EXHIBIT 4
PPLUS TRUST CERTIFICATES SERIES GSG-2
SERIES SUPPLEMENT
between
XXXXXXX XXXXX DEPOSITOR, INC.,
as Depositor,
and
THE BANK OF NEW YORK,
as Trustee and Securities Intermediary
Dated as of July 30, 2003
SERIES SUPPLEMENT, dated as of July 30, 2003 (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 (a) the Certificates evidencing undivided interests in the Trust and (b) Call
Rights;
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; and
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 August 15, 2008; (ii) a Call Holder designates as a Call
Date before August 15, 2008 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) 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) at
any time in the case of a tender offer for the Underlying Securities, 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 1,400,000 Class A Certificates and all 1,400,000
Class B Certificates.
"Class A Allocation": The present value (discounted at the rate of
6.125% 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 in
full when due and are not accelerated or redeemed prior to their stated
maturity).
"Class A Call Price" means $25.00 per Class A Certificate being called
plus any accrued and unpaid interest on each Class A Certificate being called to
the Call Date. Any payments of interest on the Call Date by the Trust to the
applicable Class A Certificateholder shall be excluded.
"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.
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"Class A Certificate Account": The Certificate Account established for
the Class A Certificateholders.
"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,
distributions at a rate of 5.75% per annum on 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 6.125% per annum) of the Class B Payments (assuming, for purposes
hereof, that the Underlying Securities are paid in full on their stated maturity
date, and no portion thereof is accelerated or redeemed prior to such date).
"Class B Call Price" means the sum of the present values, discounted at
a rate of 6.125% per annum, of the unpaid distributions due, or to become due,
in respect of the Class B Payments to be made on each Class B Certificate being
called on or after the Call Date (assuming, for purposes hereof, that the
Underlying Securities are paid in full on their stated maturity date, and no
portion thereof is accelerated or redeemed prior to such date). Any payments of
interest on the Call Date by the Trust to the applicable Class B
Certificateholder shall be excluded.
"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 August 15, 2003 and
ending on the Final Scheduled Distribution Date, a distribution of 0.375% per
annum of the aggregate notional principal amount of Class B Certificates and
such other distributions as described herein.
"Class B Payments" will have the meaning given to it in Section 3(d).
"Closing Date": July 30, 2003.
"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
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prior year and ending on such February 15 Distribution Date, inclusive, except
for the August 15, 2003 Distribution Date, as to which the Collection Period
shall be the period beginning on the Cut-off Date and ending on such August 15,
2003 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
Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 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 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX
00000.
"Cut-off Date": July 30, 2003
"Delivery Certificates" has the meaning given to it in Section 2.02 of
the Warrant Agreement.
"Depository": The Depository Trust Company, its nominees and their
respective successors.
"Distribution Date": February 15 and August 15 of each year (or if such
date is not a Business Day, the next succeeding Business Day), commencing on
August 15, 2003 and ending on the Final Scheduled Distribution Date.
"Distribution Election": (a) If there occurs an Event of Default (as
defined in the Underlying Securities Indenture) on the Underlying Securities
under clauses (1) or (2) of Section 5.01 of the Underlying Securities Indenture,
then the Trustee, upon receiving notice of such event, shall, on or immediately
after the 30th day after such event, 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, prior to the day on which the Market Agent sells the Underlying
Securities pursuant to paragraph (a) above, there occurs (and the trustee
receives notice of such occurrence) 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
Indenture, and the Underlying Securities Issuer:
(i) makes full payment of all amounts when due, and such
payment exceeds the sum of (x) the aggregate stated amount of the Class
A Certificates plus any accrued and unpaid distributions to the date of
payment and (y) the sum of the present values, discounted at the rate
of 6.125% per year, of the unpaid payments due, or to become due, in
respect of the Class B Payments to be made on the Class B Certificates
on or after the date of payment (assuming, for purposes of such
calculation, that the Underlying Securities would have been paid in
full at their stated maturity, that such acceleration had not occurred,
and that no portion thereof would have been redeemed prior to such
maturity date) then all holders of outstanding Call Rights will be
deemed to have
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exercised their Call Rights automatically, and the Trustee, upon
receiving such acceleration proceeds from the Underlying Securities
Issuer, shall, on the first Business Day following receipt of such
acceleration proceeds, distribute from such acceleration proceeds 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) for each Class A Certificate, $25.00 plus any
accrued and unpaid interest on such Class A Certificate to
that date of payment, or, for each Class B Certificate, the
sum of the present values, discounted at the rate of 6.125%
per annum, of the unpaid distributions that were due, or to
become due, in respect of the Class B Payments to be made on
such Class B Certificate on or after the date of payment
(assuming, for purposes of such calculation, that the
Underlying Securities would have been paid in full on their
stated maturity, and that such acceleration had not occurred,
and that no portion thereof would have been redeemed prior to
such stated maturity date), 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 Certificateholders of that Class to whom
Delivery Certificates were delivered in accordance with
Section 2.02(d) of the Warrant Agreement;
If the payment to be made by the Underlying
Securities Issuer does not exceed the threshold set forth
above, the Trustee shall divide the amount of such payment
between the Trust Certificate Classes in accordance with the
Allocation Ratio and distribute each Class's portion of such
amounts pro rata to the Trust Certificateholders of that
Class.
(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
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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
(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 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
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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 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 notional
principal amount of Class B Certificates equal to the aggregate notional
principal amount of Class B Call Rights being exercised multiplied by the
aggregate notional principal amount of the outstanding Class B Certificates not
subject to Delivery Certificates divided by the aggregate notional principal
amount of the outstanding Class B Call Rights. The 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 payment, 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
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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
Exercise 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 Indenture. For a summary of certain events of default
in the Underlying Securities Indenture, please refer to the Prospectus
Supplement.
"Exercise Date": any date on which a Call Holder notifies the Trustee
of its intention to exercise its Call Right in accordance with the provision of
Section 14(c)(iii), any date a Call Holder is deemed to have exercised its Call
Right pursuant to Section 2.02(i)(iv) of the Warrant Agreement, or any date
following the acceleration of the Underlying Securities and payment in full of
all amounts when due by the Underlying Securities Issuer.
"Final Scheduled Distribution Date": February 15, 2033 (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,
5.75% per annum and with respect to the Class B Certificates, 0.375% 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 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 July 22, 2003
relating to the Class A Certificates and the Prospectus Supplement dated July
23, 2003 relating to the Class B Certificates.
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"Rating Agency": Xxxxx'x and S&P.
"Record Date": The Business Day immediately preceding each Distribution
Date.
"Series": PPLUS Trust Series GSG-2.
"Underlying Securities": The $35,000,000 aggregate principal amount of
6.125% Notes due February 15, 2033 issued by the Underlying Securities Issuer,
as described in Schedule I hereto.
"Underlying Securities Indenture": As set forth in Schedule I.
"Underlying Securities Issuer": The Xxxxxxx Xxxxx Group, Inc., a
Delaware corporation.
"Underlying Securities Prospectus Supplement": The prospectus
supplement dated February 6, 2003 and amended on February 10, 2003 filed with
the Securities and Exchange Commission by the Underlying Securities Issuer with
respect to the Underlying Securities.
"Warrant Agreement": The Warrant Agreement, dated as of July 30, 2003,
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"
"Letter of Credit"
"Limited Guarantor"
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"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 "PPLUS Trust Series GSG-2". The Class A
Certificates and Class B Certificates evidencing certain undivided ownership
interests therein shall be known as the "PPLUS Class A 5.75% Trust Certificates
Series GSG-2" and the "PPLUS Class B 0.375% Trust Certificates Series GSG-2,"
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 and a corresponding number of additional Warrants in
accordance with Article I of the Warrant Agreement.
(c) The Class A Certificates will be entitled to receive (i) on each
Distribution Date, commencing on August 15, 2003 and ending on the Final
Scheduled Distribution Date, or
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such earlier date if the Underlying Securities are redeemed prior to the Final
Scheduled Distribution Date, distributions at a rate of 5.75% 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 0.375% 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 the funds in the Certificate Account, 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 5.75% per annum on the stated
amount of the Class A Certificates to holders of the Class A
Certificates on such Distribution Date and 0.375% 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
August 15, 2003 and ending on the Final Scheduled Distribution Date;
(iii) third, divided between the Classes in accordance with
the proportionate interest of each Class in any delayed interest
payments on the Underlying Securities (e.g., 5.75/6.125 to the Class A
Certificateholders and 0.375/6.125 to the Class B Certificateholders)
and each Class' portion distributed to the holders of each Class pro
rata, if available, any additional payments paid by the Underlying
Securities Issuer as a result of a delay in the receipt by the Trustee
of any interest 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
(i) Person or (ii) group of Affiliated Persons (in each case other than the
Depositor) holding Class A Certificates with an
13
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 Class A Call Rights or Class B Call Rights held by it, (provided that, in the
case of a group of Affiliated Persons, no single Affiliated Person holds Class A
Certificates with an aggregate stated amount of less than $500,000 and Class B
Certificates with a notional principal amount of less than $500,000 acquired
pursuant to the exercise of Class A Call Rights or Class B Call Rights, as
applicable, 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:
(iii) such Person intends or Affiliated Persons intend to
tender an Authorized Denomination of Class A Certificates and an equal
number of Class B Certificates that it holds or they hold to the
Trustee on such Optional Exchange Date in exchange for a proportional
amount of Underlying Securities;
(iv) 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;
(v) such exchange will not affect the characterization of the
Trust as a "grantor trust" under the Code;
(vi) 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 or Affiliated Persons
tendering such Certificates will hold all remaining outstanding
Certificates upon completion of the exchange of such Certificates
pursuant to this Section 7;
(vii) such exchange will not be made with respect to
Certificates subject to outstanding Call Rights held by any Person or
Affiliated Persons other than the Person or Affiliated Persons
exercising such exchange; and
(viii) 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 or Affiliated
Persons pursuant to the exercise of the applicable Call Rights held by
it or them.
Upon tender of such Class A Certificates and Class B Certificates on such
Optional Exchange Date, the Trustee will deliver to the Person or Affiliated
Persons 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, in the case of an exchange by Xxxxxxx Xxxxx & Co.
or any of its Affiliates, where such Person or Affiliated Person holds
unexercised Class A Call
14
Rights respecting the exchanged Class A Certificates and a corresponding number
of unexercised Class B Call Rights respecting the exchanged Class B
Certificates, such unexercised Class A Call Rights and Class B Call Rights held
by such Person or Affiliated Person shall be cancelled. Any Call Holder that has
properly provided notice of exercise to the Warrant Agent and has deposited the
Call Price with the Escrow Agent may concurrently designate an Optional Exchange
Date, and such Optional Exchange Date shall be specified in the notice of
exercise, provided, however, that such Optional Exchange Date shall not occur
prior to the applicable Call Date.
(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 or Affiliated Persons (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 (provided
that, in the case of a group of Affiliated Persons, no single Affiliated Person
holds Class A Certificates with an aggregate stated amount of less than $500,000
and Class B Certificates with a notional principal amount of less than $500,000
acquired pursuant to the exercise of Class A Call Rights or Class B Call Rights,
as applicable, 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 or such Affiliated Persons intend to
tender an Authorized Denomination of Class A Certificates with an
aggregate stated amount of $5 million or more and a corresponding
number of Class B Certificates that it holds or they hold 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 or Affiliated Persons tendering
such Certificates will hold all remaining outstanding Certificates upon
completion of the exchange of 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 or
Affiliated Persons other than the Person or Affiliated Persons
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 or Affiliated Persons pursuant to
the exercise of Call Rights held by it or them.
15
Upon tender of such Class A Certificates and Class B Certificates on such
Optional Exchange Date, the Trustee will deliver to the Person or Affiliated
Persons 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, and in the case of an exchange by Xxxxxxx Xxxxx &
Co. or any of its Affiliates, where such Person or Affiliated Person holds
unexercised Class A Call Rights respecting the exchanged Class A Certificates
and a corresponding number of unexercised Class B Call Rights respecting the
exchanged Class B Certificates, such unexercised Class A Call Rights and Class B
Call Rights held by such Person or Affiliated Person shall be cancelled.
(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 or
Affiliated Persons 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 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; provided, however, that the Trustee shall give notice of
an Event of Default to the extent required under "Distribution Election."
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.
16
(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 D.
(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
17
If to the Trustee, to:
The Bank of New York
Corporate Trust Department
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: PPLUS Trust Series GSG-2
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Securities Intermediary, to:
The Bank of New York
Corporate Trust Department
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: PPLUS Trust Series GSG-2
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Warrant Agent, to
The Bank of New York
Corporate Trust Department
000 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000
Attention: PPLUS Trust Series GSG-2
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 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, XX 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
18
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.
Section 11. Governing Law. This Supplement and the transactions
described herein shall be construed in accordance with and governed by the laws
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 or Redemption 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, upon prior written notice to the Rating Agencies, elect to 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 (the "Redemption Amount") upon the redemption of the
Underlying Securities, in whole or in part, by the Underlying Securities Issuer
pursuant to the Underlying Securities Indenture and the Underlying Securities
Prospectus Supplement. (i) Upon the redemption of the Underlying Securities in
whole, but not in part, (A) on the stated maturity date of such Underlying
Securities or (B) at the option of the Underlying Securities Issuer, upon at
least 30 days, but not more than 60 days, prior notice pursuant to the
Underlying Securities Indenture, the Redemption Amount will be distributed pro
rata to the holders of the Underlying Securities, including the Trust. Upon
receiving such Redemption Amount, the Trust shall
19
distribute the Redemption Amount 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; second, pro rata to the Class B
Certificateholders until each shall have received the sum of the present values
(discounted at the rate of 6.125% per annum) of the Class B Payments on or after
the Redemption Date (assuming, for purposes of such calculation, that the
Underlying Securities would have been paid in full on their stated maturity with
no such redemption or acceleration); and third, any remaining Redemption Amount
will be divided between the Classes of trust certificates in accordance with a
percentage equal to 5.75/6.125 of such amount to the Class A Certificateholders
and 0.375/6.125 of such amount to the Class B Certificateholders, and within
each class the Redemption Amount will be distributed pro rata to the
Certificateholders of the Class A or Class B Certificates entitled to such
Redemption Amount upon the date such Redemption Amount is received in
immediately available funds by the Trust if such Redemption Amount is received
prior to 1:00 p.m. local time at the office of the Trustee and otherwise on the
next Business Day. (ii) Upon any redemption of the Underlying Securities in part
at the option of the Underlying Securities Issuer upon at least 30 days, but not
more than 60 days, prior notice pursuant to the Underlying Securities Indenture,
the Redemption Amount will be distributed pro rata to the holders of the
Underlying Securities, including the Trust. Upon any such redemption in part,
the Trustee shall select by lot (or by such other reasonable procedure as may be
established by the Trustee) a stated amount of Class A Certificates and an equal
notional principal amount of Class B Certificates equal to the aggregate amount
of each Class of Certificates then outstanding multiplied by the aggregate
principal amount of Underlying Securities subject to redemption and then held by
the Trust divided by the aggregate principal amount of Underlying Securities
then held by the Trust; provided that the amount of each Class of Trust
Certificates being selected by lot may be reduced by the aggregate stated amount
of Class A Certificates or notional principal amount of Class B Certificates, as
applicable, called pursuant to the exercise of Call Rights prior to such
redemption in accordance with the terms of the Warrant Agreement. Upon receiving
such Redemption Amount, the Trust shall distribute the Redemption Amount, first,
pro rata to the Class A Certificateholders selected by lot pursuant to this
subsection 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; second, pro rata to the Class B
Certificateholders selected by lot pursuant to this subsection until each shall
have received the sum of the present values (discounted at the rate of 6.125%
per annum) of the Class B Payments on or after the Redemption Date (assuming for
purposes of such calculation, that the Underlying Securities would have been
paid in full on their stated maturity with no such redemption or acceleration);
and third, any remaining Redemption Amount will be divided between the Classes
of trust certificates in accordance with a percentage equal to 5.75/6.125 of
such amount to the Class A Certificateholders and 0.375/6.125 of such amount to
the Class B Certificateholders, and within each class the Redemption Amount will
be distributed pro rata to the Certificateholders of the Class A or Class B
Certificates. Such Redemption Amount will be distributed to the Class A and
Class B Certificateholders entitled to such Redemption Amount upon the date such
Redemption Amount is received in immediately available funds by the Trust if
such Redemption Amount is received prior to 1:00 pm local time at the office of
the Trustee and otherwise on the next Business Day. Upon distribution of the
Redemption Amount by the Trustee, the Trust Certificates called pursuant to the
exercise of Call Rights and the Trust Certificates selected by lot pursuant to
this subsection (ii) shall be deemed
20
to have been surrendered for cancellation by the Trust, and the aggregate stated
amount of the outstanding Class A Certificates and the aggregate notional
principal amount of the outstanding Class B Certificates shall be reduced by the
aggregate stated amount of such Class A Certificates and the aggregate notional
principal amount of such Class B Certificates, as applicable; provided that the
right of a Certificateholder to receive the Call Price will not be affected by
any such deemed surrender. Payment of the Redemption Amount with respect to the
Certificates will be made to the Call Holder exercising the Call Rights.
(c) The Call Terms are as follows:
(i) The initial holders of the Call Rights are as named in the
Call Warrants and such holders 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 E (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; provided, that if (a)
all of the outstanding Trust Certificates of a given Class are
to be purchased pursuant to the exercise of the Warrants on an
Exercise Date and the exercising Call Holder
21
at such time holds Class A Certificates or Class B
Certificates that are subject to Call Rights, the Call Holder
may deposit such Class A Certificates or Class B Certificates
with the Escrow Agent in lieu of the portion of the Call Price
that would relate thereto, and (b) if less than all of the
outstanding Class B Trust Certificates are to be purchased
pursuant to the exercise of the Warrants on an Exercise Date
and the exercising Call Holder at such time holds Class B
Certificates that are subject to Call Rights, the Call Holder
may deposit such Class B Certificates with the Escrow Agent in
lieu of the portion of the Call Price that would relate
thereto.
(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
Moody's and S&P is in one of the investment grade categories
of Xxxxx'x and S&P, respectively, on such date.
The provisions 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 (other than
Class A Trust Certificates held by any Person to whom a Delivery Certificate was
delivered in accordance with Section 2.02(d) of the Warrant Agreement, as
evidenced by the registration of such Delivery Certificate in the Delivery
Register in accordance with Section 4.01 of the Warrant Agreement), 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, if the amount to be purchased exceeds the amount of Trust
Certificates of such Class held by the Call Holder and deposited with the Escrow
Agent, 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 (other than
Class B Trust Certificates held by any Persons to whom a Delivery Certificate
was delivered in accordance with Section 2.02(d) of the Warrant Agreement, as
evidenced by the registration of such Delivery Certificate in the Delivery
Register in accordance with Section 4.01 of the Warrant Agreement), 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. Upon
distribution of the applicable Call Price, the Trust Certificates called
pursuant to the exercise of Call Rights shall be deemed to have been surrendered
and such Trust Certificates shall be transferred to the Call Holder; provided
that the right of a Certificateholder to receive the Call Price will not be
affected by any such deemed surrender.
22
(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, after giving effect to the exercise of Call Rights with respect to Trust
Certificates already held by the Call Holder, as set forth in the Warrant
Agreement, (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 notional principal amount of Class
B Certificates equal to the aggregate notional principal amount of Class B
Certificates not subject to Delivery Certificates then outstanding multiplied by
the aggregate notional principal amount of Class B Call Rights being exercised
divided by the aggregate notional principal 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
23
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 Indenture or any other document thereunder or relating thereto, or
receives any other solicitation for any action with respect to the Underlying
Securities, the Trustee shall mail a notice of such proposed amendment,
modification, waiver or solicitation to each Certificateholder of record as of
such date. The Trustee shall request instructions from the Certificateholders as
to whether or not to consent to or vote to accept such amendment, modification,
waiver or solicitation. The Trustee shall consent or vote, or refrain from
consenting or voting, in the same proportion (based on the relative outstanding
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, 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 and 100% of the Call
Holders, or (iii) except as provided in the following paragraph, 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 Indenture 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. Subject to Sections 7(b) and 14 in connection
with a tender offer and the exercise of Call Rights or Optional Exchange rights,
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
24
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 Indenture 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.
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 PPLUS Trust Series GSG-2, 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"
25
(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 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:
"Subject to Section 2.02(a)(i) of the Warrant Agreement, 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."
26
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: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
The Bank of New York,
as Securities Intermediary
By:
-------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
27
SCHEDULE I
PPLUS TRUST CERTIFICATES, SERIES GSG-2
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: $35,000,000 6.125% Notes (principal amount
$1,000 per security) due February 15, 2033
of the Underlying Securities Issuer.
Underlying Securities Indenture: Indenture dated as of May 19, 1999 between
the Underlying Securities Issuer and the
Trustee.
Underlying Securities Issuer: The Xxxxxxx Xxxxx Group, Inc., a Delaware
corporation.
Underlying Securities Trustee: The Bank of New York
Underlying Securities 00000XXX0
CUSIP Number:
Underlying Securities February 13, 2003
Original Issue Date:
Underlying Securities $2,000,000,000 6.125% Notes due 2033
Original Amount Issued: (principal amount $1,000 per security)
Underlying Securities 333-63082
Commission Filing Number:
Underlying Securities February 15, 2033
Maturity Date:
Underlying Securities February 15, 2033
Principal Payment Date:
Underlying Securities February 15 and August 15, or if any such
Interest Payment Dates: date is 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 the
February 1 or August 1, respectively,
immediately prior to the relevant interest
payment date, subject to certain
exceptions.
Underlying Securities 6.125% per annum.
Interest Rate:
Underlying Securities February 1 and August 1.
Record Dates:
Underlying Securities In certain circumstances summarized in the
Redemption: Prospectus Supplement, the Underlying
Securities will be redeemable at the option
of the Underlying Securities Issuer, in
whole or in part, at a redemption price
equal to the greater of (1) 100% of the
principal amount of the underlying
securities to be redeemed or (2) as
determined by the quotation agent described
below, the sum of the present values of the
remaining scheduled payments of principal
and interest on the underlying securities
to be redeemed, not including any portion
of these payments of interest accrued as of
the date on which the underlying securities
are to be redeemed, discounted to the date
on which the underlying securities are to
be redeemed on a semi-annual basis assuming
a 360-day year consisting of twelve 30-day
months, at the adjusted treasury rate
described below plus 20 basis points, plus,
in each case, accrued interest on the
underlying securities to be redeemed to the
date on which the underlying securities are
to be redeemed. Additionally, the
Underlying Securities Issuer will be
entitled, at its option, to redeem the
Underlying Securities in whole and not in
part if at any time it becomes obligated to
pay additional amounts on any Underlying
Securities on the next interest payment
date, but only if its obligation results
from a change in the laws or regulations of
any U.S. taxing authority, or from a change
in any official interpretation or
application of those laws or regulations,
that becomes effective or is announced on
or after February 6, 2003. If it redeems
the Underlying Securities pursuant to this
tax event redemption right, it will do so
at a redemption price equal to 100% of the
principal amount of the underlying
securities redeemed, plus accrued interest
to the redemption date. Holders of the
underlying securities to be redeemed will
receive at least 30 days but not more than
60 days notice of a redemption.
Underlying Securities None.
Collateral:
Underlying Securities None.
Amortization:
Underlying Securities Semi-annual.
Accrual Periods:
Underlying Securities The Underlying Securities are denominated
Authorized Denomination and payable in U.S. dollars and are
and Specified Currency: available in minimum denominations of
$1,000 and integral multiples thereof.
Underlying Securities "Aa3" by Xxxxx'x and "A+" by S&P.
Rating as of Closing:
Underlying Securities Form: Book-entry security with DTC.
EXHIBIT A
Standard Terms for Trust Agreements
(begins on next page)
EXHIBIT B
Form of Class A Certificate
(begins on next page)
EXHIBIT C
Form of Class B Certificate
(begins on next page)
EXHIBIT D
Market Agent Agreement
(begins on next page)
EXHIBIT E
Form of Escrow Agreement
(begins on next page)
