Exhibit 4.1
SUPPLEMENT
TO
SERIES SUPPLEMENT
CORPORATE BACKED TRUST CERTIFICATES SERIES 2001-25 TRUST
THIS SUPPLEMENT, dated as of June 3, 2002 (this "Supplement"), to the
Series Supplement dated as of June 14, 2001 (the "Series Supplement") between
Xxxxxx ABS Corporation, as depositor (the "Depositor"), and U.S. Bank Trust
National Association, as the trustee (the "Trustee" and, together with the
Depositor, the "Parties"), with respect to the Corporate Backed Trust
Certificates Series 2001-25 Trust, which supplements the Standard Terms for
Trust Agreements, dated as of January 16, 2001 (the "Standard Terms" and,
together with the Series Supplement, the "Trust Agreement"), between the
Depositor and the Trustee.
W I T N E S S E T H:
WHEREAS, the Parties entered into the Series Supplement for the
purpose of setting forth, among other things, certain supplemental information
with respect to the issuance of certificates initially designated Corporate
Backed Trust Certificates Series 2001-25;
WHEREAS, the Parties desire to cause the Trust to issue an additional
565,200 Class A-1 Certificates with an initial aggregate Certificate Principal
Amount of $14,130,000 and additional Class A-2 Certificates with an aggregate
initial notional amount of $14,130,000; and
WHEREAS, Section 10.01 of the Standard Terms and Section 14 of the
Series Supplement permit the amendment of the Series Supplement upon the terms
and conditions specified therein and the Parties desire to amend the Series
Supplement to cure certain ambiguities contained therein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Parties hereby agree as follows:
1. Definitions. Each capitalized term used but not defined herein shall
have the meaning assigned to such term in the Trust Agreement.
2. Issuance of Additional Certificates. Pursuant to Section 3(d) of the
Series Supplement, the Depositor hereby sells to the Trust an additional
$14,130,000 of Underlying Securities and the Trust hereby issues an additional
565,200 Class A-1 Certificates with an initial aggregate Certificate Principal
Amount of $14,130,000 and additional Class A-2 Certificates with an initial
notional amount of $14,130,000 (the "Additional Certificates"). The Additional
Certificates shall have an original issue date of even date herewith. The Trust
is also issuing call warrants with respect to the Additional Certificates (the
"Additional Call Warrants"). The descriptions of the Underlying Securities, the
Certificates and the Call Warrants in the Series
Supplement, including the Schedules and Exhibits thereto, shall be deemed to be
amended mutatis mutandis.
3. Amendments.
(a) Section 2(a) of the Series Supplement is hereby amended by deleting the
definition of "Call Price" in its entirety and inserting the following in its
place:
"Call Price" shall mean, for each related Call Date, (i) in
the case of the Class A-1 Certificates, the par value of the
Class A-1 Certificates being purchased pursuant to the
exercise of the Call Warrants, plus any accrued and unpaid
interest on such amount (including any deferred
distributions with interest thereon) to but excluding the
Call Date and (ii) in the case of the Class A-2
Certificates, the present value of all amounts that would
otherwise have been payable on the Class A-2 Certificates
being purchased pursuant to the exercise of the Call
Warrants for the period from the related Call Date to the
Final Scheduled Distribution Date using a discount rate of
10% per annum, assuming no delinquencies, deferrals,
redemptions or prepayments on the Underlying Securities
shall occur after the related Call Date."
(b) Section 3(e) of the Series Supplement is hereby deleted in its entirety
and the following is hereby inserted in its place:
"No Class A-2 Certificate or 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 of 1933,
as amended (the "Securities Act"),after the later of the
original issue date of such Class A-2 Certificates or Call
Warrants, as applicable, 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 Call Warrants, as applicable (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 or Call Warrants 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 substantially in the form of (A) Exhibit C-1 hereto,
in the case of any offer, resale, assignment or transfer of
Class A-2 Certificates and (B) Exhibit C-2 hereto, in the
case of any offer, resale, assignment or transfer of Call
Warrants. Prior to any offer, resale, assignment or transfer
of any Class A-2 Certificates or 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 Class A-2 Certificates or 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 Class A-2 Certificates or Call Warrants, as
applicable, for its own account or for the account of a QIB.
(2) The transferee understands that the Class A-2
Certificates or Call Warrants, as applicable, 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 or Call Warrants,
as applicable, 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 or Call Warrants, as applicable,
prior to the Resale Restriction Termination Date, such Class
A-2 Certificates or Call Warrants, as applicable, 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 Class A-2
Certificates or Call Warrants, as applicable, from it of the
resale restrictions referred to in clause (A) above."
(c) Section 7 of the Series Supplement is hereby amended as follows:
(i) Section 7(a) is hereby amended by adding the following sentence at the
end thereof:
"On any Call Date, any Warrant Holder may exchange Called
Certificates (as defined in the Warrant Agent Agreement) for
a distribution of Underlying Securities representing the
same percentage of Underlying Securities as such Called
Certificates represent of all outstanding Certificates;
provided that any such exchange shall either (x) result from
an exercise of all Call Warrants owned by such Warrant
Holder or (y) occur on a Call Date on which such Warrant
Holder, alone or together with one or more other Warrant
Holders, shall exchange Called Certificates relating to
Underlying Securities having an aggregate principal amount
equal to or in excess of the product of (i) 0.1 and (ii) the
aggregate principal amount of the Underlying Securities
deposited into the Trust on the Closing Date."
(ii) The following proviso shall be added at the end of Section 7(b)(i):
"; provided that for an Optional Exchange to occur on a Call
Date, unless otherwise specified therein, the Call Notice
shall be deemed to be the notice required hereunder."
(iii) The following proviso shall be added at the end of Section 7(b)(ii):
"; 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."
(iv) The following proviso shall be added at the end of Section 7(b)(vii):
"; 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."
(iv) The following subsections shall be added after the existing Section
7(b)(vii) as a new Section 7(b)(viii) and Section 7(b)(ix), respectively:
"(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."
(vi) Section 7(d)(vi) is hereby deleted in its entirety and the following
is hereby inserted in its place:
"(vi) The Trustee shall not consent to any amendment or
modification of this Agreement (including the Standard
Terms) which would alter the timing or amount of any payment
of the Call Price or any other provision of this Section 7
without the prior written consent of 100% of the Warrant
Holders."
(d) Schedule I of the Series Supplement is hereby deleted in its entirety.
(e) Exhibit C of the Series Supplement is hereby deleted in its entirety
and the attached Exhibits C-1 and C-2 hereto shall be inserted in its place.
4. Additional Notice Provisions. For the purposes of the Series Supplement
and the Warrant Agent Agreement, all notices to be provided to the Trustee shall
also be provided to the Warrant Agent, and all notices to be provided to the
Certificateholders shall also be provided to the Warrant Holders.
5. Effect of Supplement. Except as supplemented hereby, the Series
Supplement is ratified and confirmed and continues in full force and effect.
6. Counterparts. This 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.
7. Governing Law. THIS 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.
8. Headings. The headings of Sections contained in this Amendment are
provided for convenience only. They form no part of this Amendment or the Series
Supplement and shall not affect the construction or interpretation of this
Amendment or Series Supplement or any provisions hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
the Series Supplement to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.
XXXXXX ABS CORPORATION,
as Depositor
By: _________________________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee on behalf
of the Corporate Backed Trust Certificates,
Series 2001-25 Trust
By: _________________________________________
Name:
Title:
EXHIBIT C-1
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated: [_______________]
U.S. Bank Trust National Association,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with its proposed purchase of ________________ aggregate
notional amount of Corporate Backed Trust Certificates, Series 2001-25 Trust
Class A-2 Certificates (the "Securities"), more particularly described in
Schedule A hereto, the undersigned purchaser (the "Purchaser") confirms that:
1. The Purchaser understands that substantial risks are involved in an
investment in the Securities. The Purchaser represents that in making its
investment decision to acquire the Securities, 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 Securities, 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 Securities.
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 Securities 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 Securities 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 Securities have not been and will not be
registered under the 1933 Act or under the securities or blue sky laws of
any state, and that (i) if it decides to resell, pledge or otherwise
transfer any Security, such resale, pledge or other transfer must comply
with the provisions of Section 3(e) of the Series Supplement relating to
the Securities 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 Securities will bear a legend
substantially to the following effect, unless otherwise agreed by the
Depositor and the Trustee:
"THIS SECURITY 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 SECURITY 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 Securities 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 Securities
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 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 Securities, it will not transfer or
exchange any of the Securities 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 Securities (or any interest therein) in
contravention of any of the restrictions and conditions in the agreements,
as applicable, shall be void, and the purported transferee in such transfer
shall not be recognized by any Person as a holder of such Securities, for
any purpose.
You and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:_________________________________
Name:
Title:
[Medallion Stamp to be affixed here]
EXHIBIT C-2
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated: ____________
U.S. Bank Trust National Association,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx ABS Corporation,
as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with its proposed purchase of the Call Warrants (the "Call
Warrants") more particularly described in Schedule A hereto, 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 decides to resell, pledge or otherwise
transfer any Call Warrant, such Call Warrant may be resold, pledged or
transferred without registration only to an entity that has delivered to
the
Depositor and the Trustee a certification that it is a Qualified
Institutional Buyer that purchases (1) for its own account or (2) for the
account of such a Qualified Institutional Buyer, that is, in either case,
aware that the resale, pledge or transfer is being made in reliance on said
Rule 144A and (ii) it will, and each subsequent holder will be required to,
notify any purchaser of any Call Warrant from it of the resale restrictions
referred to in clause (i) above.
4. The Purchaser understands that each of the Call Warrants will bear a legend
substantially to the following effect, unless otherwise agreed by the
Depositor and the Trustee:
"THIS CALL WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT TO AN
EXEMPTION THEREFROM UNDER SUCH ACT. THE CALL WARRANT
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED HEREIN OR IN THE SERIES
SUPPLEMENT."
5. The Purchaser understands that no subsequent transfer of the Call Warrants
is permitted unless (A) such transfer is of a Call Warrant with the
applicable minimum denomination and (B) the Purchaser causes the proposed
transferee to provide to the Depositor and the Trustee such documentation
as may be required pursuant to Section 3.2 of the Warrant Agent Agreement,
including, if required, a letter substantially in the form hereof, or such
other written statement as the Depositor shall reasonably prescribe.
6. The Purchaser is a person or entity (a "Person") who is either
D. (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
E. a Person not described in (A), whose ownership of such Call Warrant is
effectively connected with such Person's conduct of a trade or
business within the United States within the meaning of the Internal
Revenue Code of 1986, as amended (the "Code"), and its ownership of
any interest in such Call Warrant will not result in any withholding
obligation with respect to any payments with respect to the Call
Warrants by any Person (other than withholding, if any, under Section
1446 of the Code), or
F. a Person not described in (A) or (B) above, who is not a Person: (1)
that owns, directly or indirectly, 10% or more of the total combined
voting power of all classes
of stock in the Underlying Securities Issuer (as defined in the
Prospectus Supplement) entitled to vote, (2) that is a controlled
foreign corporation related to the Underlying Securities Issuer within
the meaning of Section 864(d)(4) of the Code, or (3) that is a bank
extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business.
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 Call Warrant. The Purchaser
understands that any purported transfer of the Call Warrants (or any
interest therein) in contravention of any of the restrictions and
conditions in the agreements, as applicable, shall be void, and the
purported transferee in such transfer shall not be recognized by any Person
as a holder of such 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: ____________________________