EXHIBIT 4.2
PPLUS TRUST CERTIFICATES SERIES GSC-1
SERIES SUPPLEMENT
between
MERRILL LYNCH DEPOSITOR, INC.,
as Depositor,
and
THE BANK OF NEW YORK,
as Trustee and Securities Intermediary
Dated as of April 26, 2004
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SERIES SUPPLEMENT, dated as of April 26, 2004 (the "Supplement"),
by
and between MERRILL LYNCH DEPOSITOR, INC.,
a Delaware corporation, as Depositor,
THE BANK OF NEW YORK, a New York
corporation, as Trustee and Securities
Intermediary.
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated
herein
(the "Trust") by executing and delivering
this Supplement, which shall
incorporate the terms of the Standard Terms
for Trust Agreements, dated as of
February 20, 1998 (the "Standard Terms"
and, together with this Supplement, the
"Trust Agreement"), by and between the
Depositor and the Trustee and Securities
Intermediary, as modified by this
Supplement;
WHEREAS, the Depositor desires to deposit the Underlying Securities
set
forth on Schedule I attached hereto into
the Trust;
WHEREAS, in connection with the creation of the Trust and the
deposit
therein of the Underlying Securities, it is
desired to provide for the issuance
of (a) the Certificates evidencing
undivided interests in the Trust and (b) Call
Rights;
WHEREAS, the Trustee has joined in the execution of the Standard
Terms
and this Supplement to evidence the
acceptance by the Trustee of the Trust; and
WHEREAS, the Securities Intermediary has joined in the execution of
the
Standard Terms and this Supplement to
evidence the acceptance by the Securities
Intermediary of its obligations thereunder
and hereunder;
NOW, THEREFORE, in consideration of the foregoing premises and
the
mutual covenants expressed herein, it is
hereby agreed by and between the
Depositor and the Trustee and Securities
Intermediary as follows:
Section 1.
Incorporation of Standard Terms. All of the provisions of
the Standard Terms, a copy of which is
attached hereto as Exhibit A, are hereby
incorporated herein by reference in their
entirety and this Supplement and the
Standard Terms shall form a single
agreement among the parties. In the event of
any inconsistency between the provisions of
this Supplement and the provisions
of the Standard Terms, the provisions of
this Supplement will control with
respect to the transactions described
herein.
Section 2. Definitions. Except as otherwise specified herein or as
the
context may otherwise require, the
following terms shall have the respective
meanings set forth below for all purposes
under this Supplement (Section 2(b)
hereof sets forth terms listed in the
Standard Terms that are not applicable to
this Series). Capitalized terms used but
not defined herein shall have the
meanings assigned to them in the Standard
Terms.
"Allocation Ratio": The ratio of the Class A Allocation to the
Class B
Allocation. Voting Rights, Liquidation
Proceeds, Realized Losses and
Extraordinary Trust Expenses shall be
allocated between Class A
Certificateholders and Class B
Certificateholders in accordance with the
Allocation Ratio and, within each Class,
each of the foregoing rights and
obligations shall be allocated to
Certificateholders in accordance with their
pro rata interests in such Class.
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"Authorized Denomination": With respect to Certificates, an
aggregate
stated and/or notional principal amount of
$1,000, as applicable.
"Business Day": Any day that is not a Saturday, a Sunday or a
legal
holiday or a day on which banking
institutions or trust companies in the City of
New York are authorized or obligated by
law, regulation or executive order to
close and that also is specified as a
Business Day with respect to the
Underlying Securities.
"Call Date": Any Business Day that (i) a Call Holder designates as
a
Call Date on or after February 15, 2009;
(ii) a Call Holder designates as a Call
Date before February 15, 2009 after the
announcement of any redemption of the
Underlying Securities or other unscheduled
payment of the Underlying Securities
or after receipt by the Call Holder of
notice of the termination of the Trust;
provided that if a Call Right is to be
exercised after the announcement of any
redemption of the Underlying Securities or
other unscheduled payment of the
Underlying Securities and prior to such
redemption or other unscheduled payment,
then the Call Date designated by the Call
Holder must be the second Business Day
prior to such redemption or other
unscheduled payment; (iii) at any time is
deemed a Call Date upon an acceleration of
the Underlying Securities and payment
in full by the Underlying Securities Issuer
of all amounts when due; or (iv) at
any time in the case of a tender offer for
the Underlying Securities, a Call
Holder is deemed to designate as a Call
Date pursuant to Section 2.02(i)(iv) of
the Warrant Agreement.
"Call Holder": The holder of a Class A Call Right or a Class B
Call
Right.
"Call Price": The Class A Call Price and the Class B Call
Price.
"Call Right": The Class A Call Right and the Class B Call
Right.
"Certificates": All 2,000,000 Class A Certificates and all
2,000,000
Class B Certificates.
"Class A Allocation": The present value (discounted at the rate
of
6.345% per annum) of (i) the unpaid
interest, except for the Class B Payments,
due or to become due on the Underlying
Securities on or prior to the Final
Scheduled Distribution Date and (ii) the
principal amount of the Underlying
Securities (in each case assuming that the
Underlying Securities are paid in
full when due and are not accelerated or
redeemed prior to February 15, 2034).
"Class A Call Price" means $25.00 per Class A Certificate being
called
plus any accrued and unpaid interest on
each Class A Certificate being called to
the Call Date. Any payments of interest on
the Call Date by the Trust to the
applicable Class A Certificateholder shall
be excluded.
"Class A Call Right": The right, but not the obligation, pursuant
to
the Warrant Agreement and any related
Warrant Certificates (as defined in the
Warrant Agreement) of one or more Call
Holders to purchase from the Class A
Certificateholders on a Call Date some or
all of the Class A Certificates for
the Class A Call Price.
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"Class A Certificate Account": The Certificate Account established
for
the Class A Certificateholders.
"Class A Certificates": The Certificates issued by the Trust in
a
stated amount of $25 per trust certificate,
entitled to receive on each
Distribution Date until and including the
Final Scheduled Distribution Date,
distributions at a rate of 6.25% per annum
on the stated amount of the Class A
Certificates and a cash distribution of the
principal amount of the Underlying
Securities on the Final Scheduled
Distribution Date and such other distributions
as described herein.
"Class B Allocation": The sum of the present values (discounted at
the
rate of 6.345% per annum) of the Class B
Payments (assuming, for purposes
hereof, that the Underlying Securities are
paid in full on February 15, 2034,
and no portion thereof is accelerated or
redeemed prior to such date).
"Class B Call Price" means the sum of the present values,
discounted at
a rate of 6.345% per annum, of the unpaid
distributions due, or to become due,
in respect of the Class B Payments to be
made on each Class B Certificate being
called on or after the Call Date (assuming,
for purposes hereof, that the
Underlying Securities are paid in full on
February 15, 2034, and no portion
thereof is accelerated or redeemed prior to
February 15, 2034). Any payments of
interest on the Call Date by the Trust to
the applicable Class B
Certificateholder shall be excluded.
"Class B Call Right": The right, but not the obligation, pursuant
to
the Warrant Agreement and any related
Warrant Certificates (as defined in the
Warrant Agreement) of one or more Call
Holders to purchase from the Class B
Certificateholders on a Call Date some or
all of the Class B Certificates for
the Class B Call Price.
"Class B Certificate Account": The Certificate Account established
for
the Class B Certificateholders.
"Class B Certificates": The Certificates issued by the Trust with
the
right to receive, on each Distribution
Date, commencing on August 15, 2004 and
ending on the Final Scheduled Distribution
Date, a distribution of 0.095% per
annum of the aggregate notional principal
amount of Class B Certificates and
such other distributions as described
herein.
"Class B Payments" will have the meaning given to it in Section
3(d).
"Closing Date": April 26, 2004.
"Collection Period": (i) With respect to each August 15
Distribution
Date, the period beginning on the day after
the February 15 Distribution Date of
the current year and ending on such August
15 Distribution Date, inclusive, and
(ii) with respect to each February 15
Distribution Date, the period beginning on
the day after the August 15 Distribution
Date of the prior year and ending on
such February 15 Distribution Date,
inclusive, except for the August 15, 2004
Distribution Date, as to which the
Collection Period shall be the period
beginning on the Cut-off Date and ending on
such August 15, 2004 Distribution
Date, inclusive; provided, however, that
clauses (i) and (ii) shall be subject
to Section 9(c) hereof.
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"Corporate Trust Office": The office of the Trustee located at
101
Barclay Street, Floor 8E, New York, NY
10286, Attention: Corporate Trust Dealing
& Trading Group; 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 101 Barclay Street, Floor 8E, New
York, NY 10286.
"Cut-off Date": April 26, 2004
"Delivery Certificates" has the meaning given to it in Section 2.02
of
the Warrant Agreement.
"Depository": The Depository Trust Company, its nominees and
their
respective successors.
"Distribution Date": February 15 and August 15 of each year (or if
such
date is not a Business Day, the next
succeeding Business Day), commencing on
August 15, 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 (b) or (c) of the definition
in Section 1.1 of the Underlying
Securities Indenture, then the Trustee,
upon receiving notice of such event,
shall, on or immediately after the 30th day
after such event, direct the Market
Agent to sell the Underlying Securities and
a pro rata portion of the Related
Assets held by the Trust, in accordance
with the Sale Procedures, and the
Liquidation Proceeds, if any, shall be
divided between the Classes in accordance
with the Allocation Ratio and each Class'
portion shall be deposited into such
Class' Certificate Account and distributed
to such Class' Certificateholders pro
rata on the first Business Day following
such deposit into such Certificate
Account.
(b) If, prior to the day on which the Market Agent sells the
Underlying
Securities pursuant to paragraph (a) above,
there occurs (and the trustee
receives notice of such occurrence) an
acceleration of the Underlying Securities
and the Underlying Securities are declared
to be immediately due and payable in
accordance with the Underlying Securities
Indenture, and the Underlying
Securities Issuer:
(i) makes full payment of all amounts when due, and such
payment
exceeds the sum
of (x) the aggregate stated amount of the Class A
Certificates
plus any accrued and unpaid distributions to the date of
payment and (y)
the sum of the present values, discounted at the rate of
6.345% per year,
of the unpaid payments due, or to become due, in respect
of the Class B
Payments to be made on the Class B Certificates on or after
the date of
payment (assuming, for purposes of such calculation, that the
Underlying
Securities would have been paid in full on February 15, 2034,
that such
acceleration had not occurred, and that no portion thereof
would
have been
redeemed prior to February 15, 2034) 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
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of such
acceleration proceeds, distribute from such acceleration
proceeds
the following
amounts:
(A) the Class A Call Price or the Class B Call Price per
Certificate, as applicable, shall be distributed from such payment
on
account of
each Certificate called from the holder thereof (which
holders, pursuant to Section 2.02(d) of the Warrant Agreement,
shall
exclude Certificateholders to whom Delivery Certificates (as
defined
in the Warrant Agreement) were delivered in accordance with
Section
2.02(d) of the Warrant Agreement),
(B) for each Class A Certificate, $25.00 plus any accrued and
unpaid interest on such Class A Certificate to that date of
payment,
or, for
each Class B Certificate, the sum of the present values,
discounted at the rate of 6.345% per annum, of the unpaid
distributions that were due, or to become due, in respect of the
Class
B Payments to be made on such Class B Certificate on or after the
date
of payment (assuming, for purposes of such calculation, that
the
Underlying Securities would have been paid in full on February
15,
2034, and that such acceleration had not occurred, and that no
portion
thereof would have been redeemed prior to February 15, 2034),
as
applicable, shall be distributed from such payment on account of
each
Certificate held by Certificateholders to whom Delivery
Certificates
were delivered in accordance with Section 2.02(d) of the
Warrant
Agreement, and
(C) any amounts remaining shall be divided between the Classes
in
accordance with the Allocation Ratio and each Class' portion shall
be
distributed pro rata among the Call Holders that are deemed to
have
exercised their Call Rights automatically pursuant to this clause
with
respect to that Class and the Certificateholders of that Class to
whom
Delivery Certificates were delivered in accordance with Section
2.02(d) of the Warrant Agreement;
If the payment to be made by the Underlying Securities Issuer
does not exceed the threshold set forth above, the Trustee
shall
divide the amount of such payment between the Trust Certificate
Classes in accordance with the Allocation Ratio and distribute
each
Class's portion of such amounts pro rata to the Trust
Certificateholders of that Class.
(ii) makes a partial payment of all amounts when due, then the
Trustee, upon
receiving such payment, shall:
(A) immediately divide such payment between the Classes in
accordance with the Allocation Ratio and deposit each Class'
portion
of such payment into that Class' Certificate Account for
distribution
to such Class' Certificateholders pro rata on the first Business
Day
following such deposit into such Certificate Account; provided,
that
if the Underlying Securities Issuer places any condition,
restriction
or obligation on the acceptance of such partial payment including
but
not limited to a waiver of any right granted to a holder of the
Underlying
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Securities, such partial payment will be rejected by the Trustee
and
no deposit will be made into the Certificate Account,
(B) divide a principal amount of the Underlying Securities
equal
to the aggregate stated amount of the outstanding Class A
Certificates
between the Classes in accordance with the Allocation Ratio and
distribute each Class' portion of the Underlying Securities to
such
Class' Certificateholders pro rata and divide a pro rata portion
of
the Related Assets between the Classes in accordance with the
Allocation Ratio and distribute each Class' portion of such
Related
Assets to such Class' Certificateholders pro rata to each
Certificateholder's last address as it appears in the
Certificate
Register within three Business Days of receiving said notice,
and
(C) if any Underlying Securities are not distributed pursuant
to
clause (B), immediately direct the Market Agent to sell all
Underlying
Securities not so distributed and a pro rata portion of the
Related
Assets held by the Trust, in accordance with the Sale Procedures,
and
the Liquidation Proceeds, if any, shall be divided between the
Classes
in accordance with the Allocation Ratio and each Class' portion
shall
be deposited into such Class' Certificate Account and distributed
to
such
Class' Certificateholders pro rata on the first Business Day
following such deposit into such Certificate Account; or
(iii) fails to make such payment when due, then the Trustee,
upon
receiving notice
of such failure to make payment, shall:
(A) divide a principal amount of Underlying Securities equal to
the aggregate stated amount of the outstanding Class A
Certificates
and a pro rata portion of the Related Assets in accordance with
the
Allocation Ratio between the Classes in accordance with the
Allocation
Ratio and distribute each Class' portion to such Class'
Certificateholders pro rata to each Certificateholder's last
address
as it appears in the Certificate Register within three Business
Days
of receiving said notice, and
(B) if any Underlying Securities are not distributed pursuant
to
clause (A), immediately direct the Market Agent to sell all
Underlying
Securities not so distributed and a pro rata portion of the
Related
Assets held by the Trust, in accordance with the Sale Procedures,
and
the Liquidation Proceeds, if any, shall be divided between the
Classes
in accordance with the Allocation Ratio and each Class' portion
shall
be deposited into such Class' Certificate Account and distributed
to
such Class' Certificateholders pro rata on the first Business
Day
following such deposit into such Certificate Account.
(c) If the Underlying Securities Issuer of any Concentrated
Underlying
Securities ceases to be a reporting company
under the Exchange Act, and no
parent guarantor of such Underlying
Securities Issuer, if any, includes in its
Exchange Act reports condensed
consolidating financial statements setting forth
financial information for the Underlying
Securities Issuer, then the Trustee,
upon receiving notice of such event shall
(A) divide a
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principal amount of Underlying Securities
equal to the aggregate stated amount
of the outstanding Class A Certificates and
a pro rata portion of the Related
Assets in accordance with the Allocation
Ratio between the Classes in accordance
with the Allocation Ratio and distribute
each Class' portion to such Class'
Certificateholders pro rata to each
Certificateholder's last address as it
appears in the Certificate Register within
three Business Days of receiving said
notice, and (B) if any Underlying
Securities are not distributed pursuant to
clause (A), immediately direct the Market
Agent to sell all Underlying
Securities not so distributed and a pro
rata portion of the Related Assets held
by the Trust, in accordance with the Sale
Procedures, and the Liquidation
Proceeds, if any, shall be divided between
the Classes in accordance with the
Allocation Ratio and each Class' portion
shall be deposited into such Class'
Certificate Account and distributed to such
Class' Certificateholders pro rata
on the first Business Day following such
deposit into such Certificate Account.
(d) Upon receiving (A) notice of an acceleration of the
Underlying
Securities and the Underlying Securities
Issuer's partial payment of all amounts
when due as described in subsection (ii) of
clause (b) above, or (B) notice of
the events set forth in clause (c) above,
the Trustee shall, 10 days prior to
the exercise of any remedy, provide written
notice of the termination of the
Trust to the Call Holders. Notwithstanding
subsection (ii) of clause (b) and
clause (c), the Trustee shall not
distribute any such partial payment,
Underlying Securities or Related Assets to
any Certificateholders before the
earlier of (i) the expiration of the 10-day
notice of termination period, and
(ii) receipt by the Trust of notice of all
Call Holders' election to exercise
their Class A Call Right or Class B Call
Right, as applicable. If less than all
outstanding Class A Call Rights or Class B
Call Rights are exercised, upon
receiving such notice of election, the
Trustee shall select by lot (or by such
other reasonable procedure as may be
established by the Trustee) for purchase by
such exercising Call Holders in the case of
Class A Certificates the stated
amount of Class A Certificates equal to the
stated amount of Class A Call Rights
being exercised multiplied by the aggregate
stated amount of the outstanding
Class A Certificates not subject to
Delivery Certificates divided by the
aggregate stated amount of the outstanding
Class A Call Rights or, in the case
of Class B Certificates, the aggregate
notional principal amount of Class B
Certificates equal to the aggregate
notional principal amount of Class B Call
Rights being exercised multiplied by the
aggregate notional principal amount of
the outstanding Class B Certificates not
subject to Delivery Certificates
divided by the aggregate notional principal
amount of the outstanding Class B
Call Rights. The Certificateholders of the
Trust Certificates to be purchased
shall not be entitled to any right other
than the right to receive payment of an
amount equal to the applicable Call Price
on the date the applicable Call Rights
are exercised, and such Trust Certificates
shall be deemed to have been
automatically surrendered by the
Certificateholders to the Trust for further
transfer to the exercising Call Holders.
The share of the payment, Underlying
Securities and Related Assets to be
distributed with respect to such called
Trust Certificates shall be distributed to
the exercising Call Holders. In the
case of a sale by the Market Agent of
Underlying Securities and Related Assets
pursuant to clause (a) above, the Trustee
shall deliver such Underlying
Securities and Related Assets to the
purchaser of such Underlying Securities and
Related Assets only against payment in same
day funds and the Trustee shall
deposit the same into the Certificate
Account.
"Eligible Investments": As defined in the Standard Terms;
provided,
however, that (i) the minimum required
rating for long-term instruments will be
equal to the lower of the rating of the
Underlying Securities or the Trust
Certificates, and (ii) the rating of any
short-term
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instruments will be A-1+ by S&P and P1
by Moody's; and provided, further, that
any such investment matures no later than
the Business Day prior to the next
succeeding Distribution Date.
"Escrow Agent": As will be set forth in the Escrow Agreement.
"Escrow Agreement": The escrow agreement to be entered into on
the
Exercise Date among a given Call Holder,
the Trustee and the Escrow Agent
pursuant to Section 14(c)(iii)(2)
hereof.
"Event of Default": (i) A default in the payment of any interest on
any
Underlying Security after the same becomes
due and payable (subject to any
applicable grace period), (ii) a default in
the payment of the principal of or
any installment of principal of any
Underlying Security when the same becomes
due and payable and (iii) any other event
specified as an event of default in
the Underlying Securities Indenture. For a
summary of certain events of default
in the Underlying Securities Indenture,
please refer to the Prospectus
Supplement. For greater certainty, a
deferral of payment of any interest on the
Underlying Security as in accordance with
the terms of the Underlying Securities
Indenture is not a default in the payment
of any interest on any Underlying
Security after the same becomes due and
payable for the purposes of clause (i)
above.
"Exercise Date": any date on which a Call Holder notifies the
Trustee
of its intention to exercise its Call Right
in accordance with the provision of
Section 14(c)(iii), any date a Call Holder
is deemed to have exercised its Call
Right pursuant to Section 2.02(i)(iv) of
the Warrant Agreement, or any date
following the acceleration of the
Underlying Securities and payment in full of
all amounts when due by the Underlying
Securities Issuer.
"Final Scheduled Distribution Date": February 15, 2034 (or if such
date
is not a Business Day, the next succeeding
Business Day).
"Fixed Pass-Through Rate": With respect to the Class A
Certificates,
6.25% per annum and with respect to the
Class B Certificates, 0.095% 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 EDGAR
format the periodic reports required
for the Trust under the Exchange Act, shall
be fixed at $2,000 per annum.
"Pass-Through Rate": For each Class of Certificates, the
associated
Fixed Pass-Through Rate.
"Prepaid Ordinary Expenses": Zero (0).
"Prospectus Supplements": The Prospectus Supplement dated April
21,
2004 relating to the Class A Certificates
and the Prospectus Supplement dated
April 22, 2004 relating to the Class B
Certificates.
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"Rating Agency": Moody's and S&P.
"Record Date": The Business Day immediately preceding each
Distribution
Date.
"Series": PPLUS Trust Series GSC-1.
"Underlying Securities": The $50,000,000 aggregate principal amount
of
6.345% Capital Securities due 2034 issued
by the Underlying Securities Issuer,
as described in Schedule I hereto.
"Underlying Securities Indenture": As set forth in Schedule I.
"Underlying Securities Issuer": Goldman Sachs Capital I, a
Delaware
statutory trust.
"Underlying Securities Prospectus Supplement": The prospectus
supplement dated July 12, 2002 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 April 26,
2004,
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"
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"Notional Amount"
"Reserve Account"
"Requisite Reserve Amount"
"Retained Interest"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. (a) The Trust
created
hereby shall be known as the "PPLUS Trust
Series GSC-1". The Class A
Certificates and Class B Certificates
evidencing certain undivided ownership
interests therein shall be known as the
"PPLUS Class A 6.25% Trust Certificates
Series GSC-1" and the "PPLUS Class B 0.095%
Trust Certificates Series GSC-1,"
respectively.
(b) The Class A Certificates and Class B Certificates shall be
held
through the Depository in book-entry form
and shall be substantially in the form
attached hereto as Exhibits B and C,
respectively. The Class A Certificates
shall be issued in authorized denominations
of $25 and integral multiples
thereof and the Class B Certificates shall
be issued with a notional principal
amount of $25 and integral multiples
thereof. Except as provided in the Standard
Terms, the Trust shall not issue additional
Certificates or incur any
indebtedness; provided, however, from time
to time, upon obtaining prior written
confirmation by each Rating Agency that
such action will not result in a
downgrading or withdrawal of its rating of
the Certificates, the Depositor may,
without the consent of the
Certificateholders, increase the amount of the
Underlying Securities in the Trust and the
Trust may issue a corresponding
amount of additional Certificates in
accordance with Section 5.12(a) of the
Standard Terms except that clauses (v),
(vi) and (vii) of Section 5.12(a) shall
not apply to this Series and a
corresponding number of additional Warrants in
accordance with Article I of the Warrant
Agreement.
(c) The Class A Certificates will be entitled to receive (i) on
each
Distribution Date, commencing on August 15,
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, distributions at a
rate of 6.25% per annum on the stated
amount of the Class A
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Certificates and (ii) on the Final
Scheduled Distribution Date, a distribution
of the aggregate principal amount of the
Underlying Securities.
(d) On each Distribution Date, the Class B Certificates will be
entitled to receive a distribution of
0.095% per annum multiplied by the
notional principal amount of the Class B
Certificates (the "Class B Payments").
(e) Any reference to the principal amount of the Certificates shall
be
construed as a reference to the stated
amount of the Class A Certificates and/or
the notional principal amount of the Class
B Certificates, unless otherwise
indicated.
Section 4. Satisfaction of Conditions to Initial Execution and
Delivery
of Trust Certificates. The Trustee hereby
acknowledges receipt, on or prior to
the Closing Date, of:
(i) the Underlying Securities set forth on Schedule I hereto;
and
(ii) all documents set forth in Section 5.12 of the Standard
Terms
except that
clauses (v), (vi) and (vii) of Section 5.12(a) shall not apply
to this
Series.
Section 5. Distributions. (a) On each Distribution Date, the
Trustee
shall apply the funds in the Certificate
Account, solely to the extent of
Available Funds in the Certificate Account,
as follows:
(i) first, to the Trustee, reimbursement for any approved
Extraordinary
Trust Expenses incurred by the Trustee in accordance with
Section 6(b)
hereof and approved by not less than 100% of the
Certificateholders;
(ii) second, pro rata to the holders of the Class A Certificates
and
Class B
Certificates, distributions accrued during the related
Collection
Period at the
rate of 6.25% per annum on the stated amount of the Class A
Certificates to
holders of the Class A Certificates on such Distribution
Date and 0.095%
per annum multiplied by the notional principal amount of
Class B
Certificates to holders of the Class B Certificates on such
Distribution
Date, commencing on August 15, 2004 and ending on the Final
Scheduled
Distribution Date;
(iii) third, divided between the Classes in accordance with the
proportionate
interest of each Class in any delayed interest payments on
the Underlying
Securities (e.g., 6.25/6.345 to the Class A
Certificateholders and 0.095/6.345 to the Class B
Certificateholders) and
each Class'
portion distributed to the holders of each Class pro rata, if
available, any
additional payments paid by the Underlying Securities Issuer
as a result of a
delay in the receipt by the Trustee of any interest
payment on the
Underlying Securities;
(iv) fourth, pro rata
to the Class A Certificateholders, on the Final
Scheduled
Distribution Date only, a distribution of the aggregate
principal
amount of the
Underlying Securities;
12
<PAGE>
(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 Merrill Lynch 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 Merrill
Lynch & 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
Merrill Lynch & Co. or any of its
Affiliates, other than the Depositor, or any
other Person exercising an optional
exchange pursuant to Section 7 hereof, as
the case may be, Underlying Securities in
accordance with Section 7 hereof.
Section 6. Trustee's Fees; Escrow Agent's Fees. (a) Payment to
the
Trustee of Ordinary Expenses shall be as
set forth in a separate agreement
between the Trustee and the Depositor. The
Trustee agrees that in the event
Ordinary Expenses are not paid in
accordance with such agreement, it shall (i)
not have any claim or recourse against the
Trust or the property of the Trust
with respect thereto and (ii) continue to
perform all of its services as set
forth herein unless it elects to resign as
Trustee in accordance with Section
7.08 of the Standard Terms.
(b) Extraordinary Trust Expenses shall not be paid out of the
Deposited
Assets unless (i) the Trustee is satisfied
that it will have adequate security
or indemnity in respect of such costs,
expenses and liabilities, and (ii) all
the Certificateholders of Certificates then
outstanding have voted to require
the Trustee to incur such Extraordinary
Trust Expenses. If Extraordinary Trust
Expenses are not approved unanimously as
set forth in clause (ii), such
Extraordinary Trust Expenses shall not be
an obligation of the Trust, and the
Trustee shall not file any claim against
the Trust therefor notwithstanding
failure of Certificateholders to reimburse
the Trustee. In addition, if the
conditions in (i) and (ii) are not both
satisfied, the Trustee shall not be
obligated to incur any Extraordinary Trust
Expense.
(c) In the event that one or more Call Holders is required to
deposit
the applicable Call Price with the Escrow
Agent on the Exercise Date pursuant to
Section 14(c)(iii)(2) hereof, the Depositor
and the Escrow Agent shall enter
into an agreement reasonably acceptable to
both parties thereto whereby the
Depositor shall pay to the Escrow Agent a
fee in consideration for its services
under the Escrow Agreement or Escrow
Agreements, as applicable.
Section 7. Optional Exchange. (a) Merrill Lynch & Co. or any of
its
Affiliates (other than the Depositor), if
it holds Certificates, or any other
(i) Person or (ii) group of Affiliated
Persons (in each case other than the
Depositor) holding Class A Certificates
with an
13
<PAGE>
aggregate stated amount of $5 million or
more and an equal aggregate notional
principal amount of Class B Certificates,
all acquired pursuant to the exercise
of Class A Call Rights or Class B Call
Rights held by it, (provided that, in the
case of a group of Affiliated Persons, no
single Affiliated Person holds Class A
Certificates with an aggregate stated
amount of less than $500,000 and Class B
Certificates with a notional principal
amount of less than $500,000 acquired
pursuant to the exercise of Class A Call
Rights or Class B Call Rights, as
applicable, held by it) may notify the
Trustee, not less than 30 days but not
more than 60 days prior to any Optional
Exchange Date, that:
(i) such Person intends or Affiliated Persons intend to tender
an
Authorized
Denomination of Class A Certificates and an equal number of
Class B
Certificates that it holds or they hold to the Trustee on such
Optional
Exchange Date in exchange for a proportional amount of
Underlying
Securities;
(ii) such exchange will not cause the Trust or Depositor to fail
to
satisfy the
applicable requirements for exemption under Rule 3a-7 under the
Investment
Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of the
Trust
as a "grantor
trust" under the Code;
(iv) in the case of an exchange of less than all outstanding
Certificates,
such exchange will not cause a failure to satisfy the minimum
requirements for
the Class A Certificates to remain listed on the New York
Stock Exchange,
unless the Person 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 than Merrill
Lynch &
Co. or any of
its Affiliates (other than the Depositor), such exchange will
be made with
respect to an aggregate stated amount of Class A Certificates
equal to the
aggregate stated amount of Class A Certificates acquired by
such Person or
Affiliated Persons pursuant to the exercise of the
applicable Call
Rights held by it or them.
Upon tender of such Class A Certificates
and Class B Certificates on such
Optional Exchange Date, the Trustee will
deliver to the Person or Affiliated
Persons tendering such Certificates an
amount of Underlying Securities having a
principal amount equal to the aggregate
principal amount of Underlying
Securities then held by the Trust times the
aggregate stated amount of Class A
Certificates being tendered divided by the
aggregate stated amount of Class A
Certificates then outstanding, and in the
case of an exchange by Merrill Lynch &
Co. or any of its Affiliates, where such
Person or Affiliated Person holds
unexercised Class A Call Rights respecting
the exchanged Class A Certificates
and a corresponding number of unexercised
Class B Call Rights respecting the
exchanged Class B Certificates, such
unexercised Class A Call
14
<PAGE>
Rights and Class B Call Rights held by such
Person or Affiliated Person shall be
cancelled. Any Call Holder that has
properly provided notice of exercise to the
Warrant Agent and has deposited the Call
Price with the Escrow Agent may
concurrently designate an Optional Exchange
Date, and such Optional Exchange
Date shall be specified in the notice of
exercise, provided, however, that such
Optional Exchange Date shall not occur
prior to the applicable Call Date.
(b) When a tender offer for the Underlying Securities is
pending,
Merrill Lynch & Co. or any of its
Affiliates (other than the Depositor), if it
holds Certificates, or any other Person or
Affiliated Persons (other than the
Depositor, or an Affiliate of the Person
making such tender offer) holding Class
A Certificates with an aggregate stated
amount of $5 million or more and an
equal aggregate notional principal amount
of Class B Certificates, all acquired
pursuant to the exercise of the applicable
Call Rights held by it (provided
that, in the case of a group of Affiliated
Persons, no single Affiliated Person
holds Class A Certificates with an
aggregate stated amount of less than $500,000
and Class B Certificates with a notional
principal amount of less than $500,000
acquired pursuant to the exercise of Class
A Call Rights or Class B Call Rights,
as applicable, held by it), may notify the
Trustee, not less than 5 days but not
more than 60 days prior to any such
Optional Exchange Date as they may
designate, that:
(i) such Person intends or such Affiliated Persons intend to tender
an
Authorized
Denomination of Class A Certificates with an aggregate stated
amount of $5
million or more and a corresponding number of Class B
Certificates
that it holds or they hold to the Trustee on such Optional
Exchange Date in
exchange for a proportional amount of Underlying
Securities;
(ii) such exchange will not cause the Trust or Depositor to fail
to
satisfy the
applicable requirements for exemption under Rule 3a-7 under the
Investment
Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of the
Trust
as a "grantor
trust" under the Code,
(iv) in the case of an exchange of less than all outstanding
Certificates,
such exchange will not cause a failure to satisfy the minimum
requirements for
the Certificates to remain listed on the New York Stock
Exchange, unless
the Person or Affiliated Persons tendering such
Certificates
will hold all remaining outstanding Certificates upon
completion of
the exchange of such Certificates pursuant to this Section 7;
(v) such exchange will not be made with respect to Certificates
subject to
outstanding Call Rights held by any Person or Affiliated
Persons
other than the
Person or Affiliated Persons exercising such exchange; and
(vi) in the case of an exchange by a person other than Merrill
Lynch &
Co. or any of
its Affiliates (other than the Depositor), such exchange will
be made with
respect to an aggregate stated amount of Class A Certificates
equal to the
aggregate stated amount of Class A Certificates acquired by
such Person or
Affiliated Persons pursuant to the exercise of Call Rights
held by it or
them.
16
<PAGE>
Upon tender of such Class A Certificates
and Class B Certificates on such
Optional Exchange Date, the Trustee will
deliver to the Person or Affiliated
Persons tendering such Certificates an
amount of Underlying Securities having a
principal amount equal to the aggregate
principal amount of Underlying
Securities then held by the Trust times the
aggregate stated amount of Class A
Certificates being tendered divided by the
aggregate stated amount of Class A
Certificates then outstanding, and in the
case of an exchange by Merrill Lynch &
Co. or any of its Affiliates, where such
Person or Affiliated Person holds
unexercised Class A Call Rights respecting
the exchanged Class A Certificates
and a corresponding number of unexercised
Class B Call Rights respecting the
exchanged Class B Certificates, such
unexercised Class A Call Rights and Class B
Call Rights held by such Person or
Affiliated Person shall be cancelled.
(c) The requirements set forth in paragraphs (a)(ii), (a)(v)
and
(a)(vi) of Section 4.07 of the Standard
Terms do not apply to an Optional
Exchange pursuant to this Section 7.
(d) Any costs associated with the exercise of the rights granted
under
paragraphs (a) and (b) of this Section 7
will be borne by the Person or
Affiliated Persons exercising such rights
and not by the Trust.
(e) In no event can an Optional Exchange be made unless an equal
number
of Class A and Class B Certificates are
tendered for exchange by each Holder
exercising this Optional Exchange
right.
Section 8. Events of Default. Within 30 days of its receipt of
notice
of the occurrence of an Event of Default,
the Trustee will give notice to the
Certificateholders, transmitted by mail, of
all such uncured or unwaived Events
of Default actually known to it. However,
unless there is an Event of Default
relating to the payment of principal of or
interest on any of the Underlying
Securities, the Trustee will be protected
in withholding such notice if in good
faith it determines that the withholding of
such notice is in the interest of
the Certificateholders; provided, however,
that the Trustee shall give notice of
an Event of Default to the extent required
under "Distribution Election."
Section 9. Miscellaneous. (a) The provisions of Section 4.04,
Advances,
of the Standard Terms shall not apply to
the Certificates.
(b) The Certificateholders shall not be entitled to terminate the
Trust
or cause the sale or other disposition of
the Underlying Securities; provided,
however, that Certificateholders holding
all, but not less than all, of the
outstanding Certificates may exercise their
rights under Section 13(b) with
respect to all such Certificates.
(c) If the Trustee has not received payment with respect to a
Collection Period on the Underlying
Securities on or prior to the related
Distribution Date, such distribution will
be made promptly upon receipt of such
payment. No additional amounts shall accrue
on the Certificates or be owed to
Certificateholders as a result of such
delay; provided, however, that any
additional interest owed and paid by the
Underlying Securities Issuer as a
result of such delay shall be paid to the
Class A Certificateholders and Class B
Certificateholders, proportionately to the
ratio of their respective
entitlements to interest payments.
16
<PAGE>
(d) The outstanding principal balance of the Class A Certificates
and
the aggregate notional principal amount of
the Class B Certificates shall not be
reduced by the amount of any Realized
Loss.
(e) The Trust may not engage in any business or activities other
than
in connection with, or relating to, the
holding, protecting and preserving of
the Deposited Assets and the issuance of
the Certificates and Call Rights, and
other than those required or authorized by
the Trust Agreement or incidental and
necessary to accomplish such activities.
The Trust may not issue or sell any
certificates or other obligations other
than the Certificates and Call Rights,
or otherwise incur, assume or guarantee any
indebtedness for money borrowed.
(f) The Trust may not consolidate, amalgamate, merge with or into,
or
be replaced by or convey, transfer or lease
its properties and assets
substantially as an entirety to, any
another entity or permit any other entity
to consolidate, amalgamate, merge with or
into, or replace the Trust.
(g) Except as expressly provided in the Trust Agreement, the Trust
may
not sell the Underlying Securities.
(h) If the Trustee resigns or is removed as Trustee in accordance
with
Section 7.08 of the Trust Agreement, in
addition to providing the Depositor with
written notice, the Trustee shall also
provide the Rating Agencies with written
notice.
(i) Merrill Lynch & Co. shall act as the Market Agent and shall
serve
in such capacity in accordance with the
terms of the Market Agent Agreement
attached hereto as Exhibit D.
(j) Notwithstanding anything in the Trust Agreement to the
contrary,
the Trustee may be removed upon 60 days
prior written notice delivered by
Certificateholders holding Certificates
that represent the Required
Percentage-Removal, and such removal shall
take effect upon the appointment of a
successor Trustee and its acceptance of
such appointment as provided in the
Trust Agreement.
Section 10. Notices. (a) All directions, demands and notices
hereunder
or under the Standard Terms shall be in
writing and shall be delivered as set
forth below (unless written notice is
otherwise provided to the Trustee).
If to the Depositor, to:
Merrill Lynch Depositor, Inc.
c/o Merrill Lynch & Co.
World Financial Center
New York, NY 10080
Attention: Michael F.
Connor
Telephone: (212)
449-2401
Facsimile: (212)
449-9054
17
<PAGE>
If to the Trustee, to:
The Bank of New York
Corporate Trust Dealing & Trading Group
101 Barclay Street, Floor 8E
New York, NY 10286
Attention: PPLUS Trust
Series GSC-1
Telephone: (212)
815-2915
Facsimile: (212)
815-2380
If to the Securities
Intermediary, to:
The Bank of New York
Corporate Trust Dealing & Trading Group
101 Barclay Street, Floor 8E
New York, NY 10286
Attention: PPLUS Trust
Series GSC-1
Telephone: (212)
815-2915
Facsimile: (212)
815-2380
If to the Warrant Agent, to
The Bank of New York
Corporate Trust Dealing & Trading Group
101 Barclay Street, Floor 8E
New York, NY 10286
Attention: PPLUS Trust
Series GSC-1
Telephone: (212)
815-2915
Facsimile: (212)
815-2380
If to the Rating Agencies, to:
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Attention: CBO/CLO
Monitoring Department
Telephone: (212)
553-1494
Facsimile: (212)
553-0355
and to:
Standard & Poor's
55 Water Street, 41st Floor
New York, NY 10041
Attention: Structured
Finance Surveillance Group
Telephone: (212)
438-2482
18
<PAGE>
Facsimile: (212)
438-2664
(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
on February 15, 2034 or sale by the
Trust after a payment default on the
Underlying Securities and the distribution
in full of all amounts due to the
Certificateholders, (ii) the distribution to
the Certificateholders of all Underlying
Securities in accordance with the
Distribution Election, (iii) the exchange
of all outstanding Certificates for
Underlying Securities pursuant to one or
more Optional Exchanges, (iv) the Final
Scheduled Distribution Date and (v) the
holders of all, but not less than all,
of the Certificates exercising their
election in Section 13(b) below.
(b) Certificateholders who hold all, but not less than all, of
the
outstanding Certificates may, upon prior
written notice to the Rating Agencies,
elect to terminate the Trust at any time;
provided that (i) the exercise of such
termination right would not cause the Trust
or the Depositor to fail to satisfy
the applicable requirements for exemption
under Rule 3a-7 under the Investment
Company Act of 1940, as amended and (ii) if
and for so long as the call warrants
remain outstanding, all of the Call Holders
have consented to such termination.
(c) To the extent that the provisions of this Section 13 conflict
with
Section 10.01 of the Standard Terms, the
latter shall control.
Section 14. Sale or Redemption of Underlying Securities; Call
Right
(a) In the case of Extraordinary Trust Expenses approved by 100% of
the
Certificateholders of each Class, pursuant
to Section 6(b) hereof, the Trustee
may, upon prior written notice to the
Rating Agencies, elect to sell all or a
portion of the Underlying Securities to pay
such Extraordinary Trust Expenses.
(b) As a holder of the Underlying Securities, the Trust may
receive
redemption proceeds (the "Redemption
Amount") upon the redemption of the
Underlying Securities, in whole or in part,
by the Underlying Securities Issuer
pursuant to the Underlying Securities
Indenture and the Underlying Securities
Prospectus Supplement (provided that, as
described in the Prospectus Supplement,
no partial redemption of the Underlying
Securities may take place during a
period when distributions are deferred).
(i) Upon the redemption of the
Underlying Securities in whole, but not in
part, (A) on February 15, 2034 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
19
<PAGE>
rata to the holders of the Underlying
Securities, including the Trust. Upon
receiving such Redemption Amount, the Trust
shall distribute the Redemption
Amount first, pro rata to the Class A
Certificateholders until each shall have
received the stated amount of each Class A
Certificate it holds plus accrued and
unpaid distributions on the Class A
Certificates to the Redemption Date; second,
pro rata to the Class B Certificateholders
until each shall have received the
sum of the present values (discounted at
the rate of 6.345% per annum) of the
Class B Payments on or after the Redemption
Date (assuming, for purposes of such
calculation, that the Underlying Securities
would have been paid in full on
February 15, 2034 with no such redemption
or acceleration); and third, any
remaining Redemption Amount will be divided
between the Classes of trust
certificates in accordance with a
percentage equal to 6.25/6.345 of such amount
to the Class A Certificateholders and
0.095/6.345 of such amount to the Class B
Certificateholders, and within each class
the Redemption Amount will be
distributed pro rata to the
Certificateholders of the Class A or Class B
Certificates entitled to such Redemption
Amount upon the date such Redemption
Amount is received in immediately available
funds by the Trust if such
Redemption Amount is received prior to 1:00
p.m. local time at the office of the
Trustee and otherwise on the next Business
Day. (ii) Upon any redemption of the
Underlying Securities in part at the option
of the Underlying Securities Issuer
upon at least 30 days, but not more than 60
days, prior notice pursuant to the
Underlying Securities Indenture, the
Redemption Amount will be distributed pro
rata to the holders of the Underlying
Securities, including the Trust. Upon any
such redemption in part, the Trustee shall
select by lot (or by such other
reasonable procedure as may be established
by the Trustee) a stated amount of
Class A Certificates and an equal notional
principal amount of Class B
Certificates equal to the aggregate amount
of each Class of Certificates then
outstanding multiplied by the aggregate
principal amount of Underlying
Securities subject to redemption and then
held by the Trust divided by the
aggregate principal amount of Underlying
Securities then held by the Trust;
provided that the amount of each Class of
Trust Certificates being selected by
lot may be reduced by the aggregate stated
amount of Class A Certificates or
notional principal amount of Class B
Certificates, as applicable, called
pursuant to the exercise of Call Rights
prior to such redemption in accordance
with the terms of the Warrant Agreement.
Upon receiving such Redemption Amount,
the Trust shall distribute the Redemption
Amount, first, pro rata to the Class A
Certificateholders selected by lot pursuant
to this subsection until each shall
have received the stated amount of each
Class A Certificate it holds plus
accrued and unpaid distributions on the
Class A Certificates to the Redemption
Date; second, pro rata to the Class B
Certificateholders selected by lot
pursuant to this subsection until each
shall have received the sum of the
present values (discounted at the rate of
6.345% per annum) of the Class B
Payments on or after the Redemption Date
(assuming for purposes of such
calculation, that the Underlying Securities
would have been paid in full on
February 15, 2034 with no such redemption
or acceleration); and third, any
remaining Redemption Amount will be divided
between the Classes of trust
certificates in accordance with a
percentage equal to 6.25/6.345 of such amount
to the Class A Certificateholders and
0.095/6.345 of such amount to the Class B
Certificateholders, and within each class
the Redemption Amount will be
distributed pro rata to the
Certificateholders of the Class A or Class B
Certificates. Such Redemption Amount will
be distributed to the Class A and
Class B Certificateholders entitled to such
Redemption Amount upon the date such
Redemption Amount is received in
immediately available funds by the Trust if
such Redemption Amount is received prior to
1:00 pm local time at the office of
the Trustee and otherwise on the next
Business Day. Upon distribution of the
Redemption Amount by the Trustee, the Trust
Certificates called
20
<PAGE>
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 Class A Certificates and the
aggregate notional principal amount of
the outstanding Class B Certificates shall
be reduced by the aggregate stated
amount of such Class A Certificates and the
aggregate notional principal amount
of such Class B Certificates, as
applicable; provided that the right of a
Certificateholder to receive the Call Price
will not be affected by any such
deemed surrender. Payment of the Redemption
Amount with respect to the
Certificates will be made to the Call
Holder exercising the Call Rights.
(c) The Call Terms are as follows:
(i) The initial holders of the Call Rights are as named in the
Call
Warrants and
such holders may transfer the Call Rights, in whole or in
part, to one or
more third parties in privately negotiated transactions;
(ii) A Call Holder that has met the exercise requirements set forth
in
paragraph
(c)(iii) of this Section 14 may, on the Call Date, exercise its
option to
purchase, in whole or in part, a principal or notional amount
of
Class A or Class
B Certificates, as applicable, proportionate to such Call
Holder's
exercised Call Warrants, in Authorized Denominations of the
Class
A or Class B
Certificates at the Class A Call Price or Class B Call Price,
as
applicable;
(iii) In order to exercise its Call Right on a Call Date, a
Call
Holder must, not
less than 30 days (or not less than three days in the case
of an
announcement of any redemption of the Underlying Securities or
other
unscheduled
payment of the Underlying Securities or after receipt of notice
of termination
of the Trust or not less than five Business Days prior to
the expiration
of a tender offer for the Underlying Securities) but not
more than 60
days prior to such Call Date:
(1) notify the Trustee in writing of its intention to exercise
such Call Right (which notice is irrevocable, subject to
Section
2.02(i)(v) of the Warrant Agreement) and whether such exercise is
in
connection with a tender offer for the Underlying Securities. In
the
event that such notice is provided in connection with a tender
offer
for the Underlying Securities, if the exercising Holder did not
receive from the Warrant Agent notice of a Tender Offer, then
such
Holder shall also provide the Warrant Agent with any information
the
Holder may have from a third-party source indicating that such
Tender
Offer is pending.
(2) deposit the applicable Call Price with the Escrow Agent
(the
"Escrow Deposit") to be held in escrow pursuant to an Escrow
Agreement
reasonably satisfactory to the Trustee and substantially in the
form
attached hereto as Exhibit E (to be entered into immediately
preceding
delivery of the applicable Call Price by such Call Holder to
the
Escrow Agent) until such Call Price is paid by the Trustee to
the
Certificateholders in accordance with paragraph (d) of this Section
14
or returned to the exercising Holders pursuant to subsection (i)
of
Section 2.02 of the Warrant Agreement; provided, that if (a) all
of
the outstanding Trust Certificates of a given Class are to be
purchased pursuant to the exercise of
21
<PAGE>
the Warrants on an Exercise Date and the exercising Call Holder
at
such time holds Class A Certificates or Class B Certificates that
are
subject to Call Rights, the Call Holder may deposit such Class
A
Certificates or Class B Certificates with the Escrow Agent in lieu
of
the portion of the Call Price that would relate thereto, and (b)
if
less than all of the outstanding Class B Trust Certificates are to
be
purchased pursuant to the exercise of the Warrants on an Exercise
Date
and the exercising Call Holder at such time holds Class B
Certificates
that are subject to Call Rights, the Call Holder may deposit
such
Class B Certificates with the Escrow Agent in lieu of the portion
of
the
Call Price that would relate thereto.
(3) provide the Trustee with any other documents customary for
a
transaction of this nature, including a certificate of the Call
Holder
certifying the solvency of such Call Holder on such date;
provided
that the Call Holder need not provide any such solvency certificate
if
the rating of the senior, unsecured long-term debt of the Call
Holder,
or the Call Holder's credit support provider, if applicable, by
Moody's and S&P is in one of the investment grade categories
of
Moody's and S&P, respectively, on such date.
The provisions of this Section
14(c)(iii)(1) through (3) shall not apply if
Warrants are being exercised upon an
acceleration of the Underlying Securities
and payment in full by the Underlying
Securities Issuer of all amounts due upon
such acceleration.
(d) In connection with any exercise of the Call Rights to
purchase
Class A Certificates, the Trustee shall
select by lot (or by such other
reasonable procedure as may be established
by the Trustee) a stated amount of
the outstanding Class A Certificates to be
surrendered by the Class A
Certificateholders thereof to the Trustee
upon any such exercise (other than
Class A Trust Certificates held by any
Person to whom a Delivery Certificate was
delivered in accordance with Section
2.02(d) of the Warrant Agreement, as
evidenced by the registration of such
Delivery Certificate in the Delivery
Register in accordance with Section 4.01 of
the Warrant Agreement), deliver such
Class A Certificates to the exercising Call
Holder and the proceeds of the Class
A Call Price shall be distributed pro rata
among such Class A Certificateholders
on the Call Date in accordance with the
provisions of the Warrant Agreement. In
connection with any exercise of the Call
Rights to purchase Class B
Certificates, if the amount to be purchased
exceeds the amount of Trust
Certificates of such Class held by the Call
Holder and deposited with the Escrow
Agent, the Trustee shall select by lot (or
by such other reasonable procedure as
may be established by the Trustee) an
aggregate notional principal amount of the
outstanding Class B Certificates to be
surrendered by the Class B
Certificateholders thereof to the Trustee
upon any such exercise (other than
Class B Trust Certificates held by any
Persons to whom a Delivery Certificate
was delivered in accordance with Section
2.02(d) of the Warrant Agreement, as
evidenced by the registration of such
Delivery Certificate in the Delivery
Register in accordance with Section 4.01 of
the Warrant Agreement), deliver such
Class B Certificates to the exercising Call
Holder and the proceeds of the Class
B Call Price shall be distributed pro rata
among such Certificateholders on the
Call Date in accordance with the provisions
of the Warrant Agreement. Upon
distribution of the applicable Call Price,
the Trust Certificates called
pursuant to the exercise of Call Rights
shall be deemed to have been surrendered
and such Trust Certificates shall be
transferred to the Call Holder; provided
that the right of a Certificateholder to
receive the Call Price will not be
affected by any such deemed surrender.
22
<PAGE>
(e) The rights of the Certificateholders under the Trust Agreement
and
the Certificates are limited by the terms,
provisions and conditions of the
Trust Agreement and the Warrant Agreement
with respect to the exercise of the
applicable Call Rights by the Call Holder.
The Certificateholders, by their
acceptance of Certificates, covenant and
agree to tender any and all
Certificates to the Warrant Agent upon the
Call Holder's exercise of Call Rights
and deposit of the applicable Call Price
with the Escrow Agent for such
Certificates in accordance with the
applicable procedures in the Warrant
Agreement.
(f) Upon receipt of a notice of a tender offer for the
Underlying
Securities, the Trustee shall deliver
notice of the tender offer to the Warrant
Agent and holders of Delivery Certificates
(as defined in Section 2.02(d) of the
Warrant Agreement) within two Business Days
after receipt of notice from the
Tender Offeror (as defined in the Warrant
Agreement). Within two Business Days
of the expiration of the period for validly
delivering tender offer exercise
notices pursuant to Section 2.02(i)(i) of
the Warrant Agreement, the Trustee
shall, after giving effect to the exercise
of Call Rights with respect to Trust
Certificates already held by the Call
Holder, as set forth in the Warrant
Agreement, (A) select by lot (or by such
other reasonable procedure as may be
established by the Trustee), in the case of
Class A Certificates, a stated
amount of Class A Certificates equal to the
aggregate stated amount of Class A
Certificates not subject to Delivery
Certificates then outstanding multiplied by
the aggregate principal amount of Class A
Call Rights being exercised divided by
the aggregate principal amount of the
outstanding Class A Call Rights and, in
the case of Class B Certificates an
aggregate notional principal amount of Class
B Certificates equal to the aggregate
notional principal amount of Class B
Certificates not subject to Delivery
Certificates then outstanding multiplied by
the aggregate notional principal amount of
Class B Call Rights being exercised
divided by the aggregate notional principal
amount of the outstanding Class B
Call Rights and (B) notify the
Certificateholders of the selected Certificates
that, subject to Section 2.02(i) of the
Warrant Agreement, such Certificates
will be purchased on the Call Date. Upon
the Trustee's receipt of the tender
offer proceeds, the applicable Call Price
will be distributed pursuant to
Section 2.02(e) and Section 2.02(i)(vi) of
the Warrant Agreement pro rata to the
Certificateholders whose Certificates have
been purchased and the tender offer
proceeds will be distributed by the Trustee
pro rata to the exercising Call
Holders pursuant to Section 2.02(i) of the
Warrant Agreement. Upon distribution
of the applicable Call Price and tender
offer proceeds, the Trust Certificates
called pursuant to the exercise of Call
Rights shall be deemed to have been
surrendered for cancellation by the Trustee
and the aggregate stated amount of
the outstanding Trust Certificates shall be
reduced by the aggregate stated
amount of such Trust Certificates; provided
that the right of a
Certificateholder to receive the Call Price
will not be affected by any such
deemed surrender.
Section 15. Amendments. Notwithstanding anything in the Trust
Agreement
to the contrary, in addition to the other
restrictions on modification and
amendment contained herein, the Trustee
shall not enter into any amendment or
modification of the Trust Agreement that
would adversely affect in any material
respect the interests of the
Certificateholders or the Call Holders without the
consent of 100% of such Certificateholders
or Call Holders, as the case may be;
provided, however, that no such amendment
or modification will be permitted if
the Trustee has been advised by the
Depositor that such amendment or
modification would alter the status of the
Trust as a "grantor trust" for
federal income tax purposes. Further, no
amendment shall be permitted pursuant
to paragraphs (vi), (vii) and (x) of
Section 11.01(a) of the Standard
23
<PAGE>
Terms without prior written confirmation by
each Rating Agency that such
amendment will not result in a downgrading
or withdrawal of its rating of the
Certificates. The Trustee may consult with
counsel and shall be entitled to rely
upon an Opinion of Counsel for purposes of
determining compliance with the
provisions of this Section 15.
Section 16. Voting of Underlying Securities, Modification of
Indenture.
The Trustee, as holder of the Underlying
Securities, has the right to vote and
give consents and waivers in respect of the
Underlying Securities as permitted
by the Depository and except as otherwise
limited by the Trust Agreement. In the
event that the Trustee receives a request
from the Depository, the Underlying
Securities trustee or the Underlying
Securities Issuer for its consent to any
amendment, modification or waiver of the
Underlying Securities, the Underlying
Securities Indenture or any other document
thereunder or relating thereto, or
receives any other solicitation for any
action with respect to the Underlying
Securities, the Trustee shall mail a notice
of such proposed amendment,
modification, waiver or solicitation to
each Certificateholder of record as of
such date. The Trustee shall request
instructions from the Certificateholders as
to whether or not to consent to or vote to
accept such amendment, modification,
waiver or solicitation. The Trustee shall
consent or vote, or refrain from
consenting or voting, in the same
proportion (based on the relative outstanding
principal balances of the Certificates) as
the Certificates of the Trust were
actually voted or not voted by the
Certificateholders thereof as of a date
determined by the Trustee prior to the date
on which such consent or vote is
required after weighing the votes of the
Class A Certificateholders and the
Class B Certificateholders in accordance
with the Allocation Ratio; provided,
however, that, notwithstanding anything in
the Trust Agreement to the contrary,
the Trustee shall at no time vote on or
consent to any matter (i) unless such
vote or consent would not (based on an
Opinion of Counsel) alter the status of
the Trust as a "grantor trust" for federal
income tax purposes or result in the
imposition of tax upon the
Certificateholders, or (ii) that would alter the
timing or amount of any payment on the
Underlying Securities, including, without
limitation, any demand to accelerate the
Underlying Securities, except in the
event of a default under the Underlying
Securities or an event that with the
passage of time would become an event of
default under the Underlying Securities
and with the consent of 100% of the
Certificateholders and 100% of the Call
Holders, or (iii) except as provided in the
following paragraph, that would
result in the exchange or substitution of
any of the outstanding Underlying
Securities pursuant to a plan for the
refunding or refinancing of such
Underlying Securities except in the event
of a default under the Underlying
Securities Indenture and only with the
consent of 100% of the Certificateholders
and 100% of the Call Holders. The Trustee
shall have no liability for any
failure to act resulting from
Certificateholders' or Call Holders' late return
of, or failure to return, directions
requested by the Trustee from the
Certificateholders and Call Holders.
If an offer is made by the Underlying Securities Issuer to issue
new
obligations in exchange and substitution
for any of the Underlying Securities,
pursuant to a plan for the refunding or
refinancing of the outstanding
Underlying Securities or any other offer is
made for the Underlying Securities,
the Trustee shall notify the
Certificateholders, the Call Holders and the Rating
Agencies of such offer promptly. Subject to
Sections 7(b) and 14 in connection
with a tender offer and the exercise of
Call Rights or Optional Exchange rights,
the Trustee must reject any such offer
unless the Trustee is directed by the
affirmative vote of 100% of the
Certificateholders and 100% of the Call Holders
to accept such offer, the Trustee has
received the tax opinion described above
and if the Trustee is so directed, the
Trustee shall promptly
24
<PAGE>
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
GSC-1, acquiesce, petition or otherwise
invoke or cause the Trust to invoke the
process of the United States, any State
or other political subdivision thereof or
any entity exercising executive,
legislative, judicial, regulatory or
administrative functions of or pertaining
to government for the purpose of commencing
or sustaining a case by or against
the Trust under a Federal or state
bankruptcy, insolvency or similar law or
appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or
other similar official of such Trust or all
or any part of the property or
assets of such Trust or ordering the
winding up or liquidation of the affairs of
such Trust.
Section 20. Amendments to Standard Terms. Solely with respect to
the
Trust and the Series and for no other
purpose, the Standard Terms are hereby
amended as follows:
(a) Clause (iii) of Subsection (c) of Section 2.01 of the
Standard
Terms shall be deleted and replaced with
the following:
"at the time of delivery of the Underlying Securities, Depositor
owns
such Underlying Securities, has the right
to transfer its interest in such
Underlying Securities and such Underlying
Securities are free and clear of any
lien, pledge, encumbrance, right, charge,
claim or other security interest
(other than the lien created by this Trust
Agreement); and"
25
<PAGE>
(b) Subsection (e) of Section 2.01 of the Standard Terms shall
be
deleted and replaced with the
following:
"Any Trust created hereunder shall not engage in any business
or
activities other
than in connection with, or relating to, the holding,
protecting and
preserving of the Deposited Assets and the issuance of the
Certificates
and, if applicable, Call Rights, and other than those required
or authorized by
this Trust Agreement or incidental to and necessary to
accomplish such
activities. Any Trust created hereunder shall not issue or
sell any
certificates or other obligations other than the Certificates
or,
if applicable,
Call Rights or otherwise incur, assume or guarantee any
indebtedness for
money borrowed."
(c) Clause (v) of Subsection (b) of Section 4.08 of the Standard
Terms
shall be deleted and replaced with the
following:
"that Holders of Certificates receiving notice of Call Rights
being
exercised with
respect to the Certificates held by them shall not be
entitled to any
interest on the Certificates for any period on and after
the Call Date,
and the only remaining right of Holders of such Certificates
is to receive
payment of the Call Price upon surrender of the Certificates
to the Warrant
Agent; and"
(d)
The first sentence of subsection (d) of Section 4.08 of the
Standard Terms shall be deleted and
replaced with the following:
"Once such notice is mailed to a Holder, such Holder shall not
be
entitled to any
right as a Holder other than the right to receive payment
of the Call
Price on the Call Date and the Certificates subject to the Call
Right shall be
deemed to have been automatically surrendered to the Trust
for further
transfer to the holder exercising its Call Right."
(e) Subsection (e) of Section 4.08 of the Standard Terms shall
be
deleted and replaced with the
following:
"Subject to Section 2.02(a)(i) of the Warrant Agreement, at or
prior
to 12:00 noon on
the Call Date, the holder of the Call Right to be
exercised shall
deposit with the Escrow Agent by wire transfer in same-day
funds money
sufficient to pay the Call Price of the Certificates to be
purchased on
that date."
(f) Subsection (f) of Section 4.08 of the Standard Terms shall
be
deleted and replaced with the
following:
"This subsection has been intentionally left blank."
(g) Subsection (g) of Section 4.08 shall be deleted and replaced
with
the following:
"Upon surrender of any Certificate that is purchased in part,
the
Depositor shall
execute and the Trustee shall authenticate and deliver to
the Holder a new
Certificate equal in principal amount to the portion of
such surrendered
Certificate not purchased."
26
<PAGE>
[BLANK PAGE]
27
<PAGE>
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.
Merrill Lynch Depositor, Inc.,
as Depositor
By: /s/ Michael
F. Connor
----------------------------------------------
Name: Michael F.
Connor
Title: President
The Bank of New York,
not in its individual capacity
but as Trustee
By: /s/ Fernando
Acebedo
----------------------------------------------
Name: Fernando
Acebedo
Title: Authorized Signatory
The Bank of New York,
as Securities Intermediary
By: /s/ Fernando
Acebedo
----------------------------------------------
Name: Fernando
Acebedo
Title: Authorized Signatory
[SERIES SUPPLEMENT SIGNATURE PAGE]
<PAGE>
SCHEDULE I
PPLUS TRUST CERTIFICATES, SERIES GSC-1
UNDERLYING SECURITIES SCHEDULE
Underlying Securities:
$50,000,000 6.345% Capital Securities
due February 15, 2034 of the Underlying
Securities Issuer.
Underlying Securities Issuer:
Goldman Sachs Capital I, a Delaware
statutory trust.
Underlying Securities Guarantor:
Goldman Sachs Group,
Inc., a Delaware
corporation, which has fully and
unconditionally guaranteed the
the Underlying Securities Issuer's
obligation on the Underlying Securities
to the extent set forth in the
Prospectus Supplement relating to the
Underlying Securities.
Underlying Securities Indenture:
Amended and Restated Trust Agreement
dated as of January 21, 2004, among the
Underlying Securities Guarantor, the
Underlying Securities Issuer and the
Underlying Securities Trustee.
Underlying Securities Trustee:
The Bank of New York
Underlying Securities
38143VAA7
CUSIP Number:
Underlying Securities
February 20, 2004
Original Issue Date:
Underlying Securities
$2,750,000,000 6.345% Capital Securities
Original Amount Issued:
due 2034 (principal amount $1,000 per
security)
Underlying Securities
333-112367-04
Commission Filing Number:
Underlying Securities
None
Maturity Date:
Underlying Securities
February 15, 2034
Principal Payment Date:
Underlying Securities
February 15 and August 15, or if any
Interest Payment Dates:
such date is not a business day, then
the next succeeding business day to the
persons in whose names the Underlying
Securities are registered at the close
of business on the February 15 or August
15, respectively, immediately prior to
the relevant interest payment
<PAGE>
date, subject to certain exceptions.
Underlying Securities
6.345% per annum.
Interest Rate:
Underlying Securities
February 15 and August 15.
Record Dates:
Underlying Securities
The Underlying Securities Guarantor will
Redemption:
have
the option to redeem the Underlying
Securities, (i) as a whole or in part,
at its option at any time and from time
to time, provided that no partial
redemption may occur when distributions
are deferred, or (ii) as a whole but not
in part, at any time and from time upon
the occurrence of (a) changes in U.S.
income tax laws or regulations that
could have adverse tax consequences for
the Underlying Securities Issuer, or (b)
changes in laws or regulations that
pose more than an insubstantial risk
that the
Underlying Securities Issuer
will be required to register as an
"investment company" under the
Investment Company Act of 1940, in each
case, at a redemption price equal to the
total liquidation amount of the
Underlying Securities being redeemed,
plus accumulated but unpaid
distributions up to and including the
redemption date; and the related amount
of the Make-Whole Amount (as defined in
the Underlying Securities Indenture), if
any, in excess of the total liquidation
amount of the Underlying Securities
being redeemed, paid by the Underlying
Securities Guarantor on the concurrent
redemption of the underlying junior
subordinated debentures.
Underlying Securities
None.
Collateral:
Underlying Securities
None.
Amortization:
Underlying Securities
Semi-annual.
Accrual Periods:
Underlying Securities
The Underlying Securities are
Authorized Denomination
denominated and payable in U.S. dollars
and Specified Currency:
and are available in minimum
denominations of
$1,000 and integral
multiples thereof.
<PAGE>
Underlying Securities
"A1" by Moody's and "A-" by S&P.
Rating as of Closing:
Underlying Securities Form:
Book-entry security with DTC.
<PAGE>
EXHIBIT A
Standard Terms for Trust Agreements
(begins on next page)
<PAGE>
STANDARD TERMS FOR TRUST AGREEMENTS
between
MERRILL LYNCH DEPOSITOR, INC.,
as Depositor,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee and as Securities Intermediary
TRUST CERTIFICATES
Dated as of February 20, 1998
<PAGE>
Reconciliation and tie between the Standard Terms, dated as of
February 20, 1998, and the Trust Indenture
Act of 1939, as amended. This
reconciliation and tie does not constitute
part of the Standard Terms.
================================================================================
Trust Indenture Act
Standard
of 1939 Section
Terms Section
--------------------------------------------------------------------------------
310(a)(1)
7.07
--------------------------------------------------------------------------------
(a)(2)
7.07
--------------------------------------------------------------------------------
(a)(5)
7.07
--------------------------------------------------------------------------------
312(a)
7.14
--------------------------------------------------------------------------------
313(a)
7.16
--------------------------------------------------------------------------------
314(a)
3.10
--------------------------------------------------------------------------------
(c)(1)
1.03
--------------------------------------------------------------------------------
(c)(2)
1.03
--------------------------------------------------------------------------------
(e)
1.03
--------------------------------------------------------------------------------
315(a)(1)
7.01
--------------------------------------------------------------------------------
315(a)(2)
7.03
--------------------------------------------------------------------------------
315(b)
7.01(d)
--------------------------------------------------------------------------------
315(d)
7.01(c)
--------------------------------------------------------------------------------
316(a)(1)(A)
5.19
--------------------------------------------------------------------------------
(a)(1)(B)
5.20
--------------------------------------------------------------------------------
(b)
5.21
--------------------------------------------------------------------------------
(c)
1.03(b)
--------------------------------------------------------------------------------
317(a)(1)
5.18
--------------------------------------------------------------------------------
(b)
5.13
--------------------------------------------------------------------------------
318(a)
11.11
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
----
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
<S>
<C>
<C>
Section 1.01.
Definitions.................................................................
1
Section 1.02. Rules of
Construction.......................................................
19
Section 1.03. Compliance Certificates and
Opinions; Record Date........................... 20
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES;
PURPOSE AND CLASSIFICATION OF TRUSTS
Section 2.01. Creation and Declaration of
Trusts; Assignment of Deposited Assets.......... 21
Section 2.02. Acceptance by
Trustee.......................................................
23
Section 2.03. Representations and Warranties of
the Depositor............................. 23
Section 2.04. Breach of Representation, Warranty
or Covenant.............................. 24
Section 2.05. Agreement to Execute, Authenticate
and Deliver Certificates................. 25
Section 2.06. Custody and Holding of Deposited
Assets..................................... 25
ARTICLE III
ADMINISTRATION OF EACH TRUST
Section 3.01. Administration of Each
Trust................................................ 26
Section 3.02. Collection of Certain Underlying
Security Payments.......................... 27
Section 3.03. Certificate
Accounts........................................................
27
Section 3.04. Distribution or Sale of the
Underlying Securities........................... 28
Section 3.05. Investment of Funds in the
Accounts......................................... 29
Section 3.06. Maintenance of Credit
Support............................................... 30
Section 3.07. Realization upon Defaulted
Underlying Securities............................ 30
Section 3.08. Retained
Interest...........................................................
31
Section 3.09. Access to Certain
Documentation............................................. 31
Section 3.10. Reports by the
Depositor....................................................
31
Section 3.11. Charges and
Expenses........................................................
32
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.01.
Distributions...............................................................
32
Section 4.02. Distributions on
Certificates............................................... 33
Section 4.03. Reports to
Certificateholders...............................................
34
</TABLE>
<PAGE>
<TABLE>
<S>
<C>
<C>
Section 4.04.
Advances....................................................................
35
Section 4.05. Allocation of Realized Losses and
Trust Expenses............................ 36
Section 4.06. Compliance with Withholding
Requirements.................................... 36
Section 4.07. Optional
Exchange...........................................................
37
Section 4.08. Call
Right..................................................................
39
ARTICLE V
THE CERTIFICATES
Section 5.01. The
Certificates............................................................
41
Section 5.02. Execution, Authentication and
Delivery...................................... 42
Section 5.03. Temporary
Certificates......................................................
42
Section 5.04. Registration; Registration of
Transfer and Exchange......................... 43
Section 5.05. Mutilated, Destroyed, Lost and
Stolen Certificates.......................... 44
Section 5.06. Persons Deemed
Owners.......................................................
45
Section 5.07.
Cancellation................................................................
45
Section 5.08. Global
Securities...........................................................
46
Section 5.09. Notices to
Depository.......................................................
47
Section 5.10. Definitive
Certificates.....................................................
47
Section 5.11. Currency of
Distributions...................................................
49
Section 5.12. Conditions of Execution,
Authentication and Delivery of New Series.......... 49
Section 5.13. Appointment of Paying
Agent................................................. 51
Section 5.14. Authenticating
Agent........................................................
52
Section 5.15. Voting Rights with Respect to
Underlying Securities......................... 53
Section 5.16. Actions by
Certificateholders...............................................
54
Section 5.17. Events of
Default...........................................................
54
Section 5.18. Judicial Proceedings Instituted by
Trustee; Trustee May Bring Suit.......... 55
Section 5.19. Control by
Certificateholders...............................................
55
Section 5.20. Waiver of Past
Defaults.....................................................
55
Section 5.21. Right of Certificateholders to
Receive Payments Not to Be Impaired.......... 56
Section 5.22. Remedies
Cumulative.........................................................
56
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the
Depositor.................................................. 56
Section 6.02. Limitation on Liability of the
Depositor.................................... 56
Section 6.03. Depositor May Purchase
Certificates......................................... 57
Section 6.04. Merger or Consolidation of the
Depositor.................................... 58
Section 6.05. No Liability of the Depositor with
Respect to the Underlying
Securities; Certificateholders to Proceed Directly Against the
Underlying Securities
Issuer(s)...................................... 58
</TABLE>
<PAGE>
<TABLE>
ARTICLE VII
THE TRUSTEE
<S>
<C>
<C>
Section 7.01. Duties of
Trustee...........................................................
58
Section 7.02. Agreements Between Trustee and
Administrative Agents........................ 62
Section 7.03. Certain Matters Affecting the
Trustee....................................... 64
Section 7.04. Trustee Not Liable for Recitals in
Certificates or Underlying Securities.... 65
Section 7.05. Trustee May Own
Certificates................................................ 65
Section 7.06. Trustee's Fees and
Expenses................................................. 65
Section 7.07. Eligibility Requirements for
Trustee........................................ 66
Section 7.08. Resignation or Removal of the
Trustee; Appointment of Successor
Trustee..............................................................
67
Section 7.09. Appointment of Office or
Agency............................................. 68
Section 7.10. Representations and Warranties of
Trustee................................... 68
Section 7.11. Indemnification of Trustee by the
Depositor; Contribution................... 70
Section 7.12. No Liability of the Trustee with
Respect to the Underlying Securities;
Certificateholders to Proceed Directly Against the Underlying
Securities
Issuer(s)................................................. 71
Section 7.13. The Depositor to Furnish Trustee
with Names and Addresses of
Certificateholders...................................................
71
Section 7.14. Preservation of
Information................................................. 72
Section 7.15. Reports by
Trustee..........................................................
72
Section 7.16. Trustee's Application for
Instructions from the Depositor................... 72
ARTICLE VIII
MARKET AGENT
Section 8.01. Market
Agent................................................................
72
ARTICLE IX
SECURITIES INTERMEDIARY
Section 9.01. Resignation or Removal of the
Securities Intermediary; Appointment of
Successor Securities
Intermediary.................................... 73
ARTICLE X
TERMINATION
Section 10.01. Termination upon Liquidation of
All Underlying Securities................. 75
</TABLE>
<PAGE>
<TABLE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
<S>
<C>
<C>
Section 11.01.
Amendment..................................................................
76
Section 11.02. Limitation on Rights of
Certificateholders................................. 77
Section 11.03. Governing
Law..............................................................
79
Section 11.04.
Notices....................................................................
79
Section 11.05. Notice to Rating
Agencies.................................................. 80
Section 11.06. Severability of
Provisions................................................. 81
Section 11.07. Nonpetition
Covenant.......................................................
81
Section 11.08. No
Recourse................................................................
81
Section 11.09. Article and Section
References............................................. 81
Section 11.10.
Counterparts...............................................................
82
Section 11.11. Trust Indenture
Act........................................................ 82
</TABLE>
<PAGE>
STANDARD TERMS FOR TRUST AGREEMENTS dated as of February 20,
1998 between MERRILL LYNCH DEPOSITOR, INC.,
a Delaware corporation, as Depositor
(the "Depositor"), and UNITED STATES TRUST
COMPANY OF NEW YORK, a New York
corporation, as Trustee (in such capacity,
the "Trustee") and as securities
intermediary (in such capacity, the
"Securities Intermediary").
PRELIMINARY STATEMENT
The Depositor, the Trustee and the Securities Intermediary
have duly authorized the execution and
delivery of these Standard Terms for
Trust Agreements (the "Standard Terms") to
provide for one or more Series (and
one or more Classes within each such
Series) of Certificates, issuable from time
to time as provided in these Standard
Terms.
Each such Series (inclusive of any Classes specified within
such Series) will be issued under a
separate Supplement to these Standard Terms,
duly executed and delivered by the
Depositor, the Trustee and the Securities
Intermediary. With respect to each Series,
these Standard Terms and all
amendments hereof and, unless the context
otherwise requires, the related
Supplement and all amendments thereto shall
be known as the "Trust Agreement".
All representations, covenants and agreements made herein by
each of the Depositor, the Trustee and the
Securities Intermediary are for the
benefit and security of the Holders and, to
the extent provided in the
applicable Supplement, for the benefit and
security of any Credit Support
Provider or any other party as specified
therein.
The Depositor and the Securities Intermediary are entering
into these Standard Terms, and the Trustee
is accepting the trust created
hereby, for good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged.
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
Section 1.01. Definitions. Except as otherwise specified
herein or in the applicable Supplement or
as the context may otherwise require,
the following terms have the respective
meanings set forth below for all
purposes of this Trust Agreement.
"Account": As defined
in Section 3.05.
"Accounting Date": With respect to any Series, if applicable,
as defined in the related Supplement.
<PAGE>
2
"Administration Account": As defined in Section 7.02.
"Administrative Agent": Any Person with which the Trustee has
entered into an Administration Agreement
and that meets the qualifications of an
Administrative Agent, pursuant to Section
7.02.
"Administration Agreement": The written contract, if any,
between the Trustee and an Administrative
Agent and any successor Trustee or
Administrative Agent providing that the
Trustee can delegate certain of its
administrative obligations with respect to
any Series hereunder.
"Administrative Agent Termination Event": With respect to any
given Series, any of the following: (i) any
failure by an Administrative Agent
to remit to the Trustee any funds in
respect of collections on the Underlying
Securities and Credit Support, if any, as
required under this Trust Agreement,
that continues unremedied for five days
after the giving of written notice of
such failure to the Administrative Agent by
the Trustee or the Depositor, or to
the Administrative Agent, the Depositor and
the Trustee by the Holders of not
less than 25% of the Voting Rights; (ii)
any failure by an Administrative Agent
duly to observe or perform in any material
respect any of its other covenants or
obligations under the Administration
Agreement with respect to such Series that
continues unremedied for thirty days after
the giving of written notice of such
failure to the Administrative Agent by the
Trustee or the Depositor, or to the
Administrative Agent, the Depositor and the
Trustee by the Holders of not less
than 25% of the Voting Rights; and (iii)
events of insolvency, readjustment of
debt, marshalling of assets and liabilities
or similar proceedings and certain
actions by or on behalf of an
Administrative Agent indicating its insolvency or
inability to pay its obligations. Any
additional Administrative Agent
Termination Event with respect to any given
Series may be set forth in the
applicable Supplement.
"Advance": As defined
in Section 4.04.
"Affiliate": With respect to any specified Person, any other
Person directly or indirectly controlling
or controlled by or under direct or
indirect common control with such specified
Person. For the purposes of this
definition, "control", when used with
respect to any specified Person, means the
power to direct the management and policies
of such Person, directly or
indirectly, whether through the ownership
of voting securities, by contract or
otherwise; and the terms "controlling" and
"controlled" have meanings
correlative to the foregoing.
"Allocation Ratio": With respect to any Series, as defined in
the related Supplement.
"Authenticating Agent": As defined in Section
5.14.
<PAGE>
3
"Authorized Denomination": The minimum denomination in which a
Certificate may be issued, or any multiple
thereof, as specified in the related
Supplement.
"Available Funds": Unless otherwise specified in the
applicable Supplement, for any Distribution
Date in respect of a given Series or
Class, the sum of (i) all amounts actually
received on or with respect to the
Underlying Securities (including
Liquidation Proceeds and investment income
earned on Account funds invested pursuant
to Section 3.05) with respect to such
Series during the related Collection
Period, (ii) all amounts received pursuant
to any Credit Support Instruments with
respect to such Series for such
Distribution Date and (iii) all other
amounts, if any, specified by the
applicable Supplement less any amount held
for the benefit of the Retained
Interest.
"Beneficial Owner": With respect to Certificates held through
a Depository, the beneficial owner of a
Certificate. For purposes only of
Section 5.16, the Trustee shall be
obligated to treat a Person who claims to be
a beneficial owner of a Certificate as a
"Beneficial Owner" within the meaning
of the Supplement only if such Person has
first delivered to the Trustee, (i) a
certificate or other writing executed by
such Person stating the full name and
address of such Person, the principal
distribution amount of the Certificate
with respect to which such Person claims to
be the Beneficial Owner, and the
participant in the Depository ("such
Person's Participant") through which such
Person holds its beneficial ownership
interest in the Certificates and (ii) a
certificate or other writing executed by
such Person's Participant confirming
that such Person's Participant holds on its
own books and records Certificates
for the account of such Beneficial Owner
and identifying the principal
distribution amount held for such
Beneficial Owner.
"Book-Entry Securities": Securities maintained in the form of
entries (including, without limitation, the
Security Entitlements in such
Securities) in the commercial book-entry
system of the Fed and held for the
Trustee, directly or indirectly, by any
Trustee's Fed Member. Book-Entry
Securities shall not include, in any event,
any Certificated Security (or any
Security Entitlement in any Certificated
Security) held, directly or indirectly,
through a Clearing Corporation.
"Business Day": With respect to any Series, as defined in the
related Supplement.
"Calculation Agent": If applicable with respect to any Series,
as specified in the applicable
Supplement.
"Call Date": The date on which the Call Right may be
exercised, as specified in the applicable
Supplement.
<PAGE>
4
"Call Price": If applicable with respect to any Series, as
specified in the applicable Supplement.
"Callable Series": A Series or Class within such Series
subject to a Call Right, as specified in
the applicable Supplement.
"Call Right": The right of the holder thereof (or any
successor), as named in the applicable
Supplement, to purchase Certificates from
the Holders thereof or to purchase
Underlying Securities from the Trust.
"Call Terms": The terms pursuant to which a Call Right may be
exercised, as set forth in the applicable
Supplement.
"Certificate" and "Certificates": Any trust certificate or
trust certificates authorized by, executed
pursuant to and authenticated and
delivered under, this Trust Agreement, and
unless the context requires
otherwise, "Certificate" and "Certificates"
shall also be deemed to refer to the
Retained Interest.
"Certificate Account":
As defined in Section 3.03.
"Certificate Principal Balance": With respect to an
Outstanding Certificate, as determined at
any time, the maximum amount that the
Holder thereof is entitled to receive as
distributions allocable to principal
payments on the Underlying Securities. The
Certificate Principal Balance, if
any, of any Class within a given Series
(other than those Classes, if any,
specified in the related Supplement), as of
any date of determination, shall be
equal to the aggregate initial Certificate
Principal Balance thereof less the
sum of (i) all amounts allocable to prior
distributions made to such Class in
respect to principal of the Underlying
Securities, (ii) any reductions
attributable to Certificates surrendered in
exchange for Underlying Securities,
as and to the extent provided in the
applicable Supplement, and (iii) any
reductions in the Certificate Principal
Balance thereof deemed to have occurred
in connection with allocations of (A)
Realized Losses in respect of principal of
the Underlying Securities and (B) expenses
of the Trust if any only to the
extent specified in the applicable
Supplement, each as allocated to such Class
pursuant to the applicable Supplement.
"Certificate Register" and "Certificate Registrar": As defined
in Section 5.04.
"Certificated Security": As defined in Section 8-102(a)(4) of
the UCC.
"Certificateholder": Any holder of a Certificate or a Retained
Interest.
"Class": With respect to any Series, any one of the classes of
Certificates of such Series, each class
consisting of Certificates having
identical terms.
<PAGE>
5
"Clearing Agency": An organization that (i) is registered as a
"clearing agency" pursuant to Section 17A
of the Exchange Act and (ii) is a
Clearing Corporation.
"Clearing Agency Participant": At any time, in respect of any
Clearing Agency, a securities intermediary
that maintains Securities Accounts
with such Clearing Agency at such time.
"Clearing Corporation": The meaning specified in Section
8-102(a)(5) of the UCC.
"Closing Date": With respect to any Series, the day on which
Certificates of such Series are first
executed, authenticated and delivered, as
specified in the related Supplement.
"Code": The Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated
thereunder.
"Collection Period": With respect to any Distribution Date for
a Series (or Class within such Series), the
period specified in the related
Supplement.
"Commission": The Securities and Exchange Commission, as from
time to time constituted, created under the
Exchange Act or, if at any time
after the execution and delivery of this
Trust Agreement such Commission is not
existing and performing the duties now
assigned to it, then the body then
performing such duties.
"Concentrated Underlying Securities": Any Underlying
Securities that constitute 10% or more of
the total Underlying Securities with
respect to a Series of Certificates.
"Corporate Trust Office": The principal corporate trust office
of the Trustee located at the address set
forth in the related Supplement or
such other address as the Trustee may
designate from time to time by notice to
the Holders and the Depositor, or the
principal corporate trust office of any
successor Trustee (or such other addresses
as a successor Trustee may designate
from time to time by notice to the Holders
and the Depositor).
"Credit Support": As specified in the related Supplement, a
Letter of Credit, Limited Guaranty, Surety
Bond, Swap Agreement, Swap Guarantee,
or other asset intended to support or
ensure the timely or ultimate
distributions of amounts due in respect of
a Series (or Class within such
Series).
<PAGE>
6
"Credit Support Instrument": The instrument or document
pursuant to which the Credit Support for a
given Series (or Class within such
Series) is provided, as specified in the
applicable Supplement.
"Credit Support Provider": With respect to any Series (or
Class within such Series), the Person, if
any, that will provide any Credit
Support with respect to all or a portion of
a Series or Class, as specified in
the applicable Supplement.
"Cut-off Date": With respect to any Series, the date specified
as such in the related Supplement. For
purposes of this Trust Agreement, any
Underlying Security acquired by the
Depositor after the applicable Cut-off Date
but prior to the applicable Closing Date
and included in the related Trust as of
such Closing Date shall be deemed to have
been Outstanding as of such Cut-off
Date and references to the principal
balance of such Underlying Security as of
such Cut-off Date shall be deemed to be to
the principal balance of such
Underlying Security as of the date on which
it was acquired by the Depositor.
"Definitive Certificates": As defined in Section 5.10.
"Deposited Assets": With respect to any Series, the following
assets, properties and items (together with
the accounts and book-entry accounts
containing or reflecting, directly or
indirectly, such assets, properties and
items), in each case, wherever located,
however held and whether now existing or
hereafter acquired:
(i) all Underlying
Securities and Related Assets;
(ii) all payments receivable or received in respect of the
Underlying Securities including the immediate and continuing right
to
claim for, collect, receive and give receipt for principal,
premium, if
any, and interest payments in respect of the Underlying Securities
and
all other monies payable thereunder;
(iii) all Financial Assets, Security Entitlements and
Investment Property in, constituting, evidenced by, resulting from
or
otherwise related to, any of the Deposited Assets;
(iv) all other rights and remedies (but none of the
obligations) comprising, arising or resulting from or related to
the
Grant of the Deposited Assets including, without limitation, the
right
to give and receive notices and other communications, to make
waivers
or other agreements, to exercise all rights and options of the
Depositor, to bring Proceedings in the name of the Depositor or
otherwise, and generally to exercise all of the rights and remedies
of
the Depositor and to do and receive anything
<PAGE>
7
that the Depositor is or may be entitled to do or receive
thereunder or
with respect thereto; and
(v) any other assets identified as Deposited Assets in the
related Supplement, which assets may include cash, cash
equivalents,
guarantees, letters of credit, financial insurance, interest
rate,
currency, equity, commodity and credit-linked swaps, caps,
floors,
collars and options, forward contracts, structured securities and
other
instruments and transactions that credit enhance, hedge or
otherwise
support the Underlying Securities designed to assure the servicing
or
timely distribution of payments to Holders.
"Depositor": Merrill Lynch Depositor, Inc., a Delaware
corporation, and, if a successor Person
shall have become the Depositor pursuant
to any applicable provisions of this Trust
Agreement, "Depositor" shall mean
such successor Person. With respect to any
provisions of this Trust Agreement
that relate to the provisions of the TIA,
"Depositor" shall include any obligor
on the Certificates as the term obligor is
defined in the TIA.
"Depositor Order": A written order or request, respectively,
signed in the name of the Depositor by any
one of its Executive Officers.
"Depository": With respect to the Certificates of any Series
(or Class within such Series) issuable in
whole or in part in the form of one or
more Global Securities, the Person so
designated in the applicable Supplement,
and, if at any time there is more than one
such Person, "Depository" as used
with respect to the Certificates of any
such Series or Class shall mean the
Depository with respect to the Certificates
of that Series or Class.
"Discount Certificate": Any Certificate that is issued with
"original issue discount" within the
meaning of Section 1273(a) of the Code and
any other Certificate designated by the
Depositor as issued with original issue
discount for United States Federal income
tax purposes.
"Distribution Date": With respect to any Series (or Class
within such Series), each date specified as
a "Distribution Date" for such
Series (or Class) in the related
Supplement.
"Distribution Election": With respect to any Series, as
specified in the related Supplement.
"Dollar" or "$" or "USD": Such currency of the United States
as at the time of payment is legal tender
for the payment of public and private
debts.
<PAGE>
8
"Depository Securities": Securities consisting of Security
Entitlements to Certificated Securities,
held by the Depository or a Clearing
Corporation or a nominee of either subject
to the control of the Depository and
in bearer form or indorsed in blank by an
appropriate Person or registered on
the books of the issuer thereof in the name
of the Depository or its Clearing
Corporation or a nominee of either.
"DCR": Duff & Phelps Credit Rating Co. and any successor
thereto.
"Eligible Account": Either (i) an account or accounts
maintained with a Federal or State
chartered depository institution or trust
company the long-term unsecured obligations
of which are rated by the Rating
Agency the higher of (x) at least the then
current long-term rating of the
Certificates or (y) in one of its two
highest long-term rating categories
(unless otherwise specified in the
Supplement) at the time any amounts are held
in deposit therein or (ii) a trust
account(s) maintained as a segregated
account(s) and held by a Federal or State
chartered depository institution or
trust company in trust for the benefit of
the Certificateholders; provided,
however, that such depository institution
or trust company has a long-term
rating in one of the four highest
categories by the Rating Agency.
"Eligible Investments": With respect to any Series, unless
otherwise specified in the related
Supplement, any one or more of the following
obligations or securities; provided,
however, that the total stated return
specified by the terms of each such
obligation or security is at least equal to
the purchase price thereof; and provided
further that no such instrument may
carry the symbol "r" from S&P in its
rating:
(i) direct obligations of, and obligations fully guaranteed
by, the United States, the Federal Home Loan Mortgage Corporation,
the
Federal National Mortgage Association, the Federal Farm Credit
System
or any agency or instrumentality of the United States the
obligations
of which are backed by the full faith and credit of the United
States;
provided, however, that obligations of, or guaranteed by, the
Federal
Home Loan Mortgage Corporation, the Federal National Mortgage
Association or the Federal Farm Credit System shall be Eligible
Investments only if, at the time of investment, such investment has
the
rating specified in such Supplement for Eligible Investments;
(ii) demand and time deposits in, certificates of deposit of,
or banker's acceptances issued by any depository institution or
trust
company (including the Trustee or any agent of the Trustee acting
in
their respective commercial capacities) incorporated under the laws
of
the United States or any State and subject to supervision and
examination by Federal and/or State banking authorities so long as
the
commercial paper and/or the short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution which is the principal subsidiary of a
holding
company, the commercial paper or other short-term
<PAGE>
9
debt obligations of such holding company) at the time of such
investment or contractual commitment providing for such investment
have
the rating specified in such Supplement for Eligible
Investments;
provided, however, that such rating shall be no lower than the
lower of
the rating on the Underlying Securities or the Trust Certificates
at
the time of purchase of the investments;
(iii) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
or
any State that have the rating specified in such Supplement for
Eligible Investments at the time of such investment or
contractual
commitment providing for such investment; provided, however, that
such
rating shall be no lower than the lower of the rating on the
Underlying
Securities or the Trust Certificates; and provided further that
securities issued by any particular corporation will not be
Eligible
Investments to the extent that investment therein will cause the
then
outstanding principal amount of securities issued by such
corporation
and held as part of the Trust for such Series to exceed 10% of
the
aggregate outstanding principal balances and amounts of all the
Underlying Securities and Eligible Investments held as part of
the
Trust for such Series; and
(iv) commercial paper having at the time of such investment
the rating specified in the Supplement for Eligible
Investments.
"Entitlement Holder": As defined in Section 8-102(a)(7) of the
UCC.
"Event of Default": With respect to any Series (or Class
within such Series), as specified in the
related Supplement.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Exchange Rate Agent":
As specified in the Supplement.
"Executive Officer": With respect to any limited liability
company or corporation, the chief executive
officer, the chief operating
officer, the chief financial officer, the
president, any vice president, the
secretary or the treasurer of such limited
liability company or corporation;
with respect to any partnership, any
general partner thereof.
"Extraordinary Trust Expenses": Any and all costs, expenses or
liabilities arising out of the
establishment, existence or administration of the
Trust, other than (i) Ordinary Expenses,
and (ii) costs and expenses payable by
a particular Certificateholder, the Trustee
or the Depositor pursuant to this
Trust Agreement.
<PAGE>
10
"Fed": The Federal
Reserve Bank of New York.
"Fed Member Securities Account": In respect of any Person, an
account in the name of such Person at the
Fed, to which account Book-Entry
Securities held for such Person are or may
be credited.
"Federal Book-Entry Regulations": (a) the Federal regulations
contained in Subpart B ("Treasury/Reserve
Automated Debt Entry System (TRADES)"
governing Book-Entry Securities consisting
of U.S. Treasury bonds, notes and
bills) and Subpart D ("Additional
Provisions") of 31 C.F.R. Part 357, 31 C.F.R.
ss. 357.10 through ss. 357.14 and ss.
357.41 through ss. 357.44 (including
related defined terms in 31 C.F.R. ss.
357.2) and (b) to the extent
substantially identical to the federal
regulations referred to in clause (a)
above (as in effect from time to time), the
federal regulations governing other
Book-Entry Securities.
"Final Scheduled Distribution Date": With respect to any
Certificate, the date on which all the
unpaid principal of (and premium, if any,
on) and interest on such Certificate is
scheduled, without giving effect to any
prepayment, exchange or early termination,
to become due and payable as provided
therein and in the applicable
Supplement.
"Financial Asset": As defined in Section 8-102(a)(9) of the
UCC.
"Fitch": Fitch Investors Service, L.P., and any successor
thereof.
"Fixed Pass-Through Rate": With respect to any Fixed Rate
Certificate, as defined in the related
Supplement.
"Fixed Rate Certificate": A Certificate that provides for a
payment of interest at a Fixed Pass-Through
Rate.
"Floating Pass-Through Rate": With respect to any Floating
Rate Certificate, as defined in the related
Supplement.
"Floating Rate Certificate": A Certificate that provides for
the payment of interest at a Floating
Pass-Through Rate determined periodically
by reference to a formula specified in the
related Supplement.
"Global Security": A registered Certificate evidencing all or
part of a Series (or Class within such
Series), issued to the Depository for
such Series or Class in accordance with
Section 5.08 and bearing the legend
prescribed therein.
<PAGE>
11
"Grant": To grant, bargain, sell, warrant, alienate, remise,
demise, release, convey, assign, transfer,
deposit, set over and confirm to the
Trustee pursuant to these Standard Terms
and the applicable Supplement; and the
terms "Granted" and "Granting" have the
meanings correlative to the foregoing.
"Holder": The Person in whose name a Certificate or Retained
Interest is registered in the Certificate
Register on the applicable Record
Date. Where the context requires, "Holder"
may refer to the person entitled to
exercise the Voting Rights accompanying a
Certificate.
"Independent": When used with respect to any Person means that
such Person (1) is in fact independent of
the Depositor and of any Affiliate,
(2) does not have any direct or indirect
material financial interest in the
Depositor or in any Affiliate and (3) is
not connected with the Depositor or any
Affiliate as an officer, employee,
promoter, underwriter, trustee, partner,
director or person performing similar
functions.
"Investment Property": As defined in Section 9-115 of the UCC.
"Letter of Credit": With respect to any Series (or Class
within such Series), the letter of credit,
if any, providing for the payment of
all or a portion of amounts due in respect
of such Series (or Class), issued to
the Trustee for the benefit of the Holders
of such Series (or Class), issued by
the related Credit Support Provider, all as
specified in the related Supplement.
"Limited Guarantor": With respect to any Series (or Class
within such Series), a Person specified in
the related Supplement as providing a
guarantee or insurance policy or other
credit enhancement supporting the
distributions in respect of such Series (or
Class within such Series) as and to
the extent specified in such
Supplement.
"Limited Guaranty": With respect to any Series (or Class
within such Series), any guarantee of, or
insurance policy or other comparable
form of credit enhancement with respect to,
amounts required to be distributed
in respect of such Series (or Class) or
payments under all or certain of the
Underlying Securities relating to such
Series or Class, executed and delivered
by a Limited Guarantor in favor of the
Trustee, for the benefit of the
Certificateholders, as specified in the
related Supplement.
"Liquidation Price": If applicable with respect to any Series,
the price at which the Market Agent sells
the Underlying Securities on behalf of
the Trustee, as specified in the applicable
Supplement.
"Liquidation Proceeds": The amounts received by the Trustee in
connection with (i) the liquidation of a
defaulted Underlying Security,
collateral, if any, related thereto,
<PAGE>
12
or Related Asset or (ii) the repurchase,
substitution or sale of an Underlying
Security or Related Asset.
"Market Agent": The market agent or market agents, if any,
appointed pursuant to Section 8.01, and its
or their successors or assigns.
"Market Agent Agreement": With respect to any Series, the
agreement, if any, dated as of the Closing
Date, between the Trustee and the
Market Agent, the form of which will be
attached to the related Supplement, and
any similar agreement with a successor
Market Agent, in each case as from time
to time amended or supplemented.
"Merrill Lynch & Co.": Merrill Lynch & Co., a Delaware
corporation.
"Minimum Wire Denomination": $10,000,000 or the equivalent in
any Specified Currency.
"Moody's": Moody's Investors Service, Inc. and any successors
thereto.
"Notional Amount": With respect to any Class of Certificates,
if applicable, the initial notional amount
specified in the related Supplement
on which distributions of interest may be
determined at the applicable
Pass-Through Rate, as the same may be
adjusted as specified in such Supplement.
"Officer's Certificate": A certificate signed by any (or, if
specified in these Standard Terms or any
Supplement, more than one) Executive
Officer of the Depositor, and delivered to
the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may,
except as otherwise expressly provided in
this Trust Agreement, be counsel for
the Depositor acceptable to the Trustee,
except that any opinion of counsel
relating to the qualification of any
account required to be maintained pursuant
to this Trust Agreement as an Eligible
Account must be an opinion of counsel who
is in fact Independent of the
Depositor.
"Optional Exchange": shall mean the exchange of Certificates
of any Series (or Class within such Series)
for a pro rata portion of the
Deposited Assets of the related Trust.
"Optional Exchange Date": With respect to any Series (or Class
within such Series), as defined, if
applicable, in the related Supplement.
"Optional Redemption":
The right of an Underlying Securities
Issuer to redeem such Underlying Securities
in accordance with the terms of the
Underlying Securities Indenture.
<PAGE>
13
"Ordinary Expenses": The Trustee's customary fee for its
services as Trustee, as set forth in the
related Supplement, including but not
limited to (i) the costs and expenses of
preparing, sending and receiving all
reports, statements, notices, returns,
filings, solicitation of consent or
instructions, or other communications
required by this Trust Agreement, (ii) the
costs and expenses of holding and making
ordinary collection or payments on the
assets of the Trust and of determining and
making distributions, (iii) the costs
and expenses of the Trust's or Trustee's
counsel, accountants and other experts
for ordinary or routine consultation or
advice in connection with the
establishment, administration and
termination of the Trust, and (iv) any other
costs and expenses that are, or reasonably
should have been, expected to be
incurred in the ordinary course of
administration of the Trust.
"Outstanding": With respect to Certificates of a specified
Series (or Class within such Series), as of
any date of determination, all such
Certificates theretofore executed,
authenticated and delivered under these
Standard Terms and the related Supplement
except:
(i) Certificates theretofore cancelled by the Certificate
Registrar; and
(ii) Certificates, including Predecessor Certificates, in
exchange for or in lieu of which other Certificates have been
executed,
authenticated and delivered pursuant to this Trust Agreement,
unless
proof satisfactory to the Trustee is presented that any such
Certificates are held by a bona fide purchaser in whose hands
such
Certificates are valid obligations of the Trust;
provided, however, that in determining
whether any request, demand,
authorization, direction, notice, consent
or waiver hereunder has been given by
the required percentage of the aggregate
Voting Rights, Voting Rights
accompanying Certificates beneficially
owned by the Depositor, the Trustee, or
any Affiliate thereof shall be disregarded
and deemed not to be Outstanding, and
such Voting Rights shall not be taken into
account in determining whether the
requisite percentage of aggregate Voting
Rights necessary to effect any such
consent or take any such action has been
obtained except that, in determining
whether the Trustee shall be protected in
relying upon any such request, demand,
authorization, direction, notice, consent
or waiver, only Certificates with
respect to which the Depositor has provided
the Trustee an Officer's Certificate
stating that such Certificates are so owned
shall be so disregarded.
Certificates so owned that have been
pledged in good faith may be regarded as
Outstanding if the pledgee establishes to
the satisfaction of the Trustee the
pledgee's right so to act with respect to
such Certificates.
"Participant": A broker, dealer, bank, other financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
<PAGE>
14
"Pass-Through Rate": With respect to any Series (or Class
within such Series) (except certain
Discount Certificates and Certificates
entitled to nominal or no interest
distributions), the annual rate at which
interest accrues on the Certificates of
such Series (or Class), which may be a
fixed rate or a floating rate of interest,
determined upon the basis and in the
manner specified in the related
Supplement.
"Paying Agent":
As defined in Section
5.13.
"Person": Any individual, limited liability company,
corporation, partnership, joint venture,
association, joint stock company, trust
(including any beneficiary thereof),
unincorporated organization or government
or any agency or political subdivision
thereof.
"Predecessor Certificate": As defined in Section 5.05.
"Prepaid Ordinary Expenses": The amount (if any) paid by the
Depositor to the Trustee on or before the
Closing Date to cover Ordinary
Expenses, as specified in the related
Supplement.
"Proceeding": Any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency": With respect to any Series or Class within
such Series), each nationally recognized
statistical rating organization,
specified in the related Supplement, that
initially rates the Certificates of
such Series (or Class within such
Series).
"Rating Agency Condition": With respect to any action or
occurrence, unless otherwise specified in
the applicable Supplement, that each
Rating Agency shall have been given 10 days
(or such shorter period acceptable
to each Rating Agency) prior written notice
thereof and that each Rating Agency
shall have notified the Depositor and the
Trustee in writing that such action or
occurrence will not result in a reduction
or withdrawal of the then current
rating of any Certificate of the applicable
Series.
"Realized Loss": With respect to any defaulted and liquidated
Underlying Security, the excess, if any, of
(x) the price paid by the Depositor
for such Underlying Security plus expenses
incurred by the Trustee in connection
with the practices and procedures referred
to in Section 3.07(b) of these
Standard Terms, to the extent reimbursable
under these Standard Terms and the
related Supplement, over (y) Liquidation
Proceeds with respect thereto.
"Record Date": With respect to any Distribution Date for any
Series (or Class within such Series), the
date specified in the related
Supplement.
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15
"Related Assets": Any assets held by a Trust the return of
which is linked to one or more Underlying
Securities and which, if applicable,
shall be described in the related
Supplement or a schedule thereto.
"Required Percentage--Amendment": Unless otherwise specified
in the related Supplement, if a Rating
Agency Condition is specified in such
Supplement and such Rating Agency Condition
is met, or, if a Rating Agency
Condition is not so specified in such
Supplement, 66-2/3% of the aggregate
Voting Rights of such Series, and 100%
otherwise.
"Required Percentage--Direction of Trustee": Unless otherwise
specified in the related Supplement,
66-2/3% of the aggregate Voting Rights of
such Series.
"Required Percentage--Remedies": Unless otherwise specified in
the related Supplement, 66-2/3% of the
aggregate Voting Rights of such Series.
"Required Percentage--Removal of Securities Intermediary":
Unless otherwise specified in the related
Supplement, more than 50% of the
aggregate Voting Rights of such Series.
"Required
Percentage--Removal of Trustee": Unless otherwise
specified in the related Supplement, more
than 50% of the aggregate Voting
Rights of a Series.
"Required Percentage--Waiver": Unless otherwise specified in
the related Supplement, 66-2/3% of the
aggregate Voting Rights of a Series.
"Required Principal": As determined for any Distribution Date
for a given Series (or Class within such
Series), unless otherwise specified in
the related Supplement, the amounts on
deposit in the Certificate Account
allocable to principal payments on the
Underlying Securities (including from
Credit Support, if any, and Advances, if
any, but excluding amounts in respect
of principal payments to the extent that
Advances with respect thereto were
distributed as Required Principal on a
prior Distribution Date) and required to
be distributed in respect of the
Certificates of such Series (or Class) in
accordance with the terms of such
Certificates and such related Supplement.
"Requisite Reserve Amount": As of any date with respect to any
Series (or Class within such Series), the
amount, if any, required to be
maintained in the Reserve Account, if any,
for such Series or Class as specified
in or determined pursuant to the related
Supplement.
"Reserve Account": An Eligible Account, if any, created and
maintained pursuant to Section 3.06.
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16
"Responsible Officer": With respect to the Trustee, any
officer within the Corporate Trust Office,
including any Managing Director,
Senior Vice President, Vice President,
Assistant Vice President, Assistant
Secretary or any other officer of the
Trustee customarily performing functions
similar to those performed by any of the
above designated officers and also,
with respect to a particular matter, any
other officer to whom such matter is
referred because of such officer's actual
knowledge of and familiarity with the
particular subject.
"Retained
Interest": If applicable, with respect to any
Underlying Security, an ownership interest
in and a right to a portion of the
payments thereon by the obligor thereof, as
specified in the related Supplement,
held by the Person so specified in such
Supplement.
"Sale Procedures": Unless otherwise specified in the
Supplement, shall mean that, with respect
to any sale of one or more Underlying
Securities or Related Assets, the Market
Agent, on behalf of the Trust, shall
sell such Underlying Securities or Related
Assets to the highest bidders among
not less than two solicited bidders for
such Underlying Securities or Related
Assets (one of which bidders may include
Merrill Lynch & Co. or any Affiliate
thereof; provided, however, that neither
Merrill Lynch & Co. nor any of its
Affiliates will be under any obligation to
bid, and which bidders need not be
limited to recognized broker dealers). In
the sole judgment of the Market Agent,
bids may be evaluated on the basis of bids
for a single Underlying Security or
Related Asset, a portion of the Underlying
Securities or Related Assets, or all
of the Underlying Securities or Related
Assets being sold or any other basis
selected in good faith by the Market
Agent.
"S&P": Standard & Poor's Ratings Services, and any
successor
thereof.
"Securities Account": As defined in Section 8-501(a) of the
UCC.
"Securities Control": "Control" as defined in Section 8-106 of
the UCC and, for purposes of determining an
interest in investment property
under UCC Article 9, Section 9-115(1)(e) of
the UCC.
"securities intermediary": As defined in Section 8-102(a)(14)
of the UCC and, in respect of any
Book-Entry Security, a "securities
intermediary" (as defined in 31 C.F.R. ss.
357.2 or, as applicable to such
Book-Entry Security, the corresponding
Federal Book-Entry Regulations).
"Securities Intermediary": With respect to any Series, the
Securities Intermediary shall be the Person
so specified in the applicable
Supplement until a successor Person shall
have become the Securities
Intermediary pursuant to the applicable
provisions of these Standard Terms and
the applicable Supplement, and thereafter
"Securities Intermediary" shall mean
such successor Person.
<PAGE>
17
"Security": As defined
in Section 8-102(a)(15) of the UCC.
"Security Certificate": As defined in Section 8-102(a)(9) of
the UCC.
"Security Entitlement": As defined in Section 8-102(a)(17) of
the UCC or, in respect of any Book-Entry
Security, as defined in 31 C.F.R.
Section 357.2 (or, as applicable to such
Book-Entry Security, the corresponding
Federal Book-Entry Regulations).
"Series": A separate series of Certificates issued pursuant to
these Standard Terms and a related
Supplement, which series may be divided into
two or more Classes, as provided in such
Supplement.
"Specified Currency": As specified in the related Supplement
for the applicable Series or Class, which
may be a currency issued by the
government of any country or a composite
currency the value of which is
determined by reference to the values of
the currencies of any group of
countries. If not specified in the related
Supplement, the Specified Currency
shall be Dollars.
"State": Any one of the 50 states of the United States, or the
District of Columbia.
"Supplement": An agreement incorporating these Standard Terms
that authorizes the issuance of a
particular Series (and each Class within such
Series) of Certificates.
"Surety Bond": If so specified in the Supplement with respect
to any Series (or Class within such
Series), the surety bond providing for the
distribution under certain circumstances
specified in such Supplement of amounts
to the Certificateholders of such Series
(or Class), which surety bond will be
issued to the Trustee for the benefit of
such Certificateholders by the related
Credit Support Provider, all as specified
in such Supplement.
"Swap Agreement": If so specified in the Supplement with
respect to any Series, the ISDA Master
Agreement dated as of the Closing Date by
and between the Trust and the Swap
Counterparty, as the same may be amended or
supplemented from time to time as provided
therein.
"Swap Counterparty": If so specified in the Supplement with
respect to any Series (or Class within such
Series), as specified in such
Supplement.
<PAGE>
18
"Swap Distribution Amount": If so specified in the Supplement
with respect to any Series, all amounts
then due and owing to the Swap
Counterparty pursuant to the Swap
Agreement, other than Swap Termination
Payments.
"Swap Guarantee": If so specified in the Supplement with
respect to any Series, the guarantee issued
by the Swap Guarantor in favor of
the Trust substantially in the form
attached as an exhibit to the Swap
Agreement.
"Swap Guarantor": If so specified in the Supplement with
respect to any Series, the guarantor
specified as such in such Supplement.
"Swap Receipt Amount": If so specified in the Supplement with
respect to any Series, all amounts due and
owing to the Trust pursuant to the
Swap Agreement other than Swap Termination
Payments.
"Swap Termination Payment": If so specified in the Supplement
with respect to any Series, the amount
payable by the Swap Counterparty to the
Trust, or by the Trust to the Swap
Counterparty, pursuant to the Swap Agreement.
"Tax Event": The right of an Underlying Securities Issuer to
shorten the maturity of or repurchase such
Underlying Securities, in accordance
with the terms of the Underlying Securities
Indenture, due to a change in the
treatment of such Underlying Securities
under the Code.
"Trust": With respect to any Series, the segregated asset or
pool of assets subject hereto, constituting
the trust created hereby and by the
related Supplement and to be administered
hereunder and thereunder, consisting
of those Deposited Assets, the Credit
Support, if applicable, and all sums
distributed in respect thereof that are
specified as being part of the Trust for
such Series in the related Supplement, all
for the benefit of the
Certificateholders of such Series as of any
particular time.
"Trust Agreement": With respect to each Series, these Standard
Terms and all amendments hereof and, unless
the context otherwise requires, the
related Supplement and all amendments
thereto.
"Trustee": With respect to any Series, the Person so specified
in the applicable Supplement until a
successor Person shall have become the
Trustee pursuant to the applicable
provisions of these Standard Terms and the
applicable Supplement, and thereafter
"Trustee" shall mean such successor
Person.
<PAGE>
19
"Trustee's Fed Member": Any Person that is eligible to
maintain a Fed Member Securities Account in
such Person's name with the Fed and
through which the Trustee holds Book-Entry
Securities.
"TIA": The Trust Indenture Act of 1939, as amended, as the
same is in force and effect as of the date
hereof.
"UCC": The Uniform Commercial Code as in effect from time to
time in the State of New York and any
successor statute.
"Underlying Securities Indenture": The indenture pursuant to
which the Underlying Securities were
issued, as identified in the Underlying
Securities Schedule.
"Underlying Securities Issuer": With respect to an Underlying
Security, the issuer thereof (including, if
applicable, the guarantor of the
Underlying Security), as identified in the
Underlying Securities Schedule.
"Underlying Securities Schedule": Schedule I to the
Supplement.
"Underlying Security" or "Underlying Securities": With respect
to any Series, the asset or assets
identified in the Underlying Securities
Schedule. The Underlying Securities for any
Series or the related Trust shall
not constitute Underlying Securities for
any other Series or any other Trust.
"Underlying Security Interest Payment Date": With respect to
an Underlying Security, each date specified
in the Underlying Securities
Schedule as a date on which interest is
scheduled, as of the Closing Date, to be
payable by or on behalf of the Underlying
Securities Issuer on such Underlying
Security in accordance with its terms.
"United States": The United States of America (including the
States), its territories, its possessions
and other areas subject to its
jurisdiction.
"Voting Rights": The voting rights with respect to the
Underlying Securities, which voting rights
shall be allocated to
Certificateholders of each Class within a
given Series (and to the holders of
the Retained Interest and Call Right, if
any) in accordance with the Allocation
Ratio.
Section 1.02. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
<PAGE>
20
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect in the United States from time to time;
(iii) "or" is
not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not
to
any particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
Section 1.03. Compliance Certificates and Opinions; Record
Date. (a) Upon any application or request
by the Depositor to the Trustee to
take any action under any provision of this
Trust Agreement other than the
initial issuance of the Certificates, the
Depositor shall furnish to the Trustee
an Officer's Certificate stating that, in
the opinion of the signer thereof, all
conditions precedent, if any, provided for
in this Trust Agreement relating to
the proposed action have been complied with
and an Opinion of Counsel stating
that in the opinion of such counsel all
such conditions precedent, if any, have
been complied with, except that in the case
of any such application or request
as to which the furnishing of such
documents is specifically required by any
provision of this Trust Agreement relating
to such particular application or
request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this
Trust Agreement (other than a
certificate provided pursuant to Section
3.10(d)) shall include:
(i) a statement that the individual signing such certificate
or opinion has read such covenant or condition and the
definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such individual, he
or she has made such examination or investigation as is necessary
to
enable him or her to express an informed opinion as to whether or
not
such covenant or condition has been complied with; and
<PAGE>
21
(iv) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
(b) The Depositor may at its option by delivery of an
Officer's Certificate to the Trustee set a
record date to determine the Holders
entitled to give any consent, request,
demand, authorization, direction, notice,
waiver or other act. Notwithstanding TIA
Section 316(c), such record date shall
be the record date specified in such
Officer's Certificate, which shall be a
date not more than 30 days prior to the
first solicitation of Certificateholders
in connection therewith. If such a record
date is fixed, such consent, request,
demand, authorization, direction, notice,
waiver or other act may be given
before or after such record date, but only
the Holders of record at the close of
business on such record date shall be
deemed to be Holders for the purposes of
determining whether the requisite aggregate
Voting Rights have authorized or
agreed or consented to such consent,
request, demand, authorization, direction,
notice, waiver or other act, and for that
purpose the aggregate Voting Rights
shall be computed as of such record date;
provided, however, that no such
consent, request, demand, authorization,
direction, notice, waiver or other act
by the Holders on such record date shall be
deemed effective unless it shall
become effective pursuant to the provisions
of this Trust Agreement not later
than one year after the record date.
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES;
PURPOSE AND CLASSIFICATION OF TRUSTS
Section 2.01. Creation and Declaration of Trusts; Assignment
of Deposited Assets. (a) The Depositor,
concurrently with the execution and
delivery of the related Supplement, does
hereby agree to Grant to the Trustee
for the benefit of the Trustee and the
Certificateholders of each given Series
and without recourse, all the right, title
and interest of the Depositor,
including any security interest therein for
the benefit of the Depositor, in, to
and under the Underlying Securities and
other Deposited Assets. Unless otherwise
specified in the Supplement, each such
Grant will include all interest, premium
(if any) and principal of, on or with
respect to any such Underlying Securities
due after the Cut-off Date and received by
the Depositor, and will exclude all
interest, premium (if any) and principal
of, on or with respect to any such
Underlying Securities due on or before the
Cut-off Date. With respect to any
Concentrated Underlying Security, the
Underlying Securities Schedule shall
include information regarding the payment
terms of the Concentrated Underlying
Security, the maturity or terms thereof,
the rating, if any, thereof and any
other material information with respect
thereto.
<PAGE>
22
(b) In connection with each Grant referred to in paragraph (a)
of this Section 2.01, the Depositor shall,
not later than the applicable Closing
Date, either
(i) deposit the Underlying Securities for a given Series
(except for the Underlying Securities attributable to such Series
that
are to be acquired from a Person other than the Depositor, as
specified
on the Underlying Securities Schedule to the applicable
Supplement)
with the Trustee by physical delivery of such Underlying
Securities
duly endorsed, together with any documents necessary to
transfer
ownership of such Underlying Securities, to the Trustee, or
(ii) have ensured that the Underlying Securities have been
delivered to a Clearing Agency, in which event (A) the
Securities
Intermediary or its agent, on behalf of the Trustee, has
accepted
delivery of such Underlying Securities through such Clearing
Agency,
and (B) the Underlying Securities have been credited to a
Securities
Account of the Trustee and maintained by the Securities
Intermediary on
behalf of the Trustee, and the Securities Intermediary or its
agent
shall have the right to hold and maintain such Underlying
Securities on
deposit with such Clearing Agency for all purposes of this
Trust
Agreement.
(c) In the case of each delivery of Underlying Securities
referred to in paragraph (b) of this
Section 2.01, the Depositor shall be deemed
thereby to represent and warrant to the
Trustee and the Securities Intermediary
that:
(i) the Depositor is duly authorized to so deliver the
Underlying Securities;
(ii)
the Underlying Securities so delivered are genuine;
(iii) at the time of delivery of the Underlying Securities,
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
(iv) such delivery is irrevocable and free of any continuing
claim by the Depositor except such as the Depositor may have as
a
Certificateholder.
The above representations and warranties shall survive the
delivery of the Underlying Securities and
the Certificates in respect thereof.
The Depositor shall further be deemed by
such delivery to have made the
representations that to the Depositor's
knowledge but without having made any
independent inquiry, as of the Closing
Date, no default or event of default with
respect to the Underlying Securities has
occurred and is continuing.
(d) Unless otherwise specified in the related Supplement, the
Grant of the Deposited Assets accomplished
by this Trust Agreement is absolute
and shall constitute a
<PAGE>
23
sale. In addition, the Trust created
hereunder and thereunder shall constitute a
fixed investment trust for federal income
tax purposes under Treasury Regulation
Section 301.7701-4, and all parties hereto
and thereto agree to treat the Trust,
any distributions therefrom and the
beneficial interest in the Certificates
consistently with such characterization.
The provisions of this Trust Agreement
shall be interpreted consistently with such
characterization.
(e) 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 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
otherwise incur, assume or guarantee
any indebtedness for money borrowed.
(f) Anything herein to the contrary notwithstanding, none of
the Trustee, the Securities Intermediary or
any of the Certificateholders
assumes any of the obligations of the
Depositor or any other Person in respect
of the Underlying Securities.
(g) The Securities Intermediary expressly agrees with the
Trustee and the Certificateholders that, at
all times from and after the date
hereof, any and all of the Deposited Assets
held by the Securities Intermediary
in the Certificate Account are to be
treated as Financial Assets under, and for
all purposes of, UCC Article 8 and UCC
Article 9.
Section 2.02. Acceptance by Trustee. With respect to each
Series, the Trustee will acknowledge
receipt by it, or by a custodian on its
behalf, of the related Underlying
Securities now existing or hereafter acquired,
and declares that it will hold such
Underlying Securities and all other
documents delivered to it pursuant to this
Trust Agreement, and that it will
hold all such assets and such other assets
(including Underlying Securities
acquired from a Person other than the
Depositor) comprising the Trust for a
given Series, in trust for the exclusive
use and benefit of all present and
future Certificateholders of such Series
and for the purposes and subject to the
terms and conditions set forth in this
Trust Agreement.
Section 2.03. Representations and Warranties of the Depositor.
The Depositor hereby represents and
warrants to the Trustee that as of the
Closing Date or as of such other date
specifically provided herein or in the
applicable Supplement:
(i) the Depositor is a corporation duly organized, validly
exis
