EXHIBIT 4
PPLUS 7.00% TRUST CERTIFICATES SERIES SPR-1
SERIES SUPPLEMENT
between
XXXXXXX XXXXX DEPOSITOR, INC.,
as Depositor,
and
THE BANK OF NEW YORK,
as Trustee and Securities Intermediary
Dated as of November 28, 2003
SERIES SUPPLEMENT, dated as of November 28, 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. (a) Except as otherwise specified herein or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below for all purposes under this 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": Voting Rights, Liquidation Proceeds, Realized Losses
and Extraordinary Trust Expenses shall be allocated to Certificateholders in
accordance with their pro rata interests in the Certificates.
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"Authorized Denomination": With respect to Certificates, an aggregate
stated amount of $1,000.
"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 November 15, 2008; (ii) a Call Holder designates as a Call Date
before November 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 Call Right.
"Call Price": (i) Prior to November 15, 2008, means $25.00 per Certificate
being called, (ii) on or after November 15, 2008, $25.00 per Certificate being
called and (iii) at any time upon an acceleration of the Underlying Securities
and payment in full by the Underlying Securities Issuer of all amounts when due,
$25.00 per Certificate being called, in each case plus any accrued and unpaid
interest on each Certificate being called to the Call Date. Any payments of
interest on the Call Date by the Trust to the Certificateholder shall be
excluded.
"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 Certificateholders
on a Call Date some or all of the Certificates for the Call Price.
"Certificates": The 1,000,600 trust 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 7.00% per annum on the stated amount of the
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.
"Closing Date": November 28, 2003.
"Collection Period": (i) With respect to each May 15 Distribution Date, the
period beginning on the day after the November 15 Distribution Date of the prior
year and ending on such May 15 Distribution Date, inclusive, and (ii) with
respect to each November 15
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Distribution Date, the period beginning on the day after the May 15 Distribution
Date of the current year and ending on such November 15 Distribution Date,
inclusive, except for the May 15, 2004 Distribution Date, as to which the
Collection Period shall be the period beginning on the Cut-off Date and ending
on such May 15, 2004 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": November 28, 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": May 15 and November 15 of each year (or if such date
is not a Business Day, the next succeeding Business Day), commencing on May 15,
2004 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 deposited into the Certificate Account for distribution in
accordance with the Allocation Ratio 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, then all holders of
outstanding Call Rights will be deemed to have 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 Call Price per
Certificate 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)
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of the Warrant Agreement), (B) the stated amount per Certificate plus
accrued and unpaid distributions thereon, which shall be deemed to equal
the Call Price per Certificate, 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 distributed pro
rata among the Call Holders that are deemed to have exercised their Call
Rights automatically pursuant to this clause and the Certificateholders 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 deposit such
payment into the Certificate Account for distribution in accordance with
the Allocation Ratio 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) distribute a principal amount of the Underlying Securities
equal to the aggregate stated amount of the outstanding Trust Certificates
and a pro rata portion of the Related Assets in accordance with the
Allocation Ratio 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 deposited into the Certificate
Account for distribution in accordance with the Allocation Ratio on the
first Business Day following such deposit into the 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) distribute a
principal amount of Underlying Securities equal to the stated amount of
outstanding Trust Certificates and a pro rata portion of the Related Assets
in accordance with the Allocation Ratio 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 deposited into
the Certificate Account for distribution in accordance with the Allocation
Ratio on the first Business Day following such deposit into the 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 Underwriting Securities Issuer, then the Trustee,
upon receiving notice of such event shall (A) distribute a
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principal amount of Underlying Securities equal to the stated amount of
outstanding Trust Certificates and a pro rata portion of the Related Assets in
accordance with the Allocation Ratio 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 deposited into the Certificate Account for
distribution in accordance with the Allocation Ratio on the first Business Day
following such deposit into the 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 Call Rights. If less than all outstanding 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 the stated amount of Trust
Certificates equal to the stated amount of Call Rights being exercised
multiplied by the aggregate stated amount of the outstanding Trust Certificates
not subject to Delivery Certificates divided by the aggregate stated amount of
the outstanding 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 Call Price on the date such 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 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.
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"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": November 15, 2028 (or if such date is
not a Business Day, the next succeeding Business Day).
"Fixed Pass-Through Rate": 7.00% 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": The Fixed Pass-Through Rate.
"Prepaid Ordinary Expenses": Zero (0).
"Prospectus Supplement": The Prospectus Supplement dated November 25, 2003
relating to the Certificates.
"Rating Agency": Xxxxx'x and S&P.
"Record Date": The Business Day immediately preceding each Distribution
Date.
"Series": PPLUS 7.00% Trust Certificates Series SPR-1.
"Underlying Securities": The $25,475,000 aggregate principal amount of
6.875% Notes due November 15, 2028 issued by the Underlying Securities Issuer,
as described in Schedule I hereto.
"Underlying Securities Guarantor": As set forth in Schedule I.
"Underlying Securities Indenture": As set forth in Schedule I.
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"Underlying Securities Issuer": Sprint Capital Corporation, a Delaware
corporation.
"Underlying Securities Prospectus Supplement": The prospectus supplement
dated November 12, 1998 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 November 28, 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"
"Limited Guaranty"
"Notional Amount"
"Reserve Account"
"Requisite Reserve Amount"
"Retained Interest"
"Surety Bond"
"Swap Agreement"
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"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 SPR-1." The Certificates
evidencing certain undivided ownership interests therein shall be known as the
"PPLUS 7.00% Trust Certificates Series SPR-1."
(b) The Certificates shall be held through the Depository in book-entry
form and shall be substantially in the form attached hereto as Exhibit B. The
Certificates shall be issued in authorized denominations 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) On each Distribution Date, commencing on May 15, 2004 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, the
Certificates will be entitled to receive distributions at a rate of 7.00% per
annum on the stated amount of the Certificates.
(d) On the Final Scheduled Distribution Date, the Certificates will be
entitled to a distribution of the aggregate principal amount of such Underlying
Securities.
(e) Any reference to the principal amount of the Certificates shall be
construed as a reference to the stated amount of the 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.
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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 Certificateholders, distributions accrued
during the related Collection Period at the rate of 7.00% per annum on the
stated amount of such Certificates and distributable on such Certificates
on such Distribution Date commencing on May 15, 2004 and ending on the
Final Scheduled Distribution Date;
(iii) third, to the Certificateholders, 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 Certificateholders, on the Final
Scheduled Distribution Date only, a distribution of the aggregate principal
amount of the Underlying Securities;
(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.
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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
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 Certificates with an aggregate stated amount of $5 million or
more acquired pursuant to the exercise of Call Rights held by it (provided that,
in the case of a group of Affiliated Persons, no single Affiliated Person holds
Certificates with an aggregate stated amount of less than $500,000 acquired
pursuant to the exercise of Call Rights 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 or Affiliated Persons intend to tender an
Authorized Denomination of 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
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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 Certificates equal to
the aggregate stated amount of Certificates acquired by such Person or
Affiliated Persons pursuant to the exercise of Call Rights held by it or
them.
Upon tender of such 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 Certificates being tendered divided by the aggregate
stated amount of 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 Call Rights respecting the exchanged Trust
Certificates, such unexercised 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
Certificates with an aggregate stated amount of $5 million or more acquired
pursuant to the exercise of Call Rights held by it (provided that, in the case
of a group of Affiliated Persons, no single Affiliated Person holds Certificates
with an aggregate stated amount of less than $500,000 acquired pursuant to the
exercise of 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 certificates with an aggregated stated amount of
$5 million or more 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;
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(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 Certificates equal to
the aggregate stated amount of Certificates acquired by such Person or
Affiliated Persons pursuant to the exercise of Call Rights held by it or
them.
Upon tender of such 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 Certificates being tendered divided by the aggregate
stated amount of Certificates then outstanding and, in the case of an exchange
by Xxxxxxx Xxxxx & Co. or any of its Affiliates, where such Person or Affiliate
Person holds unexercised Call Rights respecting the exchanged Trust
Certificates, such unexercised 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.
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
13
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 Certificateholders, proportionately to
the ratio of their respective entitlements to interest payments.
(d) The outstanding principal balance of the 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.
(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:
14
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
Corporate Trust Department
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: PPLUS Trust Series SPR-1
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 SPR-1
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 SPR-1
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
15
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
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, 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
16
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 distribute the Redemption
Amount to the Certificateholders.
(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 Certificates equal to the aggregate amount 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 Certificates being selected by lot may be
reduced by the aggregate stated amount of Certificates 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 to the Certificateholders plus
accrued and unpaid distributions on the Certificates to the Redemption
Date. Such Redemption Amount will be distributed to the 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 to have been surrendered for
cancellation by the Trust, and the aggregate stated amount of the
outstanding Certificates shall be reduced by the aggregate stated amount of
such Certificates; 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,
17
in whole or in part, a principal amount of Certificates proportionate to
such Call Holder's exercised Call Warrants, in Authorized Denominations of
Certificates at the Call Price;
(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 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 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 all of the outstanding 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 Certificates that are subject to Call Rights, the Call
Holder may deposit such 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
Xxxxx'x 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, 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 Certificates to be surrendered
by the Certificateholders thereof to the
18
Trustee upon any such exercise (other than 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 Certificates to the exercising Call Holder and
the proceeds of the 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.
(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 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
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) a stated amount of Certificates equal to the
aggregate stated amount of Certificates not subject to Delivery Certificates
then outstanding multiplied by the aggregate principal amount of Call Rights
being exercised divided by the aggregate principal amount of the outstanding
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 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 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
19
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 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; 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
20
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 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 SPR-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
21
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
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:
22
"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."
23
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
24
SCHEDULE I
PPLUS 7.00% TRUST CERTIFICATES, SERIES SPR-1
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: $25,475,000 6.875% Senior Notes due November 15,
2028 of the Underlying Securities Issuer.
Underlying Securities Indenture dated as of October 1, 1998, between the
Indenture: Underlying Securities Issuer, and the Underlying
Securities Trustee.
Underlying Securities Sprint Capital Corporation, a Delaware corporation.
Issuer:
Underlying Securities Bank One N.A.
Trustee:
Underlying Securities Sprint Corporation, a Kansas corporation.
Guarantor
Underlying Securities 000000XX0.
CUSIP Number:
Underlying Securities November 16, 1998.
Original Issue Date:
Underlying Securities $2,500,000,000 6.875% Senior Notes due November 15,
Original Amount Issued: 2028.
Underlying Securities 333-65649.
Commission Filing Number:
Underlying Securities November 15, 2028.
Maturity Date:
Underlying Securities November 15, 2028.
Principal Payment Date:
Underlying Securities May 15 and November 15, or if any such date is not
Interest Payment Dates: 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 first day of the month of the relevant
interest payment date, subject to certain
exceptions.
Underlying Securities 6.875% per year.
Interest Rate:
Underlying Securities May 1 and November 1.
Record Dates:
Underlying Securities The Underlying Securities are redeemable at the
Redemption: option of the Underlying Securities Issuer, in
whole or in part, at any time at a redemption
price equal to the greater of (i) 100% of the
principal amount of the Underlying Securities to
be redeemed or (ii) as determined by the
independent investment banker, the sum of the
present values of the remaining scheduled payments
of principal and interest, exclusive of interest
accrued to the redemption date, discounted to the
date of redemption on a semi-annual basis
(assuming a 360-day year consisting of 30-day
months) at an adjusted treasury rate plus 25 basis
points plus accrued and unpaid interest to the
date of redemption. Holders of the underlying
securities to be redeemed will receive at least 30
days but not more than 60 days notice of that
redemption.
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 multiples
thereof.
Underlying Securities "BBB-" by S&P and "Baa3" by Xxxxx'x.
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 Certificate
(begins on next page)
EXHIBIT C
Market Agent Agreement
(begins on next page)
EXHIBIT D
Form of Escrow Agreement
(begins on next page)
