EXHIBIT 4
PREFERREDPLUS TRUST CERTIFICATES SERIES ALL-1
SERIES SUPPLEMENT
between
XXXXXXX XXXXX DEPOSITOR, INC.,
as Depositor,
and
THE BANK OF NEW YORK,
as Trustee and Securities Intermediary
Dated as of December 20, 2001
SERIES SUPPLEMENT, dated as of December 20, 2001 (the "Supplement"),
by and between XXXXXXX XXXXX DEPOSITOR, INC., a Delaware corporation, as
Depositor, THE BANK OF NEW YORK, a New York corporation, as Trustee and
Securities Intermediary.
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 Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
February 20, 1998 (the "Standard Terms" and, together with this Supplement, the
"Trust Agreement"), by and between the Depositor and the Trustee and Securities
Intermediary, as modified by this Supplement;
WHEREAS, the Depositor desires to deposit the Underlying Securities
set forth on Schedule I attached hereto into the Trust;
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 the Certificates evidencing undivided interests in the Trust and Call Rights;
and
WHEREAS, the Trustee has joined in the execution of the Standard Terms
and this Supplement to evidence the acceptance by the Trustee of the Trust;
WHEREAS, the Securities Intermediary has joined in the execution of
the Standard Terms and this Supplement to evidence the acceptance by the
Securities Intermediary of its obligations thereunder and hereunder;
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 and Securities Intermediary as follows:
Section 1. Incorporation of Standard Terms. All of the provisions of
the Standard Terms, a copy of which is attached hereto as Exhibit A, are hereby
incorporated herein by reference in their entirety and this Supplement and the
Standard Terms shall form a single agreement among the parties. In the event of
any inconsistency between the provisions of this Supplement and the provisions
of the Standard Terms, the provisions of this Supplement will control with
respect to the transactions described herein.
Section 2. Definitions. 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 Supplement (Section 2(b)
hereof sets forth terms listed in the Standard Terms that are not applicable to
this Series). Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Standard Terms.
"Allocation Ratio": The ratio of the Class A Allocation to the Class B
Allocation. Voting Rights, Liquidation Proceeds, Realized Losses and
Extraordinary Trust Expenses shall be allocated between Class A
Certificateholders and Class B Certificateholders in accordance with the
Allocation Ratio and, within each Class, each of the foregoing rights and
obligations shall be allocated to Certificateholders in accordance with their
pro rata interests in such Class.
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"Authorized Denomination": With respect to Certificates, an aggregate
stated and/or notional principal amount of $1,000, as applicable.
"Business Day": Any day that is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in the City of
New York are authorized or obligated by law, regulation or executive order to
close and that also is specified as a Business Day with respect to the
Underlying Securities.
"Call Date": Any Business Day that (i) a Call Holder designates as a
Call Date on or after February 15, 2007; (ii) a Call Holder designates as a Call
Date before February 15, 2007 after the announcement of any redemption of the
Underlying Securities or other unscheduled payment of the Underlying Securities
or after receipt by the Call Holder of notice of the termination of the Trust;
provided that if a Call Right is to be exercised after the announcement of any
redemption of the Underlying Securities or other unscheduled payment of the
Underlying Securities and prior to such redemption or other unscheduled payment,
then the Call Date designated by the Call Holder must be the second Business Day
prior to such redemption or other unscheduled payment; (iii) that at any time is
deemed a Call Date upon an acceleration of the Underlying Securities and payment
in full by the Underlying Securities Issuer of all amounts when due; or (iv) in
the case of a tender offer for the Underlying Securities, the date which a Call
Holder is deemed to designate as a Call Date pursuant to Section 2.02(i)(iv) of
the Warrant Agreement.
"Call Holder": The holder of a Class A Call Right or a Class B Call
Right.
"Call Price": The Class A Call Price and the Class B Call Price.
"Call Right": The Class A Call Right and the Class B Call Right.
"Certificates": All 1,944,800 Class A Certificates and all 1,944,800
Class B Certificates.
"Class A Allocation": The present value (discounted at the rate of
8.207% per annum) of (i) the unpaid interest, except for the Class B Payments,
due or to become due on the Underlying Securities on or prior to the Final
Scheduled Distribution Date and (ii) the principal amount of the Underlying
Securities (in each case assuming that the Underlying Securities are paid when
due and are not redeemed prior to their stated maturity).
"Class A Call Price" means $25.00 per Class A Certificate called plus
any accrued and unpaid interest on each Class A Certificate called to the Call
Date.
"Class A Call Right": The right, but not the obligation, pursuant to
the Warrant Agreement and any related Warrant Certificates (as defined in the
Warrant Agreement) of one or more Call Holders to purchase from the Class A
Certificateholders on a Call Date some or all of the Class A Certificates for
the Class A Call Price.
"Class A Certificate Account": The Certificate Account established for
the Class A Certificateholders.
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"Class A Certificates": The Certificates issued by the Trust in a
stated amount of $25 per trust certificate, entitled to receive on each
Distribution Date until and including the Final Scheduled Distribution Date, a
cash distribution of 8.00% per annum of the stated amount of the Class A
Certificates and a cash distribution of the principal amount of the Underlying
Securities on the Final Scheduled Distribution Date and such other distributions
as described herein.
"Class B Allocation": The sum of the present values (discounted at the
rate of 8.207% per annum) of the Class B Payments.
"Class B Call Price" means the sum of the present values, discounted
at the rate of 8.207% per annum, of the unpaid distributions due, or to become
due, in respect of the Class B Payments to be made on or after the Call Date.
"Class B Call Right": The right, but not the obligation, pursuant to
the Warrant Agreement and any related Warrant Certificates (as defined in the
Warrant Agreement) of one or more Call Holders to purchase from the Class B
Certificateholders on a Call Date some or all of the Class B Certificates for
the Class B Call Price.
"Class B Certificate Account": The Certificate Account established for
the Class B Certificateholders.
"Class B Certificates": The Certificates issued by the Trust with the
right to receive, on each Distribution Date, commencing on February 15, 2002 and
ending on the Final Scheduled Distribution Date, a distribution of 0.207% per
annum of the aggregate principal amount of the Underlying Securities and such
other distributions as described herein.
"Class B Payments" will have the meaning given to it in Section 3(d).
"Closing Date": December 20, 2001.
"Collection Period": (i) With respect to each August 15 Distribution
Date, the period beginning on the day after the February 15 Distribution Date of
the current year and ending on such August 15 Distribution Date, inclusive, and
(ii) with respect to each February 15 Distribution Date, the period beginning on
the day after the August 15 Distribution Date of the previous year and ending on
such February 15 Distribution Date, inclusive, except for the February 15, 2002
Distribution Date, as to which the Collection Period shall be the period
beginning on the Cut-off Date and ending on such February 15, 2002 Distribution
Date, inclusive; provided, however, that clauses (i) and (ii) shall be subject
to Section 9(c) hereof.
"Corporate Trust Office": The office of the Trustee located at 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Department; provided, however, that the office at which certificated
securities are delivered for registration of transfer, cancellation or exchange
shall be the office of the Trustee, located at 000 Xxxxxxxx, Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
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"Cut-off Date": December 20, 2001.
"Depository": The Depository Trust Company, its nominees and their
respective successors.
"Delivery Certificates" has the meaning given to it in Section 2.02 of
the Warrant Agreement.
"Distribution Date": August 15 and February 15 of each year (or if
such date is not a Business Day, the next succeeding Business Day), commencing
on February 15, 2002 and ending on the Final Scheduled Distribution Date.
"Distribution Election": (a) If there occurs an Event of Default (as
defined in the Underlying Securities Declaration) on the Underlying Securities
under Section [___] of the Underlying Securities Declaration, then the Trustee,
upon receiving notice of such event, shall immediately direct the Market Agent
to sell the Underlying Securities and a pro rata portion of the Related Assets
held by the Trust, in accordance with the Sale Procedures, and the Liquidation
Proceeds, if any, shall be divided between the Classes in accordance with the
Allocation Ratio and each Class' portion shall be deposited into such Class'
Certificate Account and distributed to such Class' Certificateholders pro rata
on the first Business Day following such deposit into such Certificate Account.
(b) If there occurs an acceleration of the date of maturity of the
Underlying Securities and the Underlying Securities are declared to be
immediately due and payable in accordance with the Underlying Securities
Declaration, and the Underlying Securities Issuer:
(i) makes full payment of all amounts when due, then all holders
of outstanding Call Rights will be deemed to have exercised their Call
Rights automatically, and the Trustee, upon receiving such payment
from the Underlying Securities Issuer, shall, on the first Business
Day following receipt of such payment, distribute from such payment
the following amounts:
(A) the Class A Call Price or the Class B Call Price per
Certificate, as applicable, shall be distributed from such
payment on account of each Certificate called from the holder
thereof (which holders, pursuant to Section 2.02(d) of the
Warrant Agreement, shall exclude Certificateholders to whom
Delivery Certificates (as defined in the Warrant Agreement) were
delivered in accordance with Section 2.02(d) of the Warrant
Agreement),
(B) the Class A Call Price or the Class B Call Price per
Certificate, as applicable, shall be distributed from such
payment on account of each Certificate held by Certificateholders
to whom Delivery Certificates were delivered in accordance with
Section 2.02(d) of the Warrant Agreement, and
(C) any amounts remaining shall be divided between the
Classes in accordance with the Allocation Ratio and each Class'
portion shall be distributed pro rata among the Call Holders that
are deemed to have exercised their Call Rights automatically
pursuant to this clause with respect to that Class and the
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Certificateholders of that Class to whom Delivery Certificates
were delivered in accordance with Section 2.02(d) of the Warrant
Agreement;
(ii) makes a partial payment of all amounts when due, then the
Trustee, upon receiving such payment, shall:
(A) immediately divide such payment between the Classes in
accordance with the Allocation Ratio and deposit each Class'
portion of such payment into that Class' Certificate Account for
distribution to such Class' Certificateholders pro rata on the
first Business Day following such deposit into such Certificate
Account; provided, that if the Underlying Securities Issuer
places any condition, restriction or obligation on the acceptance
of such partial payment including but not limited to a waiver of
any right granted to a holder of the Underlying Securities, such
partial payment will be rejected by the Trustee and no deposit
will be made into the Certificate Account,
(B) divide a principal amount of the Underlying Securities
equal to the aggregate stated amount of the outstanding Class A
Certificates between the Classes in accordance with the
Allocation Ratio and distribute each Class' portion of the
Underlying Securities to such Class' Certificateholders pro rata
and divide a pro rata portion of the Related Assets between the
Classes in accordance with the Allocation Ratio and distribute
each Class' portion of such Related Assets to such Class'
Certificateholders pro rata to each Certificateholder's last
address as it appears in the Certificate Register within three
Business Days of receiving said notice, and
(C) if any Underlying Securities are not distributed
pursuant to clause (B), immediately direct the Market Agent to
sell all Underlying Securities not so distributed and a pro rata
portion of the Related Assets held by the Trust, in accordance
with the Sale Procedures, and the Liquidation Proceeds, if any,
shall be divided between the Classes in accordance with the
Allocation Ratio and each Class' portion shall be deposited into
such Class' Certificate Account and distributed to such Class'
Certificateholders pro rata on the first Business Day following
such deposit into such Certificate Account; or
(iii) fails to make such payment when due, then the Trustee, upon
receiving notice of such failure to make payment, shall:
(A) divide a principal amount of Underlying Securities equal
to the aggregate stated amount of the outstanding Class A
Certificates and a pro rata portion of the Related Assets in
accordance with the Allocation Ratio between the Classes in
accordance with the Allocation Ratio and distribute each Class'
portion to such Class' Certificateholders pro rata to each
Certificateholder's last address as it appears in the Certificate
Register within three Business Days of receiving said notice, and
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(B) if any Underlying Securities are not distributed
pursuant to clause (A), immediately direct the Market Agent to
sell all Underlying Securities not so distributed and a pro rata
portion of the Related Assets held by the Trust, in accordance
with the Sale Procedures, and the Liquidation Proceeds, if any,
shall be shall be divided between the Classes in accordance with
the Allocation Ratio and each Class' portion shall be deposited
into such Class' Certificate Account and distributed to such
Class' Certificateholders pro rata on the first Business Day
following such deposit into such Certificate Account.
(c) If the Underlying Securities Issuer of any Concentrated Underlying
Securities ceases to be a reporting company under the Exchange Act, and no
parent guarantor of such Underlying Securities Issuer, if any, includes in its
Exchange Act reports condensed consolidating financial statements setting forth
financial information for the Underlying Securities Issuer, then the Trustee,
upon receiving notice of such event shall (A) divide a principal amount of
Underlying Securities equal to the aggregate stated amount of the outstanding
Class A Certificates and a pro rata portion of the Related Assets in accordance
with the Allocation Ratio between the Classes in accordance with the Allocation
Ratio and distribute each Class' portion to such Class' Certificateholders pro
rata to each Certificateholder's last address as it appears in the Certificate
Register within three Business Days of receiving said notice, and (B) if any
Underlying Securities are not distributed pursuant to clause (A), immediately
direct the Market Agent to sell all Underlying Securities not so distributed and
a pro rata portion of the Related Assets held by the Trust, in accordance with
the Sale Procedures, and the Liquidation Proceeds, if any, shall be shall be
divided between the Classes in accordance with the Allocation Ratio and each
Class' portion shall be deposited into such Class' Certificate Account and
distributed to such Class' Certificateholders pro rata on the first Business Day
following such deposit into such Certificate Account.
(d) Upon receiving (A) notice of an acceleration of the date of
maturity of the Underlying Securities and the Underlying Securities Issuer's
partial payment of all amounts when due as described in subsection (ii) of
clause (b) above, or (B) notice of the events set forth in clause (c) above, the
Trustee shall, 10 days prior to the exercise of any remedy, provide written
notice of the termination of the Trust to the Call Holders. Notwithstanding
subsection (ii) of clause (b) and clause (c), the Trustee shall not distribute
any such partial payment, Underlying Securities or Related Assets to any
Certificateholders before the earlier of (i) the expiration of the 10-day notice
of termination period, and (ii) receipt by the Trust of notice of all Call
Holders' election to exercise their Class A Call Right or Class B Call Right, as
applicable. If less than all outstanding Class A Call Rights or Class B Call
Rights are exercised, upon receiving such notice of election, the Trustee shall
select by lot (or by such other reasonable procedure as may be established by
the Trustee) for purchase by such exercising Call Holders in the case of Class A
Certificates the stated amount of Class A Certificates equal to the stated
amount of Class A Call Rights being exercised multiplied by the aggregate stated
amount of the outstanding Class A Certificates not subject to Delivery
Certificates divided by the aggregate stated amount of the outstanding Class A
Call Rights or in the case of Class B Certificates, the aggregate principal
notional amount of Class B Certificates equal to the aggregate principal
notional amount of Class B Call Rights being exercised multiplied by the
aggregate principal notional amount of the outstanding Class B Certificates not
subject to Delivery Certificates divided by the aggregate principal notional
amount of the outstanding Class B Call Rights. The
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Certificateholders of the Trust Certificates to be purchased shall not be
entitled to any right other than the right to receive payment of an amount equal
to the applicable Call Price on the date the applicable Call Rights are
exercised, and such Trust Certificates shall be deemed to have been
automatically surrendered by the Certificateholders to the Trust for further
transfer to the exercising Call Holders. The share of the Underlying Securities
and Related Assets to be distributed with respect to such called Trust
Certificates shall be distributed to the exercising Call Holders. In the case of
a sale by the Market Agent of Underlying Securities and Related Assets pursuant
to clause (a) above, the Trustee shall deliver such Underlying Securities and
Related Assets to the purchaser of such Underlying Securities and Related Assets
only against payment in same day funds and the Trustee shall deposit the same
into the Certificate Account.
"Eligible Investments": As defined in the Standard Terms; provided,
however, that (i) the minimum required rating for long-term instruments will be
equal to the lower of the rating of the Underlying Securities or the Trust
Certificates, and (ii) the rating of any short-term instruments will be A-1+ by
S&P and P1 by Xxxxx'x; and provided, further, that any such investment matures
no later than the Business Day prior to the next succeeding Distribution Date.
"Escrow Agent": As will be set forth in the Escrow Agreement.
"Escrow Agreement": The escrow agreement to be entered into on the
Call Date among a given Call Holder, the Trustee and the Escrow Agent pursuant
to Section 14(c)(iii)(2) hereof.
"Event of Default": (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 Underlying Securities Declaration. For a summary of certain events of
default in the Underlying Securities Declaration, please refer to the Prospectus
Supplement.
"Final Scheduled Distribution Date": February 3, 2027 (or if such date
is not a Business Day, the next succeeding Business Day).
"Fixed Pass-Through Rate": With respect to the Class A Certificates,
8.00% per annum and with respect to the Class B Certificates, 0.207% per annum.
"Optional Exchange Date": Any Distribution Date or such date as is
designated pursuant to Section 7(b) hereof.
"Ordinary Expenses": The compensation due to the Trustee for Ordinary
Expenses as defined in the Standard Terms, which, with respect to Ordinary
Expenses other than those referred to in clause (iii) of such definition and
other than the costs of converting to
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XXXXX format the periodic reports required for the Trust under the Exchange Act,
shall be fixed at $2,000 per annum (payable in semi-annual installments of
$1,000).
"Pass-Through Rate": For each Class of Certificates, the associated
Fixed Pass-Through Rate.
"Prepaid Ordinary Expenses": Zero (0).
"Prospectus Supplements": The Prospectus Supplement dated December 17,
2001 relating to the Class A Certificates and the Prospectus Supplement dated
December 17, 2001 relating to the Class B Certificates .
"Rating Agency": Moody's and S&P.
"Record Date": The Business Day immediately preceding each
Distribution Date.
"Series": PREFERREDPLUS Trust Series ALL-1.
"Underlying Securities": The $[____________] aggregate principal
amount of 8.207% Series B Capital Securities due February 3, 2027 issued by the
Underlying Securities Issuer and guaranteed by Allmerica Financial Corporation,
as described in Schedule I hereto.
"Underlying Securities Declaration": As set forth in Schedule I.
"Underlying Securities Issuer": AFC Capital Trust I, a Delaware
business trust.
"Warrant Agreement": The Warrant Agreement, dated as of December 20,
2001, by and between the Trust and the Warrant Agent (as defined in the Warrant
Agreement).
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administration Account"
"Administrative Agent"
"Administration Agreement"
"Administrative Agent Termination Event"
"Advance"
"Calculation Agent"
"Eligible Expense"
"Exchange Rate Agent"
"Floating Pass-Through Rate"
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"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Notional Amount"
"Reserve Account"
"Requisite Reserve Amount"
"Retained Interest"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. (a) The Trust
created hereby shall be known as the "PREFERREDPLUS Trust Series ALL-1". The
Class A Certificates and Class B Certificates evidencing certain undivided
ownership interests therein shall be known as the "PREFERREDPLUS Class A 8.00%
Trust Certificates Series ALL-1" and the "PREFERREDPLUS Class B 0.207% Trust
Certificates Series ALL-1," respectively.
(b) The Class A Certificates and Class B Certificates shall be held
through the Depository in book-entry form and shall be substantially in the form
attached hereto as Exhibits B and C, respectively. The Class A Certificates
shall be issued in authorized denominations of $25 and integral multiples
thereof and the Class B Certificates shall be issued with a notional principal
amount of $25 and integral multiples thereof. Except as provided in the Standard
Terms, the Trust shall not issue additional Certificates or incur any
indebtedness; provided, however, from time to time, upon obtaining prior written
confirmation by each Rating Agency that such action will not result in a
downgrading or withdrawal of its rating of the Certificates, the Depositor may,
without the consent of the Certificateholders, increase the amount of the
Underlying Securities in the Trust and the Trust may issue a corresponding
amount of additional Certificates in accordance with Section 5.12(a) of the
Standard Terms except that clauses (v), (vi) and (vii) of Section 5.12(a) shall
not apply to this Series.
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(c) The Class A Certificates will be entitled to receive (i) on each
Distribution Date, commencing on February 15, 2002 and ending on the Final
Scheduled Distribution Date, or such earlier date if the Underlying Securities
are redeemed prior to the Final Scheduled Distribution Date, distributions at a
rate of 8.00% per annum on the stated amount of the Class A Certificates and
(ii) on the Final Scheduled Distribution Date, a distribution of the aggregate
principal amount of the Underlying Securities.
(d) On each Distribution Date, the Class B Certificates will be
entitled to receive a distribution of 0.207% per annum multiplied by the
notional principal amount of the Class B Certificates (the "Class B Payments").
(e) Any reference to the principal amount of the Certificates shall be
construed as a reference to the stated amount of the Class A Certificates and/or
the notional principal amount of the Class B Certificates, unless otherwise
indicated.
Section 4. Satisfaction of Conditions to Initial Execution and
Delivery of Trust Certificates. The Trustee hereby acknowledges receipt, on or
prior to the Closing Date, of:
(i) the Underlying Securities set forth on Schedule I hereto; and
(ii) all documents set forth in Section 5.12 of the Standard Terms
except that clauses (v), (vi) and (vii) of Section 5.12(a) shall not apply
to this Series.
Section 5. Distributions. (a) On each Distribution Date, the Trustee
shall apply solely to the extent of Available Funds in the Certificate Account
as follows:
(i) first, to the Trustee, reimbursement for any approved
Extraordinary Trust Expenses incurred by the Trustee in accordance with
Section 6(b) hereof and approved by not less than 100% of the
Certificateholders;
(ii) second, pro rata to the holders of the Class A Certificates and
Class B Certificates, distributions accrued during the related Collection
Period at the rate of 8.00% per annum on the stated amount of the Class A
Certificates to holders of the Class A Certificates on such Distribution
Date and 0.207% per annum multiplied by the notional principal amount of
Class B Certificates to holders of the Class B Certificates on such
Distribution Date, commencing on February 15, 2002 and ending on the Final
Scheduled Distribution Date;
(iii) third, divided between the Classes in accordance with the
Allocation Ratio and each Class' portion distributed to the holders of each
Class pro rata, if available, any additional payments owed and paid by the
Underlying Securities Issuer as a result of a delay in the receipt by the
Trustee of any payment on the Underlying Securities;
(iv) fourth, pro rata to the Class A Certificateholders, on the Final
Scheduled Distribution Date only, a distribution of the aggregate principal
amount of the Underlying Securities;
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(v) fifth, to the extent there remain Available Funds in the
Certificate Account, to any creditors of the Trust in satisfaction of
liabilities thereto; and
(vi) sixth, to the extent there remain Available Funds in the
Certificate Account, to Xxxxxxx Xxxxx Capital Services, Inc. and if no
Available Funds remain in the Certificate Account then no distribution will
be made pursuant to this Section 5(a)(vi).
Subject to Section 9(c) hereof, to the extent Available Funds are insufficient
to make any required distributions due to the Certificates on any Distribution
Date, any shortfall will be carried over and will be distributed on the next
Distribution Date on which sufficient funds are available on the Available Funds
to pay such shortfall. Neither Xxxxxxx Xxxxx & Co. nor any of its Affiliates
will have any claim against the Trust pursuant to Section 5(a)(vi) if the Trust
fails to make a distribution on a Distribution Date to such person because no
Available Funds remain in the Certificate Account on such Distribution Date.
(b) On an Optional Exchange Date, the Trustee shall distribute to
Xxxxxxx Xxxxx & Co. or any of its Affiliates, other than the Depositor, or any
other Person exercising an optional exchange pursuant to Section 7 hereof, as
the case may be, Underlying Securities in accordance with Section 7 hereof.
Section 6. Trustee's Fees; Escrow Agent's Fees. (a) Payment to the
Trustee of Ordinary Expenses shall be as set forth in a separate agreement
between the Trustee and the Depositor. The Trustee agrees that in the event
Ordinary Expenses are not paid in accordance with such agreement, it shall (i)
not have any claim or recourse against the Trust or the property of the Trust
with respect thereto and (ii) continue to perform all of its services as set
forth herein unless it elects to resign as Trustee in accordance with Section
7.08 of the Standard Terms.
(b) Extraordinary Trust Expenses shall not be paid out of the
Deposited Assets unless (i) the Trustee is satisfied that it will have adequate
security or indemnity in respect of such costs, expenses and liabilities, and
(ii) all the Certificateholders of Certificates then outstanding have voted to
require the Trustee to incur such Extraordinary Trust Expenses. If Extraordinary
Trust Expenses are not approved unanimously as set forth in clause (ii), such
Extraordinary Trust 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. In addition, if the
conditions in (i) and (ii) are not both satisfied, the Trustee shall not be
obligated to incur any Extraordinary Trust Expense.
(c) In the event that one or more Call Holders is required to deposit
the applicable Call Price with the Escrow Agent on the Exercise Date pursuant to
Section 14(c)(iii)(2) hereof, the Depositor and the Escrow Agent shall enter
into an agreement reasonably acceptable to both parties thereto whereby the
Depositor shall pay to the Escrow Agent a fee in consideration for its services
under the Escrow Agreement or Escrow Agreements, as applicable.
Section 7. Optional Exchange. (a) Xxxxxxx Xxxxx & Co. or any of its
Affiliates (other than the Depositor), if it holds Certificates, or any other
Person (other than the Depositor) holding Class A Certificates with an aggregate
stated amount of $5 million or more and an equal
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aggregate notional principal amount of Class B Certificates, all acquired
pursuant to the exercise of a Class A Call Right or Class B Call Right held by
it, may notify the Trustee, not less than 30 days but not more than 60 days
prior to any Optional Exchange Date, that:
(i) such Person intends to tender an Authorized Denomination of Class
A Certificates and an equal number of Class B Certificates that it holds to
the Trustee on such Optional Exchange Date in exchange for a proportional
amount of Underlying Securities;
(ii) such exchange will not cause the Trust or Depositor to fail to
satisfy the applicable requirements for exemption under Rule 3a-7 under the
Investment Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of the Trust
as a "grantor trust" under the Code,
(iv) in the case of an exchange of less than all outstanding
Certificates, such exchange will not cause a failure to satisfy the minimum
requirements for the Class A Certificates to remain listed on the New York
Stock Exchange, unless the Person tendering such Certificates will hold all
remaining outstanding Certificates upon completion of the exchange for such
Certificates pursuant to this Section 7;
(v) such exchange will not be made with respect to Certificates
subject to outstanding Call Rights held by any Person other than the Person
exercising such exchange; and
(vi) in the case of an exchange by a person other xxxx Xxxxxxx Xxxxx &
Co. or any of its Affiliates (other than the Depositor), such exchange will
be made with respect to an aggregate stated amount of Class A Certificates
equal to the aggregate stated amount of Class A Certificates acquired by
such Person pursuant to the exercise of the applicable Call Rights held by
it.
Upon tender of such Class A Certificates and Class B Certificates on such
Optional Exchange Date, the Trustee will deliver to the Person tendering such
Certificates an amount of Underlying Securities having a principal amount equal
to the aggregate principal amount of Underlying Securities then held by the
Trust times the aggregate stated amount of Class A Certificates being tendered
divided by the aggregate stated amount of Class A Certificates then outstanding.
(b) When a tender offer for the Underlying Securities is pending,
Xxxxxxx Xxxxx & Co. or any of its Affiliates (other than the Depositor), if it
holds Certificates, or any other Person (other than the Depositor, or an
Affiliate of the Person making such tender offer) holding Class A Certificates
with an aggregate stated amount of $5 million or more and an equal aggregate
notional principal amount of Class B Certificates, all acquired pursuant to the
exercise of the applicable Call Rights held by it, may notify the Trustee, not
less than 5 days but not more than 60 days prior to any such Optional Exchange
Date as they may designate, that:
(i) such Person intends to tender Authorized Denominations of Class A
Certificates with an aggregate stated amount of $5 million or more and a
corresponding
13
number of Class B Certificates that it holds to the Trustee on such
Optional Exchange Date in exchange for a proportional amount of Underlying
Securities;
(ii) such exchange will not cause the Trust or Depositor to fail to
satisfy the applicable requirements for exemption under Rule 3a-7 under the
Investment Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of the Trust
as a "grantor trust" under the Code,
(iv) in the case of an exchange of less than all outstanding
Certificates, such exchange will not cause a failure to satisfy the minimum
requirements for the Certificates to remain listed on the New York Stock
Exchange, unless the Person tendering such Certificates will hold all
remaining outstanding Certificates upon completion of the exchange for such
Certificates pursuant to this Section 7;
(v) such exchange will not be made with respect to Certificates
subject to outstanding Call Rights held by any Person other than the Person
exercising such exchange; and
(vi) in the case of an exchange by a person other xxxx Xxxxxxx Xxxxx &
Co. or any of its Affiliates (other than the Depositor), such exchange will
be made with respect to an aggregate stated amount of Class A Certificates
equal to the aggregate stated amount of Class A Certificates acquired by
such Person pursuant to the exercise of Call Rights held by it.
Upon tender of such Class A Certificates and Class B Certificates on such
Optional Exchange Date, the Trustee will deliver to the Person tendering such
Certificates an amount of Underlying Securities having a principal amount equal
to the aggregate principal amount of Underlying Securities then held by the
Trust times the aggregate stated amount of Class A Certificates being tendered
divided by the aggregate stated amount of Class A Certificates then outstanding.
(c) The requirements set forth in paragraphs (a)(ii), (a)(v) and
(a)(vi) of Section 4.07 of the Standard Terms do not apply to an Optional
Exchange pursuant to this Section 7.
(d) Any costs associated with the exercise of the rights granted under
paragraphs (a) and (b) of this Section 7 will be borne by the Person exercising
such rights and not by the Trust.
(e) In no event can an Optional Exchange be made unless an equal
number of Class A and Class B Certificates are tendered for exchange by each
Holder exercising this Optional Exchange right.
Section 8. Events of Default. Within 30 days of its receipt of notice
of the occurrence of an Event of Default, the Trustee will give notice to the
Certificateholders, transmitted by mail, of all such uncured or unwaived Events
of Default actually known to it. However, unless there is an Event of Default
relating to the payment of principal of or interest on
14
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 Certificates.
(b) The Certificateholders shall not be entitled to terminate the
Trust or cause the sale or other disposition of the Underlying Securities;
provided, however, that Certificateholders holding all, but not less than all,
of the outstanding Certificates may exercise their rights under Section 13(b)
with respect to all such Certificates.
(c) 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 Certificateholders and Class B
Certificateholders, proportionately to the ratio of their respective
entitlements to interest payments.
(d) The outstanding principal balance of the Class A Certificates and
the aggregate notional principal amount of the Class B Certificates shall not be
reduced by the amount of any Realized Loss.
(e) 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 Deposited Assets and the issuance of the Certificates and Call Rights, 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 Call Rights,
or otherwise incur, assume or guarantee any indebtedness for money borrowed.
(f) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to, any another entity or permit any other entity
to consolidate, amalgamate, merge with or into, or replace the Trust.
(g) Except as expressly provided in the Trust Agreement, the Trust may
not sell the Underlying Securities.
(h) If the Trustee resigns or is removed as Trustee in accordance with
Section 7.08 of the Trust Agreement, in addition to providing the Depositor with
written notice, the Trustee shall also provide the Rating Agencies with written
notice.
(i) Xxxxxxx Xxxxx & Co. shall act as the Market Agent and shall serve
in such capacity in accordance with the terms of the Market Agent Agreement
attached hereto as Exhibit C.
15
(j) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee may be removed upon 60 days prior written notice delivered by
Certificateholders holding Certificates that represent the Required
Percentage-Removal, and such removal shall take effect upon the appointment of a
successor Trustee and its acceptance of such appointment as provided in the
Trust Agreement.
Section 10. Notices. (a) 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:
Xxxxxxx Xxxxx Depositor, Inc.
c/x Xxxxxxx Xxxxx & Co.
World Financial Center
New York, NY 10281
Attention: Xxxxx X. Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, to:
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
-PREFERREDPLUS Trust Series ALL-1
Telephone: (000) 000-0000
Xxxxxxxxx: (000) 000-0000
If to the Securities Intermediary, to:
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
- PREFERREDPLUS Trust Series ALL-1
Telephone: (000) 000-0000
Xxxxxxxxx: (000) 000-0000
If to the Warrant Agent, to
16
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
-PREFERREDPLUS Trust Series ALL-1
Telephone: (000) 000-0000
Xxxxxxxxx: (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
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Copies of any tender offer materials and all directions, demands
and notices required to be given to the Certificateholders hereunder or under
the Standard Terms will be given to the Warrant Agent by facsimile transmission
and by mail.
17
Section 11. Governing Law. This Supplement and the transactions
described herein shall be construed in accordance with and governed by the law
of the State of New York.
Section 12. 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.
Section 13. Termination of the Trust. (a) The Trust shall terminate
upon the earlier of (i) the payment in full at maturity or sale by the Trust
after a payment default on the Underlying Securities and the distribution in
full of all amounts due to the Certificateholders, (ii) the distribution to the
Certificateholders of all Underlying Securities in accordance with the
Distribution Election, (iii) the exchange of all outstanding Certificates for
Underlying Securities pursuant to one or more Optional Exchanges, (iv) the Final
Scheduled Distribution Date and (v) the holders of all, but not less than all,
of the Certificates exercising their election in Section 13(b) below.
(b) Certificateholders who hold all, but not less than all, of the
outstanding Certificates may, upon prior written notice to the Rating Agencies,
elect to terminate the Trust at any time; provided that (i) the exercise of such
termination right would not cause the Trust or the Depositor to fail to satisfy
the applicable requirements for exemption under Rule 3a-7 under the Investment
Company Act of 1940, as amended and (ii) if and for so long as the call warrants
remain outstanding, all of the Call Holders have consented to such termination.
(c) To the extent that the provisions of this Section 13 conflict with
Section 10.01 of the Standard Terms, the latter shall control.
Section 14. Sale of Underlying Securities; Call Right
(a) In the case of Extraordinary Trust Expenses approved by 100% of
the Certificateholders of each Class, pursuant to Section 6(b) hereof, the
Trustee may sell all or a portion of the Underlying Securities to pay such
Extraordinary Trust Expenses.
(b) As a holder of the Underlying Securities, the Trust may receive
redemption proceeds upon the redemption of the Underlying Securities by the
Underlying Securities Issuer pursuant to the Underlying Securities Declaration.
Upon the redemption of the Underlying Securities in whole, but not in part, (i)
on the stated maturity date of such Underlying Securities or (ii) upon the
occurrence of a Special Event (as defined below), upon at least 30 days, but not
more than 60 days, prior notice pursuant to the Underlying Securities
Declaration, the redemption proceeds will be distributed pro rata to the holders
of the Underlying Securities, including the Trust. Upon receiving such
redemption proceeds, the Trust shall distribute the proceeds (A) first, pro rata
to the Class A Certificateholders until each shall have received the stated
amount of each Class A Certificate it holds plus accrued and unpaid
distributions on the Class A Certificates to the Redemption Date; (B) second,
pro rata to the Class B Certificateholders until each shall have received the
sum of the present values (discounted at the rate of 8.207% per annum) of the
Class B Payments on or after the Redemption Date and (C) third, any remaining
redemption proceeds will be divided between the classes of trust certificates in
accordance with the Allocation Ratio, and within each class the redemption
proceeds will be
18
distributed pro rata to the Certificateholders of the Class A or Class B
Certificates upon the date such proceeds are received in immediately available
funds by the Trust if such proceeds are received prior to 1:00 p.m. local time
at the office of the Trustee and otherwise on the next Business Day.
"Special Event" means a Tax Event or an Investment Company Event (as
those terms are defined in the Underlying Securities Declaration), as the case
may be.
(c) The Call Terms are as follows:
(i) The initial holder of the Call Rights is an affiliate of Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and such
affiliate may transfer the Call Rights, in whole or in part, to one or more
third parties in privately negotiated transactions;
(ii) A Call Holder that has met the exercise requirements set forth in
paragraph (c)(iii) of this Section 14 may, on the Call Date, exercise its
option to purchase, in whole or in part, a principal or notional amount of
Class A or Class B Certificates, as applicable, proportionate to such Call
Holder's exercised Call Warrants, in Authorized Denominations of the Class
A or Class B Certificates at the Class A Call Price or Class B Call Price,
as applicable;
(iii) In order to exercise its Call Right on a Call Date, a Call
Holder must, not less than 30 days (or not less than three days in the case
of an announcement of any redemption of the Underlying Securities or other
unscheduled payment of the Underlying Securities or after receipt of notice
of termination of the Trust or not less than five Business Days prior to
the expiration of a tender offer for the Underlying Securities) but not
more than 60 days prior to such Call Date:
(1) notify the Trustee in writing of its intention to exercise
such Call Right (which notice is irrevocable, subject to Section
2.02(i)(v) of the Warrant Agreement) and whether such exercise is in
connection with a tender offer for the Underlying Securities. In the
event that such notice is provided in connection with a tender offer
for the Underlying Securities, if the exercising Holder did not
receive from the Warrant Agent notice of a Tender Offer, then such
Holder shall also provide the Warrant Agent with any information the
Holder may have from a third-party source indicating that such Tender
Offer is pending.
(2) deposit the applicable Call Price with the Escrow Agent (the
"Escrow Deposit") to be held in escrow pursuant to an Escrow Agreement
reasonably satisfactory to the Trustee and substantially in the form
attached hereto as Exhibit D (to be entered into immediately preceding
delivery of the applicable Call Price by such Call Holder to the
Escrow Agent) until such Call Price is paid by the Trustee to the
Certificateholders in accordance with paragraph (d) of this Section 14
or returned to the exercising Holders pursuant to subsection (i) of
Section 2.02 of the Warrant Agreement, and
19
(3) provide the Trustee with any other documents customary for a
transaction of this nature, including a certificate of the Call Holder
certifying the solvency of such Call Holder on such date; provided
that the Call Holder need not provide any such solvency certificate if
the rating of the senior, unsecured long-term debt of the Call Holder,
or the Call Holder's credit support provider, if applicable, by
Xxxxx'x and S&P is in one of the investment grade categories of
Xxxxx'x and S&P, respectively, on such date.
The provision of this Section 14(c)(iii)(1) through (3) shall not apply if
Warrants are being exercised upon an acceleration of the Underlying Securities
and payment in full by the Underlying Securities Issuer of all amounts due upon
such acceleration.
(d) In connection with any exercise of the Call Rights to purchase
Class A Certificates, the Trustee shall select by lot (or by such other
reasonable procedure as may be established by the Trustee) a stated amount of
the outstanding Class A Certificates to be surrendered by the Class A
Certificateholders thereof to the Trustee upon any such exercise, deliver such
Class A Certificates to the exercising Call Holder and the proceeds of the Class
A Call Price shall be distributed pro rata among such Class A Certificateholders
on the Call Date in accordance with the provisions of the Warrant Agreement. In
connection with any exercise of the Call Rights to purchase Class B
Certificates, the Trustee shall select by lot (or by such other reasonable
procedure as may be established by the Trustee) an aggregate notional principal
amount of the outstanding Class B Certificates to be surrendered by the Class B
Certificateholders thereof to the Trustee upon any such exercise, deliver such
Class B Certificates to the exercising Call Holder and the proceeds of the Class
B Call Price shall be distributed pro rata among such Certificateholders on the
Call Date in accordance with the provisions of the Warrant Agreement.
(e) The rights of the Certificateholders under the Trust Agreement and
the Certificates are limited by the terms, provisions and conditions of the
Trust Agreement and the Warrant Agreement with respect to the exercise of the
applicable Call Rights by the Call Holder. The Certificateholders, by their
acceptance of Certificates, covenant and agree to tender any and all
Certificates to the Warrant Agent upon the Call Holder's exercise of Call Rights
and deposit of the applicable Call Price with the Escrow Agent for such
Certificates in accordance with the applicable procedures in the Warrant
Agreement.
(f) Upon receipt of a notice of a tender offer for the Underlying
Securities, the Trustee shall deliver notice of the tender offer to the Warrant
Agent and holders of Delivery Certificates (as defined in Section 2.02(d) of the
Warrant Agreement) within two Business Days after receipt of notice from the
Tender Offeror (as defined in the Warrant Agreement). Within two Business Days
of the expiration of the period for validly delivering tender offer exercise
notices pursuant to Section 2.02(i)(i) of the Warrant Agreement, the Trustee
shall (A) select by lot (or by such other reasonable procedure as may be
established by the Trustee), in the case of Class A Certificates, a stated
amount of Class A Certificates equal to the aggregate stated amount of Class A
Certificates not subject to Delivery Certificates then outstanding multiplied by
the aggregate principal amount of Class A Call Rights being exercised divided by
the aggregate principal amount of the outstanding Class A Call Rights and, in
the case of Class B Certificates an aggregate principal notional amount of Class
B Certificates equal to the aggregate principal
20
notional amount of Class B Certificates not subject to Delivery Certificates
then outstanding multiplied by the aggregate principal notional amount of Class
B Call Rights being exercised divided by the aggregate principal notional amount
of the outstanding Class B Call Rights and (B) notify the Certificateholders of
the selected Certificates that, subject to Section 2.02(i) of the Warrant
Agreement, such Certificates will be purchased on the Call Date. Upon the
Trustee's receipt of the tender offer proceeds, the applicable Call Price will
be distributed pursuant to Section 2.02(e) and Section 2.02(i)(vi) of the
Warrant Agreement pro rata to the Certificateholders whose Certificates have
been purchased and the tender offer proceeds will be distributed by the Trustee
pro rata to the exercising Call Holders pursuant to Section 2.02(i) of the
Warrant Agreement. Upon distribution of the applicable Call Price and tender
offer proceeds, the Trust Certificates called pursuant to the exercise of Call
Rights shall be deemed to have been surrendered for cancellation by the Trustee
and the aggregate stated amount of the outstanding Trust Certificates shall be
reduced by the aggregate stated amount of such Trust Certificates; provided that
the right of a Certificateholder to receive the Call Price will not be affected
by any such deemed surrender.
Section 15. Amendments. Notwithstanding anything in the Trust
Agreement to the contrary, in addition to the other restrictions on modification
and amendment contained herein, the Trustee shall not enter into any amendment
or modification of the Trust Agreement that would adversely affect in any
material respect the interests of the Certificateholders or the Call Holders
without the consent of 100% of such Certificateholders or Call Holders, as the
case may be; provided, however, that no such amendment or modification will be
permitted if the Trustee has been advised by the Depositor that such amendment
or modification would alter the status of the Trust as a "grantor trust" for
federal income tax purposes. Further, no amendment shall be permitted pursuant
to paragraphs (vi), (vii) and (x) of Section 11.01(a) of the Standard Terms
without prior written confirmation by each Rating Agency that such amendment
will not result in a downgrading or withdrawal of its rating of the
Certificates. The Trustee may consult with counsel and shall be entitled to rely
upon an Opinion of Counsel for purposes of determining compliance with the
provisions of this Section 15.
Section 16. Voting of Underlying Securities, Modification of
Indenture. The Trustee, as holder of the Underlying Securities, has the right to
vote and give consents and waivers in respect of the Underlying Securities as
permitted by the Depository and except as otherwise limited by the Trust
Agreement. In the event that the Trustee receives a request from the Depository,
the Underlying Securities trustee or the Underlying Securities Issuer for its
consent to any amendment, modification or waiver of the Underlying Securities,
the Underlying Securities Declaration or any other document thereunder or
relating thereto, or receives any other solicitation for any action with respect
to the Underlying Securities, the Trustee shall mail a notice of such proposed
amendment, modification, waiver or solicitation to each Certificateholder of
record as of such date. The Trustee shall request instructions from the
Certificateholders as to whether or not to consent to or vote to accept such
amendment, modification, waiver or solicitation. The Trustee shall consent or
vote, or refrain from consenting or voting, in the same proportion (based on the
relative outstanding principal balances of the Certificates) as the Certificates
of the Trust were actually voted or not voted by the Certificateholders thereof
as of a date determined by the Trustee prior to the date on which such consent
or vote is required after weighing the votes of the Class A Certificateholders
and the Class B Certificateholders in accordance with the Allocation Ratio;
provided, however, that,
21
notwithstanding anything in the Trust Agreement to the contrary, the Trustee
shall at no time vote on or consent to any matter (i) unless such vote or
consent would not (based on an Opinion of Counsel) alter the status of the Trust
as a "grantor trust" for federal income tax purposes or result in the imposition
of tax upon the Certificateholders, or (ii) that 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 that with the
passage of time would become an event of default under the Underlying Securities
and with the consent of 100% of the Certificateholders, or (iii) that 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 Underlying
Securities Declaration and only with the consent of 100% of the
Certificateholders and 100% of the Call Holders. The Trustee shall have no
liability for any failure to act resulting from Certificateholders' or Call
Holders' late return of, or failure to return, directions requested by the
Trustee from the Certificateholders and Call Holders.
If 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 Certificateholders, the Call Holders and the Rating
Agencies of such offer promptly. The Trustee must reject any such offer unless
the Trustee is directed by the affirmative vote of 100% of the
Certificateholders and 100% of the Call Holders to accept such offer, the
Trustee has received the tax opinion described above and if the Trustee is so
directed, the Trustee shall promptly notify the Rating Agencies of such
direction accompanied by evidence of the affirmative vote of such
Certificateholders and Call Holders.
If an event of default under the Underlying Securities Declaration
occurs and is continuing, and if directed by 100% of the 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.
22
Section 17. Call Right Documentation. Simultaneously with the
execution hereof, the Depositor hereby directs the Trustee, in the name of and
on behalf of the Trust, to enter into a Warrant Agreement and any related
Warrant Certificates (as defined in the Warrant Agreement) evidencing the Call
Rights and to make representations contained therein on behalf of the Trust. At
the direction of the Depositor, the Trustee shall execute such further documents
as may be required to evidence any transfer of any or all of the rights,
interests or obligations under the Warrant Agreement and any related Warrant
Certificates.
Section 18. Third Party Beneficiary. The Escrow Agent and each Call
Holder shall be third party beneficiaries of this Trust Agreement.
Section 19. Nonpetition Covenant. Solely with respect to the Trust and
the Series and for no other purpose, Section 11.07 of the Standard terms is
hereby deleted and replaced with the following:
"Section 11.07. Nonpetition Covenant. Notwithstanding any prior
termination of this Trust Agreement, each of the Trustee (including any
Administrative Agent, Authenticating Agent and Paying Agent) and the Depositor
agrees that it shall not, until the date which is one year and one day after the
termination of the PREFERREDPLUS Trust Series ALL-1, acquiesce, petition or
otherwise invoke or cause the Trust to invoke the process of the United States,
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 under a Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of such Trust or all or any part of the
property or assets of such Trust or ordering the winding up or liquidation of
the affairs of such Trust."
Section 20. Amendments to Standard Terms. Solely with respect to the
Trust and the Series and for no other purpose, the Standard Terms are hereby
amended as follows:
(a) Clause (iii) of Subsection (c) of Section 2.01 of the Standard
Terms shall be deleted and replaced with the following:
"at the time of delivery of the Underlying Securities, 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 (other than the lien created by this Trust Agreement); and"
(b) Subsection (e) of Section 2.01 of the Standard Terms shall be
deleted and replaced with the following:
"Any Trust created hereunder shall not engage in any business or
activities other than in connection with, or relating to, the holding,
protecting and preserving of the Deposited Assets and the issuance of the
Certificates and, if applicable, Call Rights, and other than those required
or authorized by this Trust Agreement or incidental to and necessary to
accomplish such activities. Any Trust created hereunder shall not issue or
23
sell any certificates or other obligations other than the Certificates or,
if applicable, Call Rights or otherwise incur, assume or guarantee any
indebtedness for money borrowed."
(c) Clause (v) of Subsection (b) of Section 4.08 of the Standard Terms
shall be deleted and replaced with the following:
"that Holders of Certificates receiving notice of Call Rights being
exercised with respect to the Certificates held by them shall not be
entitled to any interest on the Certificates for any period on and after
the Call Date, and the only remaining right of Holders of such Certificates
is to receive payment of the Call Price upon surrender of the Certificates
to the Warrant Agent; and"
(d) The first sentence of subsection (d) of Section 4.08 of the
Standard Terms shall be deleted and replaced with the following:
"Once such notice is mailed to a Holder, such Holder shall not be
entitled to any right as a Holder other than the right to receive payment
of the Call Price on the Call Date and the Certificates subject to the Call
Right shall be deemed to have been automatically surrendered to the Trust
for further transfer to the holder exercising its Call Right."
(e) Subsection (e) of Section 4.08 of the Standard Terms shall be
deleted and replaced with the following:
"At or prior to 12:00 noon on the Call Date, the holder of the Call
Right to be exercised shall deposit with the Escrow Agent by wire transfer
in same-day funds money sufficient to pay the Call Price of the
Certificates to be purchased on that date."
(f) Subsection (f) of Section 4.08 of the Standard Terms shall be
deleted and replaced with the following:
"This subsection has been intentionally left blank."
(g) Subsection (g) of Section 4.08 shall be deleted and replaced with
the following:
"Upon surrender of any Certificate that is purchased in part, the
Depositor shall execute and the Trustee shall authenticate and deliver to
the Holder a new Certificate equal in principal amount to the portion of
such surrendered Certificate not purchased."
24
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed by their respective authorized officers as of the date first
written above.
Xxxxxxx Xxxxx Depositor, Inc.,
as Depositor
By:
------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President
The Bank of New York,
not in its individual capacity
but as Trustee
By:
------------------------------------------------
Name: Xxxxxx X.Xxxxxxx
Title: Authorized Signatory
The Bank of New York,
as Securities Intermediary
By:
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
25
SCHEDULE I
PREFERREDPLUS TRUST CERTIFICATES, SERIES ALL-1
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: $[_________] 8.207% Series B Capital Securities
(principal amount $1,000 per security) due February
3, 2027 of the Underlying Securities Issuer and
fully and unconditionally guaranteed by the
underlying securities guarantor.
Underlying Securities
Declaration: Amended and Restated Declaration of Trust dated as
of February 3, 1997, between the Underlying
Securities Guarantor, as sponsor and the trustees
of the Underlying Securities Issuer.
Underlying Securities
Issuer: AFC Capital Trust I, a Delaware business trust.
Underlying Securities
Guarantor Allmerica Financial Corporation, a Delaware
corporation.
Underlying Securities
Trustee: The Chase Manhattan Bank.
Underlying Securities 00000XXX0
CUSIP Number:
Underlying Securities February 3, 1997
Original Issue Date:
Underlying Securities $[________] 8.207% Series B Capital Securities due
Original Amount Issued: February 3, 2027 (principal amount $1,000 per
security)
Underlying Securities 333-29333
Commission Filing Number:
Underlying Securities February 3, 2027
Maturity Date:
Underlying Securities February 3, 2027
Principal Payment Date:
Underlying Securities February 15 and August 15, or if any such date is
Interest Payment Dates: not a business day, then the next succeeding
business day to the persons in
whose names the Underlying Securities are registered
at the close of business on February 1 or August 1
prior to the payment date, subject to certain
exceptions.
Underlying Securities 8.207 % per annum.
Interest Rate:
Underlying Securities February 1 and August 1.
Record Dates:
Underlying Securities The Underlying Securities will be subject to
Redemption: mandatory redemption upon repayment of the junior
subordinated debentures held by the Underlying
Securities Issuer at maturity or their earlier
redemption. The junior subordinated debentures are
not redeemable at the option of the Underlying
Securities Guarantor, except in the case of a
Special Event.
A "Special Event" is a Tax Event or an Investment
Company Event (as those terms are defined in the
Underlying Securities Declaration)
Underlying Securities None.
Collateral:
Underlying Securities None.
Amortization:
Underlying Securities Semi-annual.
Accrual Periods:
Underlying Securities The Underlying Securities are denominated and
Authorized Denomination payable in U.S. dollars and are available in
and Specified Currency: minimum denominations of $1,000 and integral
multiples thereof.
Underlying Securities "A3" by Xxxxx'x and "BBB" by S&P.
Rating as of Closing:
Underlying Securities
Form: Book-entry security with DTC.
EXHIBIT A
Standard Terms for Trust Agreements
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EXHIBIT B
Form of Certificate
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EXHIBIT C
Market Agent Agreement
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EXHIBIT D
Form of Escrow Agreement
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