3(e) of the Series Supplement relating to the Call Warrants 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 Security 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(e) of this Series
Supplement, including if required a letter substantially in the form
hereof.
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 Security 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 Security 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
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
B-A-2
credit pursuant to a loan agreement entered into in the ordinary
course of its trade or business.
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.
7. 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 Security. 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 Call Warrants, for any purpose.
You and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:____________________________________
Name:
Title:
B-A-3
EXHIBIT C
FORM OF CLASS A-2 CERTIFICATE 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 ABS Corporation
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 principal amount of Class A-2 Certificates (the "Class A-2
Certificates") representing an interest in the Corporate Backed Trust
Certificates, Sears Xxxxxxx Acceptance Note-Backed Series 2003-5 Trust (the
"Trust"), the undersigned, by executing this letter (the "Purchaser") confirms
that:
1. The Purchaser 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 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 Class
A-2 Certificates, and the Purchaser is able to bear the substantial
economic risks of such an investment. The Purchaser has relied upon its
own tax, legal and financial advisors in connection with its decision to
purchase the Class A-2 Certificates.
2. The Purchaser is not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Depositor and is either:
(i) (A) a "Qualified Institutional Buyer" (as defined in Rule 144A under
the Securities Act of 1933, as amended (the "1933 Act" and "Rule 144A"))
and has delivered to you the
C-1
certification contained herein as to the fact that it is a Qualified
Institutional Buyer and (B) acquiring the Class A-2 Certificates for its
own account or for the account of an investor of the type described in
clause (A) above as to each of which the Purchaser exercises sole
investment discretion. The Purchaser is aware that the 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 buy Rule 144A. 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; 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; in the normal course of its business, such
purchaser invests in or purchases securities similar to the Class A-2
Certificates and such purchaser has such knowledge and experience in
financial and business matters that such purchaser is capable of
evaluating the merits and risks of purchasing any of the Class A-2
Certificates and such purchaser is aware that such purchaser (or any such
investor account) may be required to bear the economic risk of an
investment in the Class A-2 Certificates for an indefinite period of time
and such purchaser (or such investor account) is able to bear such risk
for an indefinite period and such purchaser has agreed to deliver a
letter substantially in the form of Exhibit C to the Series Supplement to
the Initial Purchaser.
3. 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 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
certificate may be exchanged for a beneficial interest in a global Class
A-2 Certificate.
4. 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
C-2
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."
5. 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 in the form of Exhibit C to the Series Supplement and
otherwise satisfactory to the Trustee and the Initial Purchaser, as
applicable, or such other written statement as the Depositor shall
prescribe.
6. The Purchaser agrees that if at some time in the future it wishes to
transfer or exchange any of the 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 agreements, 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.
7. 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 and 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.
C-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,
By:____________________________________
Name:
Title:
