Exhibit 4
PREFERREDPLUS 8.50% TRUST CERTIFICATES SERIES LMG-2
SERIES SUPPLEMENT
between
XXXXXXX XXXXX DEPOSITOR, INC.,
as Depositor,
and
THE BANK OF NEW YORK,
as Trustee and Securities Intermediary
Dated as of December 7, 2001
SERIES SUPPLEMENT, dated as of December 7, 2001 (the
"Supplement"), by and between XXXXXXX XXXXX DEPOSITOR, INC., a Delaware
corporation, as Depositor, THE BANK OF NEW YORK, a New York corporation, as
Trustee and Securities Intermediary.
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated
herein (the "Trust") by executing and delivering this Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
February 20, 1998 (the "Standard Terms" and, together with this Supplement, the
"Trust Agreement"), by and between the Depositor and the Trustee and Securities
Intermediary, as modified by this Supplement;
WHEREAS, the Depositor desires to deposit the Underlying
Securities set forth on Schedule I attached hereto into the Trust;
WHEREAS, in connection with the creation of the Trust and the
deposit therein of the Underlying Securities, it is desired to provide for the
issuance of the Certificates evidencing undivided interests in the Trust and
Call Rights; and
WHEREAS, the Trustee has joined in the execution of the
Standard Terms and this Supplement to evidence the acceptance by the Trustee of
the Trust;
WHEREAS, the Securities Intermediary has joined in the
execution of the Standard Terms and this Supplement to evidence the acceptance
by the Securities Intermediary of its obligations thereunder and hereunder;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee and Securities Intermediary as follows:
Section 1. Incorporation of Standard Terms. All of the
provisions of the Standard Terms, a copy of which is attached hereto as Exhibit
A, are hereby incorporated herein by reference in their entirety and this
Supplement and the Standard Terms shall form a single agreement among the
parties. In the event of any inconsistency between the provisions of this
Supplement and the provisions of the Standard Terms, the provisions of this
Supplement will control with respect to the transactions described herein.
Section 2. Definitions. Except as otherwise specified herein
or as the context may otherwise require, the following terms shall have the
respective meanings set forth below for all purposes under this Supplement
(Section 2(b) hereof sets forth terms listed in the Standard Terms that are not
applicable to this Series). Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Standard Terms.
"Allocation Ratio": The allocation amongst the
Certificateholders in accordance with their pro rata interests in the
Certificates.
"Authorized Denomination": With respect to Certificates, an
aggregate stated amount of $1,000.
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"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 January 15, 2007; (ii) a Call Holder
designates as a Call Date before January 15, 2007 after the announcement of any
redemption of the Underlying Securities or other unscheduled payment of the
Underlying Securities or after receipt by the Call Holder of notice of the
termination of the Trust; provided that if a Call Right is to be exercised after
the announcement of any redemption of the Underlying Securities or other
unscheduled payment of the Underlying Securities and prior to such redemption or
other unscheduled payment, then the Call Date designated by the Call Holder must
be the second Business Day prior to such redemption or other unscheduled
payment; (iii) that at any time is deemed a Call Date upon an acceleration of
the Underlying Securities and payment in full by the Underlying Securities
Issuer of all amounts when due; or (iv) in the case of a tender offer for the
Underlying Securities, the date which a Call Holder is deemed to designate as a
Call Date pursuant to Section 2.02(i)(iv) of the Warrant Agreement.
"Call Holder": The holder of a Call Right.
"Call Price": $25.00 per Certificate being called plus any
accrued and unpaid interest on each Certificate being called to the Call Date.
"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 1,240,000 trust certificates issued in a
stated amount of $25 each and entitled to receive on each Distribution Date
until the Final Scheduled Distribution Date distributions at a rate of 8.50% per
annum on their stated amount.
"Closing Date": December 7, 2001.
"Collection Period": (i) With respect to each July 15
Distribution Date, the period beginning on the day after the January 15
Distribution Date of the current year and ending on such July 15 Distribution
Date, inclusive, and (ii) with respect to each January 15 Distribution Date, the
period beginning on the day after the July 15 Distribution Date of the previous
year and ending on such January 15 Distribution Date, inclusive, except for the
January 15, 2002 Distribution Date, as to which the Collection Period shall be
the period beginning on the Cut-off Date and ending on such January 15, 2002
Distribution Date, inclusive; provided, however, that clauses (i) and (ii) shall
be subject to Section 9(c) hereof.
"Corporate Trust Office": The office of the Trustee located at
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Department; provided, however, that the office at which certificated
securities are delivered for registration of
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transfer, cancellation or exchange shall be the office of the Trustee, located
at 000 Xxxxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Cut-off Date": December 7, 2001.
"Depository": The Depository Trust Company, its nominees and
their respective successors.
"Distribution Date": July 15 and January 15 of each year (or
if such date is not a Business Day, the next succeeding Business Day),
commencing on January 15, 2002 and ending on the Final Scheduled Distribution
Date.
"Distribution Election": (a) If there occurs an Event of
Default (as defined in the Underlying Securities Indenture) on the Underlying
Securities under Section 501 of the Underlying Securities Indenture, then the
Trustee, upon receiving notice of such event, shall immediately direct the
Market Agent to sell the Underlying Securities and a pro rata portion of the
Related Assets held by the Trust, in accordance with the Sale Procedures, and
the Liquidation Proceeds, if any, shall be 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.
(b) If there occurs an acceleration of the date of maturity of
the Underlying Securities and the Underlying Securities are declared to be
immediately due and payable in accordance with the Underlying Securities
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
payment from the Underlying Securities Issuer, shall, on the first
Business Day following receipt of such payment, distribute from such
payment the following amounts: (A) the 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) 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 the Certificate Account; provided, that if
the Underlying
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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 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 (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 Underlying Securities Issuer, then the
Trustee, upon receiving notice of such event 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.
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
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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 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 Underlying Securities and Related Assets to be
distributed with respect to such called Trust Certificates shall be distributed
to the exercising Call Holders. In the case of a sale by the Market Agent of
Underlying Securities and Related Assets pursuant to clause (a) above, the
Trustee shall deliver such Underlying Securities and Related Assets to the
purchaser of such Underlying Securities and Related Assets only against payment
in same day funds and the Trustee shall deposit the same into the Certificate
Account.
"Eligible Investments": As defined in the Standard Terms;
provided, however, that (i) the minimum required rating for long-term
instruments will be equal to the lower of the rating of the Underlying
Securities or the Trust Certificates, and (ii) the rating of any short-term
instruments will be A-1+ by S&P and P1 by Xxxxx'x; and provided, further, that
any such investment matures no later than the Business Day prior to the next
succeeding Distribution Date.
"Escrow Agent": As will be set forth in the Escrow Agreement.
"Escrow Agreement": The escrow agreement to be entered into on
the Call Date among a given Call Holder, the Trustee and the Escrow Agent
pursuant to Section 14(c)(iii)(2) hereof.
"Event of Default": (i) A default in the payment of any
interest on any Underlying Security after the same becomes due and payable
(subject to any applicable grace period), (ii) a default in the payment of the
principal of or any installment of principal of any Underlying Security when the
same becomes due and payable and (iii) any other event specified as an event of
default in the Underlying Securities Indenture. For a summary of certain events
of default in the Underlying Securities Indenture, please refer to the
Prospectus Supplement.
"Final Scheduled Distribution Date": July 15, 2029 (or if such
date is not a Business Day, the next succeeding Business Day).
"Fixed Pass-Through Rate": 8.50% per annum.
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"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
December 4, 2001 relating to the Certificates.
"Rating Agency": Xxxxx'x and S&P.
"Record Date": The Business Day immediately preceding each
Distribution Date.
"Series": PREFERREDPLUS 8.50% Trust Certificates Series
LMG-2.
"Underlying Securities": The $31,000,000 aggregate principal
amount of 8.50% Debentures due July 15, 2029 issued by the Underlying Securities
Issuer, as described in Schedule I hereto.
"Underlying Securities Indenture": As set forth in Schedule I.
"Underlying Securities Issuer": Liberty Media Corporation, a
Delaware corporation.
"Warrant Agreement": The Warrant Agreement, dated as of
December 7, 2001, by and between the Trust and the Warrant Agent (as defined in
the Warrant Agreement).
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administration Account"
"Administrative Agent"
"Administration Agreement"
"Administrative Agent Termination Event"
"Advance"
"Calculation Agent"
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"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"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. (a) The
Trust created hereby shall be known as the "PREFERREDPLUS Trust Series LMG-2.
The Certificates evidencing certain undivided ownership interests therein shall
be known as the "PREFERREDPLUS 8.50% Trust Certificates Series LMG-2".
(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
8
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.
(c) On each Distribution Date, commencing on January 15, 2002
and ending on the Final Scheduled Distribution Date or such earlier date if the
Underlying Securities are redeemed prior to the Final Scheduled Distribution
Date, the Certificates will be entitled to receive distributions at a rate of
8.50% 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.
Section 5. Distributions. (a) On each Distribution Date, the
Trustee shall apply solely to the extent of Available Funds in the Certificate
Account as follows:
(i) first, to the Trustee, reimbursement for any approved
Extraordinary Trust Expenses incurred by the Trustee in accordance with
Section 6(b) hereof and approved by not less than 100% of the
Certificateholders;
(ii) second, to the Certificateholders, distributions accrued
during the related Collection Period at the rate of 8.50% per annum on
the stated amount of such Certificates and distributable on such
Certificates on such Distribution Date;
(iii) third, to the Certificateholders, if available, any
additional distribution owed and paid by the Underlying Securities
Issuer as a result of a delay in the receipt by the Trustee of any
payment on the Underlying Securities;
(iv) fourth, 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).
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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 Call Price with the Escrow Agent on the Exercise Date pursuant to
Section 14(c)(iii)(2) hereof, the Depositor and the Escrow Agent shall enter
into an agreement reasonably acceptable to both parties thereto whereby the
Depositor shall pay to the Escrow Agent a fee in consideration for its services
under the Escrow Agreement or Escrow Agreements, as applicable.
Section 7. Optional Exchange. (a) Xxxxxxx Xxxxx & Co. or any
of its Affiliates (other than the Depositor), if it holds Certificates, or any
other Person (other than the Depositor) holding Certificates with an aggregate
stated amount of $5 million or more 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 to tender an Authorized Denomination
of Certificates that it holds to the Trustee on such Optional Exchange
Date in exchange for a proportional amount of Underlying Securities;
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(ii) such exchange will not cause the Trust or Depositor to
fail to satisfy the applicable requirements for exemption under Rule
3a-7 under the Investment Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of
the Trust as a "grantor trust" under the Code,
(iv) in the case of an exchange of less than all outstanding
Certificates, such exchange will not cause a failure to satisfy the
minimum requirements for the Certificates to remain listed on the New
York Stock Exchange, unless the Person tendering such Certificates will
hold all remaining outstanding Certificates upon completion of the
exchange for such Certificates pursuant to this Section 7;
(v) such exchange will not be made with respect to
Certificates subject to outstanding Call Rights held by any Person
other than the Person exercising such exchange; and
(vi) in the case of an exchange by a person other xxxx Xxxxxxx
Xxxxx & Co. or any of its Affiliates (other than the Depositor), such
exchange will be made with respect to an aggregate stated amount of
Certificates equal to the aggregate stated amount of Certificates
acquired by such Person pursuant to the exercise of Call Rights held by
it.
Upon tender of such Certificates on such Optional Exchange Date, the Trustee
will deliver to the Person tendering such Certificates an amount of Underlying
Securities having a principal amount equal to the aggregate principal amount of
Underlying Securities then held by the Trust times the aggregate stated amount
of Certificates being tendered divided by the aggregate stated amount of
Certificates then outstanding.
(b) When a tender offer for the Underlying Securities is
pending, Xxxxxxx Xxxxx & Co. or any of its Affiliates (other than the
Depositor), if it holds Certificates, or any other Person (other than the
Depositor, or an Affiliate of the Person making such tender offer) holding
Certificates with an aggregate stated amount of $5 million or more acquired
pursuant to the exercise of Call Rights held by it, may notify the Trustee, not
less than 5 days but not more than 60 days prior to any such Optional Exchange
Date as they may designate, that:
(i) such Person intends to tender an Authorized Denomination
of Certificates that it holds to the Trustee on such Optional Exchange
Date in exchange for a proportional amount of Underlying Securities;
(ii) such exchange will not cause the Trust or Depositor to
fail to satisfy the applicable requirements for exemption under Rule
3a-7 under the Investment Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of
the Trust as a "grantor trust" under the Code,
(iv) in the case of an exchange of less than all outstanding
Certificates, such exchange will not cause a failure to satisfy the
minimum requirements for the
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Certificates to remain listed on the New York Stock Exchange, unless
the Person tendering such Certificates will hold all remaining
outstanding Certificates upon completion of the exchange for such
Certificates pursuant to this Section 7;
(v) such exchange will not be made with respect to
Certificates subject to outstanding Call Rights held by any Person
other than the Person exercising such exchange; and
(vi) in the case of an exchange by a person other xxxx Xxxxxxx
Xxxxx & Co. or any of its Affiliates (other than the Depositor), such
exchange will be made with respect to an aggregate stated amount of
Certificates equal to the aggregate stated amount of Certificates
acquired by such Person pursuant to the exercise of Call Rights held by
it.
Upon tender of such Certificates on such Optional Exchange Date, the Trustee
will deliver to the Person tendering such Certificates an amount of Underlying
Securities having a principal amount equal to the aggregate principal amount of
Underlying Securities then held by the Trust times the aggregate stated amount
of Certificates being tendered divided by the aggregate stated amount of
Certificates then outstanding.
(c) The requirements set forth in paragraphs (a)(ii), (a)(v)
and (a)(vi) of Section 4.07 of the Standard Terms do not apply to an Optional
Exchange pursuant to this Section 7.
(d) Any costs associated with the exercise of the rights
granted under paragraphs (a) and (b) of this Section 7 will be borne by the
Person exercising such rights and not by the Trust.
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.
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
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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:
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
13
If to the Trustee, to:
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
-PREFERREDPLUS Trust Series LMG-2
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Securities Intermediary, to:
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
- PREFERREDPLUS Trust Series LMG-2
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Warrant Agent, to
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
-PREFERREDPLUS Trust Series LMG-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, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14
and to:
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Copies of any tender offer materials and all directions,
demands and notices required to be given to the Certificateholders hereunder or
under the Standard Terms will be given to the Warrant Agent by facsimile
transmission and by mail.
Section 11. Governing Law. This Supplement and the
transactions described herein shall be construed in accordance with and governed
by the law of the State of New York.
Section 12. Counterparts. This Supplement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all such counterparts shall constitute but one and the same instrument.
Section 13. Termination of the Trust. (a) The Trust shall
terminate upon the earlier of (i) the payment in full at maturity or sale by the
Trust after a payment default on the Underlying Securities and the distribution
in full of all amounts due to the Certificateholders, (ii) the distribution to
the Certificateholders of all Underlying Securities in accordance with the
Distribution Election, (iii) the exchange of all outstanding Certificates for
Underlying Securities pursuant to one or more Optional Exchanges, (iv) the Final
Scheduled Distribution Date and (v) the holders of all, but not less than all,
of the Certificates exercising their election in Section 13(b) below.
(b) Certificateholders who hold all, but not less than all, of
the outstanding Certificates may, upon prior written notice to the Rating
Agencies, elect to terminate the Trust at any time; provided that (i) the
exercise of such termination right would not cause the Trust or the Depositor to
fail to satisfy the applicable requirements for exemption under Rule 3a-7 under
the Investment Company Act of 1940, as amended and (ii) if and for so long as
the call warrants remain outstanding, all of the Call Holders have consented to
such termination.
(c) To the extent that the provisions of this Section 13
conflict with Section 10.01 of the Standard Terms, the latter shall control.
Section 14. Sale of Underlying Securities; Call Right
(a) In the case of Extraordinary Trust Expenses approved by
100% of the Certificateholders of a given Class, pursuant to Section 6(b)
hereof, the Trustee may sell all or a portion of the Underlying Securities to
pay such Extraordinary Trust Expenses.
(b) This subsection has been intentionally left blank.
(c) The Call Terms are as follows:
15
(i) The initial holder of the Call Rights is an affiliate of
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
and such affiliate may transfer the Call Rights, in whole or in part,
to one or more third parties in privately negotiated transactions;
(ii) A Call Holder that has met the exercise requirements set
forth in paragraph (c)(iii) of this Section 14 may, on the Call Date,
exercise its option to purchase, in whole or in part, an Authorized
Denomination 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, and
(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 provision of this Section 14(c)(iii)(1) through (3) shall not apply if
Warrants are being exercised upon an acceleration of the Underlying Securities
and payment in full by the Underlying Securities Issuer of all amounts due upon
such acceleration.
16
(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 Trustee upon any such
exercise, 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.
(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 (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 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 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
17
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, or (iii) that would result in the exchange or substitution
of any of the outstanding Underlying Securities pursuant to a plan for the
refunding or refinancing of such Underlying Securities except in the event of a
default under the Underlying Securities 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. 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
18
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 PREFERREDPLUS Trust Series LMG-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"
(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
19
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:
"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."
20
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be duly executed by their respective authorized officers as of the
date first written above.
Xxxxxxx Xxxxx Depositor, Inc.,
as Depositor
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President
The Bank of New York,
not in its individual capacity
but as Trustee
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
The Bank of New York,
as Securities Intermediary
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
21
SCHEDULE I
PREFERREDPLUS 8.50% TRUST CERTIFICATES, SERIES LMG-2
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: $31,000,000 8.50% Debentures (principal
amount $1,000 per note) due July 15, 2029 of
the Underlying Securities Issuer
Underlying Securities Indenture: Indenture dated as of July 7, 1999, between
the Underlying Securities Issuer and the
Underlying Securities Trustee, as
supplemented by a first supplemental
indenture dated as of July 7, 1999 between
the Underlying Securities Issuer and the
Underlying Securities Trustee.
Underlying Securities Issuer: Liberty Media Corporation, a Delaware
corporation.
Underlying Securities Trustee: The Bank of New York.
Underlying Securities 000000XX0
CUSIP Number:
Underlying Securities July 7, 1999
Original Issue Date:
Underlying Securities $500,000,000 8.50% Debentures due July 15,
Original Amount Issued: 2029 (principal amount $1,000 per note)
Underlying Securities 333-86491
Commission Filing Number:
Underlying Securities July 15, 2029
Maturity Date:
Underlying Securities July 15, 2029
Principal Payment Date:
Underlying Securities July 15 and January 15, or if any such date
Interest Payment Dates: 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 July
1 or January 1 prior to the payment date,
subject to certain exceptions.
Underlying Securities 8.50 % per annum.
Interest Rate:
Underlying Securities July 1 and January 1.
Record Dates:
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 "Baa3" by Xxxxx'x and "BBB-" by S&P.
Rating as of Closing:
Underlying Securities Form: Book-entry security with DTC.
EXHIBIT A
Standard Terms for Trust Agreements
(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)
