As filed with the Securities and Exchange Commission on September 5, 1997.
Registration No. 333-29015
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------
MERRILL LYNCH DEPOSITOR, INC.
(Exact name of registrant as specified in its charter)
------------------
Delaware 13-3891329
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
World Financial Center
New York, New York 10281
(Address, including zip code, and telephone
number, including area code, of
registrant's principal executive offices)
------------------
Frank D. Ronan
Merrill Lynch & Co.
World Financial Center
New York, New York 10281
(212) 449-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------
Copies to:
Robert Evans III
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_] ------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Maximum Amount of
Title of Aggregate Offering Registration
Securities to be Registered(1) Price(2) Fee
- --------------------------------------------------------------------------------
STEERS(R)
Trust Certificates $500,000,000 $151,517.00
================================================================================
(1) This registration statement also registers an indeterminate amount of Trust
Certificates to be sold by the Underwriter in connection with market-making
activities.
(2) Estimated solely for purposes of calculating the
registration fee, of which $304.00 has already been paid.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall hereafter become effective in
<PAGE>
2
accordance with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
3
EXPLANATORY NOTE
This Registration Statement includes a basic prospectus, as well as a form
of prospectus supplement which is intended to serve as the basis for an offering
of STEERS(R) Trust Certificates representing a proportionate undivided
beneficial interest in certain distributions to be made by the trust described
therein. The Underlying Securities for the offering of STEERS(R) Trust
Certificates described in the form of prospectus supplement shall consist of
fixed rate, publicly traded, unsecured debt, or other eligible, securities. The
Underlying Securities contemplated to be offered pursuant to the form of
prospectus supplement included herein do not include all of the types of
securities which may constitute Underlying Securities, as further disclosed in
the basic prospectus.
<PAGE>
SUBJECT TO COMPLETION, DATED [ ] __, 1997
PROSPECTUS SUPPLEMENT
(To Prospectus dated [ ] __, 1997)
Merrill Lynch Depositor, Inc.
Depositor
$[ ]
STEERS(R) TRUST CERTIFICATES, Series 199_-[ ]
(UNDERLYING SECURITIES WILL BE [___]% [DEBENTURES][OTHER SECURITIES] DUE
[ ] __, 20__ ISSUED BY
[ ])
Each STEERS(R) Trust Certificate, Series 199_-[ ] offered hereby (collectively,
the "Trust Certificates") represents a beneficial interest in a trust (the
"Trust") formed pursuant to the Trust Agreement dated as of [ ] __, 1997 between
Merrill Lynch Depositor, Inc. (the "Depositor") and United States Trust Company
of New York, trustee (the "Trustee"). The Trust Certificates will be issued in
two Classes, Class _-1 and Class _-2.
The principal assets of the Trust will be $[ ] aggregate principal amount of
[ ]% [Debentures][Senior Notes][other securities] due [ ] __, 20__ (the
"Underlying Securities") issued by [Name of Underlying Securities Issuer] (the
"Underlying Securities Issuer"), having the characteristics described herein
under "Description of the Underlying Securities".
The Underlying Securities Issuer is not participating in, and will not receive
any proceeds in connection with, the offering of the Trust Certificates, and is
not an affiliate of the Depositor. The Underlying Securities were originally
issued and sold as part of a public offering [in] [ ] 19__, were acquired in the
secondary market and will be deposited by the Depositor into the Trust for the
benefit of the holders of the Trust Certificates (the "Trust
Certificateholders").
The holders of the Class _-1 Trust Certificates will be entitled to receive, on
[ ] __ and [ ] __ of each year (or if such date is not a Business Day, the next
succeeding Business Day) (each, a "Distribution Date"), commencing [ ] __, 199_
and ending on the Final Scheduled Distribution Date (as defined below), as and
if interest is received on the Underlying Securities, interest distributions at
a rate of [ ]% per annum on the Notional Amount of the Class _-1 Trust
Certificates. [The Class _-1 Trust Certificates will amortize on each
Distribution Date on a level yield basis.] The holders of the Class _-2 Trust
Certificates will not be entitled to distributions of interest. On [ ] __, 20__
(the "Final Scheduled Distribution Date"), the Class _-2 Trust Certificates will
be entitled to a distribution of all Underlying Securities held by the Trust as
of such date. All distributions of interest and principal (in the case of the
Class _-1 Trust Certificates) or Underlying Securities (in the case of the Class
_-2 Trust Certificates) will be made on a pro rata basis to the holders of the
respective Trust Certificate Class. It is a condition to the issuance of the
Trust Certificates that the Trust Certificates have ratings assigned by Moody's
Investors Service, Inc. ("Moody's") and by Standard & Poor's Ratings Services, a
division of the McGraw-Hill Companies, Inc. ("S&P"), equivalent to the ratings
of the Underlying Securities, which, as of the date of this Prospectus
Supplement were "[ ]" by Moody's and "[ ]" by S&P.
Application will be made to list the Class _-1 and Class _-2 Trust Certificates
on the New York Stock Exchange ("NYSE").
Prospective investors should consider the factors set forth herein under
"Risk Factors", beginning on page S-11 and in the Prospectus on page 7.
(cover continued on next page)
S-1
<PAGE>
THE TRUST CERTIFICATES REPRESENT INTERESTS IN THE TRUST ONLY AND DO NOT
REPRESENT OBLIGATIONS OF OR INTERESTS IN THE DEPOSITOR OR ANY OF ITS
AFFILIATES. THE TRUST CERTIFICATES DO NOT REPRESENT A DIRECT
OBLIGATION OF THE UNDERLYING SECURITIES
ISSUER OR ANY OF ITS AFFILIATES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
INITIAL TRUST
AGGREGATE CERTIFICATE
PRINCIPAL INTEREST FINAL SCHEDULED
CLASS AMOUNT RATE DISTRIBUTION DATE CUSIP NUMBER
----- ------ ---- ----------------- ------------
<S> <C> <C> <C> <C>
Class _-1 $ [ ](1) [ ]%(1) [ ] __, 20__ [ ]
Class _-2 $ [ ] (2) [ ] __, 20__(2) [ ]
</TABLE>
(1) The holders of the Class _-1 Trust Certificates will be entitled to
receive, on [ ] __ and [ ] __ of each year, commencing on [ ] __, 199_ and
ending on the Final Scheduled Distribution Date, interest distributions at
a rate of [ ]% per annum on the outstanding principal amount of the Class
_-1 Trust Certificates. The Class _-1 Trust Certificates will amortize on
each Distribution Date on a level yield basis.
(2) The holders of the Class _-2 Trust Certificates will not be entitled to
distributions of interest. On the Final Scheduled Distribution Date, the
Class _-2 Trust Certificates will be entitled to a distribution of all of
the Underlying Securities then held by the Trust.
The Class _-1 and Class _-2 Trust Certificates offered hereby will be
purchased by Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch & Co." or the "Underwriter") from the Depositor and
will be offered by the Underwriter from time to time in negotiated transactions
or otherwise at varying prices to be determined at the time of sale. The
aggregate proceeds to the Depositor from the sale of the Class _-1 and Class _-2
Trust Certificates will be approximately $[ ], before deducting expenses payable
by the Depositor, subject to the terms and conditions set forth in the
Underwriting Agreement referred to herein under "Underwriting." The Trust
Certificates are offered by the Underwriter, subject to prior sale, when, as and
if delivered to and accepted by them, and subject to approval of certain legal
matters by counsel for the Underwriter and certain other conditions. The
Underwriter reserves the right to withdraw, cancel or modify such offer and to
reject orders in whole or in part. It is expected that delivery of the Trust
Certificates will be made in New York, New York on or about [ ] __, 199_ (the
"Closing Date") against payment therefor in immediately available funds.
-------------------------------
Merrill Lynch & Co.
---------------------
S-2
<PAGE>
The date of this Prospectus Supplement is [ ] __,199_.
(cover page continued)
As and to the extent described herein, collections received by the
Trustee with respect to the Underlying Securities will be distributed to Trust
Certificateholders in the manner and priority described herein.
The Trust Certificates initially will be represented by certificates
registered in the name of Cede & Co. ("Cede"), as nominee of The Depository
Trust Company (the "Depositary" or "DTC"). The interests of beneficial owners of
such Trust Certificates will be represented by book entries on the records of
persons that have accounts with DTC for such Global Security ("Participants").
Definitive certificates will be available for such Trust Certificates only under
the limited circumstances described herein. See "Description of the Trust
Certificates--Definitive Trust Certificates".
THE TRUST CERTIFICATES OFFERED BY THIS PROSPECTUS SUPPLEMENT WILL
CONSTITUTE A SEPARATE SERIES OF TRUST CERTIFICATES BEING OFFERED BY THE
DEPOSITOR PURSUANT TO ITS PROSPECTUS DATED [ ] __, 1997, OF WHICH THIS
PROSPECTUS SUPPLEMENT IS A PART AND WHICH ACCOMPANIES THIS PROSPECTUS
SUPPLEMENT. THE PROSPECTUS CONTAINS IMPORTANT INFORMATION REGARDING THIS
OFFERING WHICH IS NOT CONTAINED HEREIN, AND PROSPECTIVE INVESTORS ARE URGED TO
READ THE PROSPECTUS AND THIS PROSPECTUS SUPPLEMENT IN FULL. IN PARTICULAR,
INVESTORS SHOULD CONSIDER CAREFULLY THE FACTORS SET FORTH UNDER "RISK FACTORS"
IN THE PROSPECTUS AND IN THIS PROSPECTUS SUPPLEMENT.
For definitions of certain terms used herein, refer to "Index of
Defined Terms", beginning on page I-1 of the Prospectus.
S-3
<PAGE>
PROSPECTUS SUPPLEMENT SUMMARY
The following summary of certain information does not purport to be
complete and is qualified in its entirety by reference to the detailed
information appearing elsewhere herein and in the Prospectus. Certain
capitalized terms used herein are defined elsewhere in this Prospectus
Supplement or, to the extent not defined herein, have the meanings assigned to
such terms in the Prospectus. See "Index of Defined Terms."
THE TRUST CERTIFICATES
SECURITIES OFFERED.......................... The Trust Certificates, Series
199_-[ ] (the "Trust
Certificates"). The Trust
Certificates will be offered in
two Classes, Class _-1 and Class
_-2. Each Class of Trust
Certificates represents a
proportionate undivided beneficial
interest in certain distributions
to be made by the Trust, and will
be issued pursuant to the Trust
Agreement (as defined below).
Payments on the Trust Certificates
will be derived solely from the
Underlying Securities.
THE TRUST................................... The Trust Certificates, Series
199_-[ ] Trust (the "Trust"). The
Trust will be formed pursuant to
the Supplement, Series 1997-[ ]
(the "Series Supplement"), which
incorporates the Standard Terms
(together with the Series
Supplement, the "Trust Agreement
by and between the Depositor and
the Trustee.
DEPOSITOR................................... Merrill Lynch Depositor, Inc. (the
"Depositor"), a company
incorporated in the State of
Delaware as an indirect, wholly
owned, limited-purpose subsidiary
of Merrill Lynch & Co., will
deposit the Underlying Securities
into the Trust. See "The
Depositor" in the Prospectus.
TRUSTEE..................................... United States Trust Company of New
York. The Trustee will receive
compensation at the rate set forth
in the Series Supplement, payable
on each Distribution Date (the
"Trustee Fee").
CLOSING DATE................................ [ ] __, 199_.
CUT-OFF DATE................................ [ ] __, 199_.
TRUST ASSETS................................ The initial assets of the Trust
will be $[ ] aggregate principal
amount of the [ ]%
[Debentures][Senior Notes][other
securities] due [ ] __, 20__ (the
"Underlying Securities") issued by
the Underlying Securities Issuer.
INITIAL AGGREGATE PRINCIPAL
AMOUNT OF CLASS _-1
TRUST CERTIFICATES........................ $[ ].
S-4
<PAGE>
PRINCIPAL AMOUNT AT MATURITY
OF CLASS _-2 TRUST CERTIFICATES........... $[ ].
FINAL SCHEDULED DISTRIBUTION
DATE ................................... [ ] __, 20__.
DISTRIBUTIONS
GENERAL................................ The Underlying Securities will be
the sole source of distributions
on the Trust Certificates.
All distributions of payments (in
the case of the Class _-1 Trust
Certificates) or Underlying
Securities (in the case of the
Class _-2 Trust Certificates)
will be made on a pro rata basis
to the holders of the respective
Trust Certificate Class.
CLASS _-1 TRUST CERTIFICATES........... The Class _-1 Trust Certificates
will be issued in an initial
principal amount of $[ ]. The
Class _-1 Trust Certificates will
be entitled to receive, on [ ] __
and [ ] __ of each year (or if
such date is not a Business Day,
the next succeeding Business Day)
(each, a "Distribution Date"),
commencing [ ] __, 199_ and ending
on the Final Scheduled
Distribution Date, the interest
payment, if any, received on the
Underlying Securities, which will
represent a return of principal on
the Class _-1 Trust Certificates
in accordance with the
amortization schedule set forth
herein under "Description of the
Trust Certificates--General", and
the payment of interest at a rate
of [ ]% per annum on the
outstanding principal amount of
the Class _-1 Trust Certificates.
The Class _-1 Trust Certificates
will amortize on each Distribution
Date on a level yield basis.
CLASS _-2 TRUST CERTIFICATES...........
The Class _-2 Trust Certificates
will have a principal amount at
maturity of $[ ] and will not be
entitled to distributions of
interest. The Class _-2 Trust
Certificates will accrete
principal at the rate of [ ]% per
annum to a principal amount of
$[ ] on [ ] __, 20__ in accordance
with the accretion schedule set
forth herein under "Description of
the Trust Certificates--General".
On [ ] __, 20__ (the "Final
Scheduled Distribution Date"), the
Class _-2 Trust Certificates will
be entitled to a distribution of
all of the Underlying Securities
held by the Trust as of such date.
SALE OR DISTRIBUTION OF
THE TRUST CERTIFICATES IN THE EVENT
OF A DEFAULT ON THE
UNDERLYING SECURITIES..................... In the event of a payment default
on the Underlying Securities or
acceleration of the maturity of
the Underlying Securities, the
Trustee will (x) sell the
Underlying Securities and allocate
the proceeds from the sale of the
Underlying Securities between the
Class _-1 Trust Certificates and
the Class _-2 Trust Certificates
S-5
<PAGE>
in accordance with the Allocation
Ratio (as set forth below) or (y)
distribute the Underlying
Securities between the Class _-1
Trust Certificates and the Class
_-2 Trust Certificates in
accordance with the Allocation
Ratio.
As used herein, "Allocation Ratio"
means the ratio of the Class _-1
Allocation to the Class _-2
Allocation. The "Class _-1
Allocation" means the sum of the
present values (discounted at the
rate of [ ]% per annum) of each of
the unpaid interest coupons due or
to become due on the Underlying
Securities on or prior to the
Final Scheduled Distribution Date.
The "Class _-2 Allocation" means
the sum of the present values
(discounted at the rate of [ ]%
per annum) of each of the unpaid
interest coupons due or to become
due on the Underlying Securities
after the Final Scheduled
Distribution Date plus the sum of
the present values (discounted as
the rate of [ ]% per annum) of
each of the principal amounts of
the Underlying Securities (in each
case assuming that the Underlying
Securities were paid when due and
were not redeemed prior to their
stated maturity).
DISTRIBUTION ON THE TRUST CERTIFICATES
UPON THE ADVANCE OF MATURITY OR
OPTIONAL REDEMPTION
OF THE UNDERLYING SECURITIES
FOLLOWING A TAX EVENT..................... In the event of an optional
redemption of the Underlying
Securities upon the occurrence of
a Tax Event (as defined below)
(see "Description of the
Underlying Securities--Advance of
Maturity Date or Optional
Redemption in Case of Tax Event"
herein), the proceeds of such
redemption will be allocated
between the Class _-1 Trust
Certificates and the Class _-2
Trust Certificates in accordance
with the Allocation Ratio.
In the event of an advance of
maturity of the Underlying
Securities upon the occurrence of
a Tax Event (see "Description of
the Underlying Securities--Advance
of Maturity Date or Optional
Redemption in Case of Tax Event"
herein), the Underlying Securities
will be sold and the proceeds from
such sale will be allocated
between the Class _-1 Trust
Certificates and the Class _-2
Trust Certificates in accordance
with the Allocation Ratio.
RECORD DATES................................ The day immediately preceding each
Distribution Date.
DENOMINATIONS AND
SPECIFIED CURRENCY........................ The Trust Certificates will be
denominated and payable in U.S.
dollars (the "Specified
Currency"). The Trust Certificates
will be issued in minimum
principal amounts of [$____] and
in integral multiples thereof.
[One Trust Certificate of each
Class may be issued in an amount
other than an integral multiple of
the applicable minimum
denomination.]
S-6
<PAGE>
FORM OF SECURITY............................ Book-entry Trust Certificates with
The Depository Trust Company
("DTC"), except in certain limited
circumstances. See "Description of
the Trust Certificates--Definitive
Trust Certificates". Distributions
thereon will be settled in
immediately available (same-day)
funds.
CUSIP NUMBERS............................... Class _-1 Trust Certificates: [ ].
Class _-2 Trust Certificates: [ ].
FEDERAL INCOME
TAX CONSEQUENCES.......................... In the opinion of tax counsel to
the Trust, the Trust will be
classified for U.S. Federal income
tax purposes as a grantor trust
and not as an association (or
publicly traded partnership)
taxable as a corporation. The
Class _-1 Trust Certificates will
be treated by the Trust as
newly-issued self-amortizing debt
obligations maturing on the Final
Scheduled Distribution Date,
although it is unclear whether the
Trust Certificates will receive
such treatment under the Internal
Revenue Code of 1986, as amended
(the "Code"). The Class _-2 Trust
Certificates will be deemed to be
issued with original issue
discount ("OID"). See "Federal
Income Tax Consequences".
LISTING..................................... Application will be made to list
the Class _-1 and Class _-2 Trust
Certificates on the New York Stock
Exchange ("NYSE").
RATINGS..................................... It is a condition to the issuance
of the Trust Certificates that the
Trust Certificates have ratings
assigned by Moody's Investors
Service, Inc. ("Moody's") and by
Standard & Poor's Ratings
Services, a division of the
McGraw-Hill Companies, Inc.
("S&P"), equivalent to the ratings
of the Underlying Securities,
which, as of the date of this
Prospectus Supplement were "[ ]"
by Moody's and "[ ]" by S&P.
The rating of the Trust
Certificates by Moody's addresses
the likelihood of the ultimate
payment of principal and interest
on the Trust Certificates or any
Underlying Securities distributed
in respect thereof. The rating of
the Trust Certificates by S&P
addresses the likelihood of timely
receipt of interest on the Class
_-1 Trust Certificates or any
Underlying Securities distributed
in respect of Trust Certificates.
There is no assurance that any
such rating will continue for any
period of time or that it will not
be revised or withdrawn entirely
by the related rating agency if,
in its judgment, circumstances
(including, without limitation,
the rating of the Underlying
Securities) so warrant. A revision
or withdrawal of such rating may
have an adverse effect on the
market price of Trust
Certificates. A security rating is
not a recommendation to buy, sell
or hold securities. The rating on
the Trust Certificates does not
constitute a statement regarding
the occurrence or frequency of
redemption on, the Underlying
Securities, and the corresponding
effect on yield to investors. See
"Ratings".
S-7
<PAGE>
ERISA CONSIDERATIONS........................ If an employee benefit plan
subject to the Employee Retirement
Income Security Act of 1974, as
amended ("ERISA"), including an
individual retirement account (an
"IRA") or Keogh plan (each, a
"Plan"), acquires an equity
interest in the underlying assets
of an entity such as the Trust,
certain aspects of such
investment, including the
operation of the Trust, might be
subject to the prohibited
transaction provisions under ERISA
and the Code, unless certain
exemptions apply. A Plan should
consult its advisors concerning
the ability of such Plan to
purchase Trust Certificates under
ERISA or the Code. These issues
are discussed more fully below
under "ERISA Considerations".
S-8
<PAGE>
THE UNDERLYING SECURITIES
The Underlying Securities were issued under an Indenture dated as of
[ ] __, 19__, between the Underlying Securities Issuer and [Name of Trustee]
providing for the issuance of debt securities by the Underlying Securities
Issuer (the "Debt Securities"). The Underlying Securities were part of an issue
totalling $[ ] million. The following summary of certain provisions of the
Underlying Securities and the Indenture does not purport to be complete and is
based upon the Prospectus dated [ ] __, 19__, [and the Prospectus Supplement
dated [ ] __, 19__,] of the Underlying Securities Issuer, and is subject to, and
is qualified in its entirety by reference to, all provisions of the Underlying
Securities and the Indenture, including the definitions therein of certain
terms.
UNDERLYING SECURITIES....................... $[ ] aggregate principal amount of
the [ ]% [Debentures][Senior
Notes][other securities] due [ ]
__, 20__, comprising a portion of
a [fixed rate, publicly traded,
unsecured debt, or other eligible,
security issue of] the Underlying
Securities Issuer. Interest on the
Underlying Securities accrues at
the Underlying Securities Rate for
each Underlying Securities Accrual
Period and is payable on each
Underlying Securities Payment
Date. The entire principal amount
of the Underlying Securities will
be payable on the Underlying
Securities Maturity Date.
UNDERLYING SECURITIES
ISSUER.................................... The Underlying Securities Issuer
is a [ ] corporation whose
principal executive offices are
located at [Address], and whose
telephone number is (___)
___-____. See "Description of the
Underlying Securities".
UNDERLYING SECURITIES
ISSUER: Commission
Filing Number............................ [ ]
UNDERLYING SECURITIES:
RANKING................................... According to the Prospectus
relating to the Underlying
Securities, the Underlying
Securities are unsecured and
unsubordinated indebtedness of the
Underlying Securities Issuer.
UNDERLYING SECURITIES:
COLLATERAL................................ None.
UNDERLYING SECURITIES:
ORIGINAL ISSUE DATE....................... [ ] __, 19__.
UNDERLYING SECURITIES:
ORIGINAL AMOUNT ISSUED.................... $[ ].
UNDERLYING SECURITIES:
MATURITY DATE............................. [ ] __, 20__.
UNDERLYING SECURITIES:
AMORTIZATION.............................. None.
S-9
<PAGE>
UNDERLYING SECURITIES:
INTEREST PAYMENT DATES.................... [ ] __ and [ ] __.
UNDERLYING SECURITIES:
INTEREST RATE............................. [ ]% per annum.
UNDERLYING SECURITIES:
INTEREST ACCRUAL PERIODS.................. [Semi-annual].
UNDERLYING SECURITIES:
DENOMINATIONS;
CURRENCY.................................. The Underlying Securities are
denominated and payable in U.S.
dollars and are available in
minimum denominations of [$1,000]
and integral multiples thereof.
UNDERLYING SECURITIES:
FORM ................................... Book-entry debt securities with
DTC [listed on the NYSE] [specify
other listing, if any].
UNDERLYING SECURITIES:
CUSIP NUMBER.............................. [ ].
UNDERLYING SECURITIES:
RECORD DATES.............................. [ ] and [ ].
UNDERLYING SECURITIES TRUSTEE............... [Name of Trustee] (the "Underlying
Securities Trustee"). The
Underlying Securities have been
issued pursuant to an indenture
dated as of [ ] __, 19__ as
amended or supplemented from time
to time (the "Indenture"), between
the Underlying Securities Trustee
and the Underlying Securities
Issuer.
UNDERLYING SECURITIES:
RATINGS AS OF THE DATE
OF THIS PROSPECTUS
SUPPLEMENT................................ "[ ]" by Moody's and "[ ]" by S&P
(each, a "Rating Agency, and
collectively, the "Rating
Agencies").
UNDERLYING SECURITIES:
INFORMATION WITH RESPECT TO
THE UNDERLYING SECURITIES
ISSUER.................................... [ ] is subject to the
informational requirements of the
Securities Exchange Act of 1934
(the "Exchange Act"), as amended,
and in accordance therewith files
reports, including reports on
Forms 10-K and 10-Q, and other
information with the Securities
and Exchange Commission (the
"Commission"). Such reports and
other information may be inspected
and copied at the public reference
facilities maintained by the
Commission at 450 Fifth
Street, N.W., Washington, D.C.
20549, and at the following
Regional Offices of the
Commission: New York
S-10
<PAGE>
Regional Office, Room 1100, 7
World Trade Center, New York, New
York 10048 and Chicago Regional
Office, Suite 1400, Northwestern
Atrium Center, 500 West Madison
Street, Suite 1400, Chicago,
Illinois 60661-2511, and copies of
such material can be obtained from
the Public Reference Section of
the Commission, Washington, D.C.
20549, at prescribed rates. Such
material may also be accessed
electronically by means of the
Commission's home page on the
Internet at http://www.sec.gov.
[In addition, reports and other
information concerning [the
Underlying Securities Issuer] may
also be inspected at the
Information Center of the New York
Stock Exchange Inc., 20 Broad
Street, New York, New York 10005.]
This Prospectus Supplement does not provide information with respect to
the Underlying Securities Issuer. No investigation of the Underlying Securities
Issuer (including, without limitation, no investigation as to its financial
condition or creditworthiness) or of the Underlying Securities (including,
without limitation, no investigation as to its rating) has been made. A
potential Trust Certificateholder should obtain and evaluate the same
information concerning the Underlying Securities Issuer as one would obtain and
evaluate if investing directly in the Underlying Securities or in other
securities issued by the Underlying Securities Issuer. None of the Depositor,
the Trustee, the Underwriter, or any of their affiliates, assumes any
responsibility for the accuracy or completeness of any publicly available
information of the Underlying Securities Issuer filed with the Commission or
otherwise made publicly available or considered by a purchaser of the Trust
Certificates in making its investment decision in connection therewith.
S-11
<PAGE>
RISK FACTORS
Prospective purchasers should consider, among other things, the
following factors (as well as the factors set forth under "Risk Factors" in the
Prospectus) in connection with an investment in the Trust Certificates.
Limited Liquidity
There can be no assurance that an active public market for any Series
of Trust Certificates will develop or, if a public market develops, as to the
liquidity of the trading market for such Trust Certificates. Merrill Lynch & Co.
has advised the Depositor that it intends to make a market in the Trust
Certificates, as permitted by applicable laws and regulations, after the
issuance thereof. Merrill Lynch & Co. is not obligated, however, to make a
market in the Trust Certificates of any Series or Class within such Series and
any such market-making activity may be discontinued at any time without notice
at the sole discretion of Merrill Lynch & Co. If an active public market for the
Trust Certificates does not develop or continue, the market prices and liquidity
of the Trust Certificates may be adversely affected.
Maturity and Yield Considerations; Reinvestment Risk
The yield realized by a holder of a Trust Certificate depends upon
several factors, including the purchase price of the Trust Certificates, the
time of acquisition, and whether a Tax Event occurs. The Depositor has not
formulated an opinion as to the likelihood of a Tax Event. If a Tax Event occurs
and the Underlying Securities Issuer exercises its right to advance the maturity
of or redeem the Underlying Securities, or if the Underlying Securities are paid
or sold prior to maturity as a result of a default, or because the Underlying
Securities Issuer ceases to file reports under the Exchange Act, an investor's
investment in the Trust Certificates and the Underlying Securities will have a
shorter average maturity than if such right were not exercised or if such
default had not occurred. Prevailing interest rates at the time of such early
redemption may be lower than the yield on the Trust Certificates. Therefore, an
investor in the Trust Certificates may be unable to realize a comparable yield
upon reinvestment of the funds from such early redemption.
Zero Coupon Nature of the Class _-2 Trust Certificates
Because the Class _-2 Trust Certificates do not receive allocations of
either interest or principal until the Final Scheduled Distribution Date, the
changes in market value of the Class _-2 Trust Certificates as a result of
changes in interest rates or spreads are expected to be more than for the
Underlying Securities. Although the Class _-2 Trust Certificates will not
receive any cash flow during the term of the Trust, the Class _-2 Trust
Certificates will be deemed to be issued with OID. See "Federal Income Tax
Consequences" herein.
Limited Assets
The Trust has no significant assets other than the Underlying
Securities. If the Underlying Securities are insufficient to make payments or
distributions on the Trust Certificates, no other assets will be available for
payment of the deficiency.
No Management of Underlying Securities
Except as described herein, the Trust will not dispose of any
Underlying Security, regardless of adverse events, financial or otherwise, which
may affect the value of the Underlying Security or the Underlying Securities
Issuer. If there is a payment default on any Underlying Security or any other
default which may result in acceleration of the Underlying Security, the Trust
will only dispose of or otherwise deal with the defaulted Underlying Security in
the manner provided in the Trust Agreement. If a payment default on or
acceleration of the Underlying Securities occurs, the Trust Agreement will
provide that the Trust will sell or distribute the Underlying Securities
notwithstanding market conditions at the time, and the Trustee will have no
discretion to
S-12
<PAGE>
do otherwise. Such sale or distribution may result in greater losses than might
occur if the Trust continued to hold the Underlying Securities.
Credit Risk
The Trust Certificates represent interests in obligations of a single
obligor. In particular, the Trust Certificates will be subject to all the risks
associated with a direct investment in unsecured debt obligations of the
Underlying Securities Issuer.
Underlying Securities are Unsecured
In a liquidation, holders of the Underlying Securities will be paid
only after holders of secured obligations of the Underlying Securities Issuer.
According to the Prospectus relating to the Underlying Securities, the
Underlying Securities are general unsecured obligations of the Underlying
Securities Issuer, which rank on a parity with all other unsecured and
unsubordinated indebtedness of the Underlying Securities Issuer, but which are
effectively subordinated to the Underlying Securities Issuer's existing and
future senior secured indebtedness to the extent of the collateral therefor.
No Investigation of Underlying Securities
None of the Depositor, the Underwriter or the Trustee will (i) make any
investigation of the business condition, financial or otherwise, of the
Underlying Securities Issuer, or (ii) verify any reports or information filed by
the Underlying Securities Issuer with the Commission. Investors are encouraged
to consider publicly available financial and other information regarding the
Underlying Securities Issuer. The issuance of the Trust Certificates should not
be construed as an endorsement by the Depositor, the Underwriter or the Trustee
of the financial condition or business prospects of the Underlying Securities
Issuer.
Ratings of the Trust Certificates Subject to Change
At the time of issuance, the Trust Certificates will have ratings
assigned by Moody's and S&P equivalent to the ratings of the Underlying
Securities, which, as of the date of this Prospectus Supplement were "[ ]" by
Moody's and "[ ]" by S&P. Any rating issued with respect to the Trust
Certificates is not a recommendation to purchase, sell or hold a security
inasmuch as such ratings do not comment on the market price of the Trust
Certificates or their suitability for a particular investor. There can be no
assurance that the ratings will remain for any given period of time or that the
ratings will not be revised or withdrawn entirely by the related Rating Agency
if, in its judgment, circumstances (including, without limitation, the rating of
the Underlying Securities) so warrant. A revision or withdrawal of such rating
may have an adverse effect on the market price of the Trust Certificates.
THE TRUST
The Trust will be formed pursuant to the Series Supplement, by and
between the Depositor and the Trustee. Concurrently with the execution and
delivery of the Series Supplement, the Depositor will deposit the Underlying
Securities into the Trust. The Trustee, on behalf of the Trust, will accept such
Underlying Securities and will deliver the Trust Certificates to or upon the
order of the Depositor.
The Underlying Securities were purchased in the secondary market. The
Underlying Securities were not acquired from the Underlying Securities Issuer as
part of any distribution by or pursuant to any agreement with the Underlying
Securities Issuer. The Underlying Securities Issuer is not participating in this
offering and will not receive any of the proceeds of the sale of the Underlying
Securities to the Depositor or the issuance of the Trust Certificates.
S-13
<PAGE>
DESCRIPTION OF THE UNDERLYING SECURITIES
General
The Underlying Securities represent the sole assets of the Trust that
are available to make Distributions in respect of the Trust Certificates. The
aggregate principal amount of the Underlying Securities is $[ ]. The primary
economic terms of the Underlying Securities are described in "Prospectus
Supplement Summary--The Underlying Securities" herein.
This Prospectus Supplement sets forth certain relevant terms with
respect to the Underlying Securities, but does not provide detailed information
with respect to the Underlying Securities or the Underlying Securities Issuer.
This Prospectus Supplement relates only to the Trust Certificates offered hereby
and does not relate to the Underlying Securities. All disclosure contained
herein with respect to the Underlying Securities Issuer and the Underlying
Securities is derived from publicly available documents.
The Underlying Securities Issuer is not participating in, and will not
receive any proceeds in connection with, the offering of the Trust Certificates.
The Underlying Securities were purchased in the secondary market and will be
deposited into the Trust. The Underlying Securities were not acquired either
from the Underlying Securities Issuer or pursuant to any distribution by or
agreement with the Underlying Securities Issuer.
The Underlying Securities convert into cash in a finite time period and
the Underlying Securities Issuer is (a) subject to the periodic reporting
requirements of the Exchange Act; and (b) eligible to use a Registration
Statement on Form S-3 for a primary offering. The rating on the Underlying
Securities will allow at least one investment-grade rating of the Trust
Certificates by a Rating Agency.
According to the Underlying Securities Issuer's publicly available
documents, its principal executive offices are located at [Address] and its
telephone number is (___) ___-____. The Underlying Securities Issuer is subject
to the informational requirements of the Exchange Act, and in accordance
therewith files reports and other information with the Commission. Such reports
and other information may be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following Regional Offices of the Commission: New York
Regional Office, Room 1100, 7 World Trade Center, New York, New York 10048 and
Chicago Regional Office, Suite 1400, Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and copies of such
material can be obtained from the Public Reference Section of the Commission,
Washington, D.C. 20549, at prescribed rates. Such material may also be accessed
electronically by means of the Commission's home page on the Internet at
http://www.sec.gov. [In addition, reports and other information concerning the
Underlying Securities Issuer may also be inspected at the Information Center of
the New York Stock Exchange Inc., 20 Broad Street, New York, New York 10005.]
Although the Depositor has no reason to believe the information
concerning the Underlying Securities or the Underlying Securities Issuer
contained in the Prospectus related to the Underlying Securities is not
reliable, the Depositor has not participated in the preparation of such
documents, or made any due diligence inquiry with respect to the information
provided therein. There can be no assurance that events affecting the Underlying
Securities or the Underlying Securities Issuer have not occurred or have not yet
been publicly disclosed which would affect the accuracy or completeness of the
publicly available documents described above.
THE TRUST WILL HAVE NO ASSETS OTHER THAN UNDERLYING SECURITIES FROM
WHICH TO MAKE DISTRIBUTIONS OF AMOUNTS DUE IN RESPECT OF THE TRUST CERTIFICATES.
CONSEQUENTLY, THE ABILITY OF TRUST CERTIFICATEHOLDERS TO RECEIVE DISTRIBUTIONS
IN RESPECT OF THE TRUST CERTIFICATES WILL DEPEND ENTIRELY ON THE TRUST'S RECEIPT
OF PAYMENTS ON THE UNDERLYING SECURITIES. PROSPECTIVE PURCHASERS OF THE TRUST
S-14
<PAGE>
CERTIFICATES SHOULD CONSIDER CAREFULLY THE FINANCIAL CONDITION OF THE UNDERLYING
SECURITIES ISSUER AND ITS ABILITY TO MAKE PAYMENTS IN RESPECT OF SUCH UNDERLYING
SECURITIES. THIS PROSPECTUS SUPPLEMENT RELATES ONLY TO THE TRUST CERTIFICATES
BEING OFFERED HEREBY AND DOES NOT RELATE TO THE UNDERLYING SECURITIES OR THE
UNDERLYING SECURITIES ISSUER. ALL INFORMATION CONTAINED IN THIS PROSPECTUS
SUPPLEMENT REGARDING THE UNDERLYING SECURITIES ISSUER AND THE UNDERLYING
SECURITIES IS DERIVED FROM PUBLICLY AVAILABLE DOCUMENTS. NEITHER THE DEPOSITOR,
THE UNDERWRITER NOR THE TRUSTEE PARTICIPATED IN THE PREPARATION OF SUCH
DOCUMENTS OR TAKES ANY RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF THE
INFORMATION PROVIDED THEREIN.
Underlying Securities Indenture
The Underlying Securities were issued under an Indenture dated as of
[ ] __, 19__ as amended or supplemented from time to time (the "Indenture"),
between the Underlying Securities Issuer and the Underlying Securities Trustee
providing for the issuance of Debt Securities. The Underlying Securities were
[ ]% of an issue totalling $[ ] million. The following summaries of certain
provisions of the Debt Securities and the Indenture do not purport to be
complete and are based upon the Prospectus dated [ ] __ 19__[, and the
Prospectus Supplement dated [ ] __, 19__ [(together, ]the "Underlying Securities
Prospectus")], relating to the Debt Securities, of which the Underlying
Securities are a series of the Underlying Securities Issuer, and are subject to,
and are qualified in their entirety by reference to, all provisions of the
Underlying Securities and the Indenture, including the definitions therein of
certain terms. Wherever particular sections or defined terms of the Indenture
are referred to, it is intended that such sections or defined terms shall be
incorporated herein by reference. Investors should refer to the Indenture itself
for all terms governing the Underlying Securities.
[The Indenture does not limit the amount of Debt Securities which can
be issued thereunder and additional Debt Securities may be issued thereunder up
to the aggregate principal amount which may be authorized from time to time by,
or pursuant to a resolution of, the Underlying Securities Issuer's Board of
Directors or by supplemental indenture.] Reference is made to the Prospectus
Supplement of the Underlying Securities for the terms of the Underlying
Securities not set forth herein. Principal, premium, if any, and interest will
be payable, and the Underlying Securities will be transferable, in the manner
described in the Underlying Securities Prospectus.
The Underlying Securities constitute unsecured and unsubordinated
indebtedness of the Underlying Securities Issuer, and rank on a parity with the
Underlying Securities Issuer's other indebtedness. [However, since the
Underlying Securities Issuer is a holding company, the right of the Underlying
Securities Issuer and, hence, the right of creditors of the Underlying
Securities Issuer (including the holders of the Underlying Securities) to
participate in any distribution of the assets of any subsidiaries of the
Underlying Securities Issuer, whether upon liquidation, reorganization, or
otherwise, is subject to prior claims of creditors of the subsidiary, except to
the extent that claims of the Underlying Securities Issuer itself as a creditor
of a subsidiary may be recognized.]
Federal income tax consequences applicable to the Underlying Securities
are described in the Underlying Securities Prospectus.
[Covenants; Events of Default]
The Indenture limits the Underlying Securities Issuer's ability to
engage in certain activities and transactions and requires that the Underlying
Securities Issuer perform certain obligations with respect to the Underlying
Securities. [Describe common restrictive, financial and other covenants on the
Underlying Securities Issuer contained in the Indenture.]
S-15
<PAGE>
[The following is a summary of the Underlying Security Events of
Default for the Debt Securities:
(a) failure to make payments of principal (and premium, if
any) and interest to holders of the Debt Securities in the time periods
given in the Indenture;
(b) material breaches of certain representations, warranties
or covenants or failure to observe or perform in any material respect
any covenant or agreement under an Indenture continuing for a specified
period of time after notice thereof is given to the Underlying
Securities Issuer by the Underlying Securities Trustee or the holders
of not less than a specified percentage of the Debt Securities;
(c) failure by the Underlying Securities Issuer to make any
required payment of principal (and premium, if any) or interest with
respect to certain of the other outstanding debt obligations of the
Underlying Securities Issuer or the acceleration by or on behalf of the
holders thereof of such securities; [and]
(d) certain events of bankruptcy or insolvency relating to the
Underlying Securities Issuer and the subsidiaries thereof; and
[(e) describe any additional events of default with respect to
the Underlying Securities].]
Advance of Maturity Date; Optional Redemption in Case of Tax Event
The Underlying Securities may not be redeemed by the Underlying
Securities Issuer except if a Tax Event occurs. A "Tax Event" is a change in the
treatment of such Underlying Securities under the Code pursuant to which an
Underlying Securities Issuer has the right to shorten the maturity of or
repurchase such Underlying Securities. [Describe specific terms of tax call]
Concerning the Underlying Securities Trustee
The Underlying Securities Issuer and certain of its affiliates may
maintain banking relationships in the ordinary course of business with the
Underlying Securities Trustee. In addition, the Underlying Securities Trustee
and certain of its affiliates may serve as trustee, authenticating agent, or
paying agent with respect to certain Debt Securities of the Underlying
Securities Issuer and certain of its affiliates.
Global Underlying Securities
The Underlying Securities and the other Debt Securities comprising the
same series were issued in the form of one or more fully registered Global
Securities that were deposited with, or on behalf of, DTC as more fully
described in the Underlying Securities Prospectus. Unless and until it is
exchanged for Debt Securities in definitive registered form, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee of such
successor.
Ownership of beneficial interests in a Global Security will be limited
to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary for such Global Security or on the record of Participants. The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
S-16
<PAGE>
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Underlying
Securities represented by such Global Security for all purposes under the
Indenture governing such Underlying Securities. Except as provided below, the
Trust as the owner of beneficial interests in a Global Security will not be
entitled to have Underlying Securities of the series represented by such Global
Security registered in its name, will not receive or be entitled to receive
physical delivery of Underlying Securities of such series in definitive form and
will not be considered the owners or holders thereof under the Indenture
governing such Underlying Securities. Principal, premium, if any, and interest
payments on Underlying Securities registered in the name of a Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be, as
the registered owner of the Global Security representing such Underlying
Securities. Neither the Underlying Securities Issuer, the Underlying Securities
Trustee, any Paying Agent nor the Security Registrar for such Underlying
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security for such Underlying Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Underlying Securities Issuer may at any time and in its sole
discretion determine not to have the Underlying Securities represented by a
Global Underlying Security and, in such event, will issue Underlying Securities
in definitive form in exchange for the Global Underlying Security representing
such Underlying Securities.
DESCRIPTION OF THE TRUST CERTIFICATES
General
The Trust Certificates will be denominated and distributions with
respect thereto will be payable in U.S. dollars (the "Specified Currency"). The
Class _-1 Trust Certificates have an initial aggregate principal amount of $[ ].
The Class _-2 Trust Certificates have a principal amount at maturity of $[ ].
The holders of the Class _-1 Trust Certificates will be entitled to
receive, on each Distribution Date, commencing [ ] __, 199_ and ending on the
Final Scheduled Distribution Date, the interest, if any, received on the
Underlying Securities, which will represent a return of principal on the Class
_-1 Trust Certificates in accordance with the amortization schedule set forth
below, and the payment of interest at a rate of [ ]% per annum on the
outstanding principal amount of the Class _-1 Trust Certificates. The Class _-1
Trust Certificates will amortize on each Distribution Date on a level yield
basis. The Class _-1 Trust Certificates generally will not be entitled to any
allocation of any principal payments received on the Underlying Securities.
Interest on the Class _-1 Trust Certificates will be calculated on a
360-day year of twelve 30-day months and will accrue from and including the
prior Distribution Date (or, in the case of the first Interest Accrual Period,
from and including [ ] __, 199_) to but excluding the current Distribution Date.
The Class _-2 Trust Certificates will be issued in an initial principal
amount of $[ ] and the holders thereof will not be entitled to distributions of
interest. The Class _-2 Trust Certificates will accrete principal at the rate of
[ ]% per annum, in accordance with the accretion schedule set forth below, to a
principal amount of $[ ] on [ ] __, 20__. On [ ] __, 20__ the holders of the
Class _-2 Trust Certificates will be entitled to a distribution of all of the
Underlying Securities held by the Trust as of such date. On or prior to the 60th
day preceding [ ] __, 20__, the Trustee shall request instructions from the
registered holders of the Class _-2 Trust Certificates regarding the account or
accounts to which transfer of the Underlying Securities should be made, and
other information relevant to such transfer.
S-17
<PAGE>
AMORTIZATION SCHEDULE--CLASS _-1 TRUST CERTIFICATES
<TABLE>
<CAPTION>
PRINCIPAL TOTAL INTEREST OUTSTANDING
INTEREST PAYABLE AMORTIZATION PLUS PRINCIPAL PRINCIPAL ON
CLOSING DATE OR ON DISTRIBUTION ON DISTRIBUTION PAYABLE ON CLOSING DATE OR
DISTRIBUTION DATE DATE DATE DISTRIBUTION DATE DISTRIBUTION DATE*
----------------- ---------------- --------------- ----------------- ------------------
<S> <C> <C> <C> <C>
[ ] __, 1997 ...... $[ ]
[ ] __, 1997 ...... $[ ] $[ ] $[ ] [ ]
[ ] __, 1998 ...... [ ] [ ] [ ] [ ]
[ ] __, 1998 ...... [ ] [ ] [ ] [ ]
[ ] __, 1999 ...... [ ] [ ] [ ] [ ]
[ ] __, 1999 ...... [ ] [ ] [ ] [ ]
[ ] __, 2000 ....... [ ] [ ] [ ] [ ]
[ ] __, 2000 ....... [ ] [ ] [ ] [ ]
[ ] __, 2001 ....... [ ] [ ] [ ] [ ]
[ ] __, 2001 ....... [ ] [ ] [ ] [ ]
[ ] __, 2002 ....... [ ] [ ] [ ] [ ]
[ ] __, 2002 ....... [ ] [ ] [ ] [ ]
[ ] __, 2003 ....... [ ] [ ] [ ] [ ]
[ ] __, 2003 ....... [ ] [ ] [ ] [ ]
[ ] __, 2004 ....... [ ] [ ] [ ] [ ]
[ ] __, 2004 ....... [ ] [ ] [ ] [ ]
[ ] __, 2005 ....... [ ] [ ] [ ] [ ]
[ ] __, 2005 ....... [ ] [ ] [ ] [ ]
[ ] __, 2006 ....... [ ] [ ] [ ] [ ]
[ ] __, 2006 ....... [ ] [ ] [ ] [ ]
[ ] __, 2007 ....... [ ] [ ] [ ] [ ]
[ ] __, 2007 ....... [ ] [ ] [ ] [ ]
[ ] __, 2008 ....... [ ] [ ] [ ] [ ]
[ ] __, 2008 ....... [ ] [ ] [ ] [ ]
[ ] __, 2009 ....... [ ] [ ] [ ] [ ]
[ ] __, 20__ ....... [ ] [ ] [ ] 0
</TABLE>
- ---------------
* Principal amount on Closing Date or at close of business on the Distribution
Date.
S-18
<PAGE>
ACCRETION SCHEDULE--CLASS _-2 TRUST CERTIFICATES
<TABLE>
<CAPTION>
PRINCIPAL TOTAL INTEREST ACCRETED
INTEREST PAYABLE AMORTIZATION PLUS PRINCIPAL PRINCIPAL ON
CLOSING DATE OR ON DISTRIBUTION ON DISTRIBUTION PAYABLE ON CLOSING DATE OR
DISTRIBUTION DATE DATE DATE DISTRIBUTION DATE DISTRIBUTION DATE*
----------------- ---------------- --------------- ----------------- ------------------
<S> <C> <C> <C> <C>
[ ] __, 1997 ....... $[ ]
[ ] __, 1997 ....... $[ ] $[ ] $[ ] [ ]
[ ] __, 1998 ....... [ ] [ ] [ ] [ ]
[ ] __, 1998 ....... [ ] [ ] [ ] [ ]
[ ] __, 1999 ....... [ ] [ ] [ ] [ ]
[ ] __, 1999 ....... [ ] [ ] [ ] [ ]
[ ] __, 2000 ....... [ ] [ ] [ ] [ ]
[ ] __, 2000 ....... [ ] [ ] [ ] [ ]
[ ] __, 2001 ....... [ ] [ ] [ ] [ ]
[ ] __, 2001 ....... [ ] [ ] [ ] [ ]
[ ] __, 2002 ....... [ ] [ ] [ ] [ ]
[ ] __, 2002 ....... [ ] [ ] [ ] [ ]
[ ] __, 2003 ....... [ ] [ ] [ ] [ ]
[ ] __, 2003 ....... [ ] [ ] [ ] [ ]
[ ] __, 2004 ....... [ ] [ ] [ ] [ ]
[ ] __, 2004 ....... [ ] [ ] [ ] [ ]
[ ] __, 2005 ....... [ ] [ ] [ ] [ ]
[ ] __, 2005 ....... [ ] [ ] [ ] [ ]
[ ] __, 2006 ....... [ ] [ ] [ ] [ ]
[ ] __, 2006 ....... [ ] [ ] [ ] [ ]
[ ] __, 2007 ....... [ ] [ ] [ ] [ ]
[ ] __, 2007 ....... [ ] [ ] [ ] [ ]
[ ] __, 2008 ....... [ ] [ ] [ ] [ ]
[ ] __, 2008 ....... [ ] [ ] [ ] [ ]
[ ] __, 2009 ....... [ ] [ ] [ ] [ ]
[ ] __, 20__ ....... [ ] [ ] [ ] [ ]
</TABLE>
- --------------
* Principal amount on Closing Date or at close of business on the Distribution
Date.
The Trust Certificates will be delivered in registered form. The Trust
Certificates will be issued, maintained and transferred on the book-entry
records of DTC and its Participants in minimum principal amounts of $[----] and
integral multiples thereof. [One Trust Certificate of each Class may be issued
in an amount other than an integral multiple of the applicable minimum
denomination.] Each Class of Trust Certificates will each initially be
represented by one or more global certificates registered in the name of the
nominee of DTC (together with any successor clearing agency selected by the
Depositor, the "Clearing Agency") except as provided below. The Depositor has
been informed by DTC that DTC's nominee will be Cede. No holder of any such
Trust Certificate will be entitled to receive a certificate representing such
person's interest, except as set forth below under "--Definitive Trust
Certificates". Unless and until Definitive Trust Certificates are issued under
the limited circumstances described herein, all references to actions by Trust
Certificateholders with respect
S-19
<PAGE>
to any such Trust Certificates shall refer to actions taken by DTC upon
instructions from its Participants. See "--Definitive Trust Certificates" below
and "Description of Trust Certificates--Global Securities" in the Prospectus.
Under the rules, regulations and procedures creating and affecting DTC
and its operations, DTC will take action permitted to be taken by a Trust
Certificateholder under the Trust Agreement only at the direction of one or more
Participants to whose DTC account such Trust Certificates are credited.
Additionally, DTC will take such actions with respect to specified Voting Rights
only at the direction and on behalf of Participants whose holdings of such
certificates evidence such specified Voting Rights. DTC may take conflicting
actions with respect to Voting Rights, to the extent that Participants whose
holdings of Trust Certificates evidence such Voting Rights authorize divergent
action.
Definitive Trust Certificates
Definitive Trust Certificates will be issued to Trust
Certificateholders or their nominees, respectively, rather than to DTC or its
nominee, only if (i) the Depositor advises the Trustee in writing that DTC is no
longer willing or able to discharge properly its responsibilities as Clearing
Agency with respect to the Trust Certificates and the Depositor is unable to
locate a qualified successor or (ii) the Depositor, at its option, elects to
terminate the book-entry system through DTC.
Upon the occurrence of any event described in the immediately preceding
paragraph, the Trustee is required to notify all Participants of the
availability through DTC of Definitive Trust Certificates. Upon surrender by DTC
of the definitive certificates representing the Trust Certificates and receipt
of instructions for re-registration, the Trustee will reissue such Trust
Certificates as Definitive Trust Certificates issued in the respective principal
amounts owned by the individual owners of such Trust Certificates, and
thereafter the Trustee will recognize the holders of such Definitive Trust
Certificates as Trust Certificateholders under the Trust Agreement.
Listing on the New York Stock Exchange
Application will be made to list the Class _-1 and Class _-2 Trust
Certificates on the NYSE. There can be no assurance that the Trust Certificates,
once listed, will continue to be eligible for trading on the NYSE.
Collections and Distributions
Collections on the Underlying Securities that are received by the
Trustee for a Collection Period pursuant to the collection procedures described
herein and in the Prospectus and deposited from time to time into the Trust
Certificate Account will be applied by the Trustee on each applicable
Distribution Date to the following distributions in the following order of
priority, solely to the extent of Available Funds (as defined below) on such
Distribution Date:
(a) to the Trustee, the Trustee Fee and reimbursement for any
Ordinary Expenses, and for Extraordinary Expenses incurred by the
Trustee in accordance with the Trust Agreement pursuant to instructions
of not less than 100% of the Trust Certificateholders;
(b) to the holders of the Class _-1 Trust Certificates [and
the Retained Interest], interest at the rate of [ ]% per annum on the
principal amount of the Class _-1 Trust Certificates [and the Retained
Interest] and principal distributable on such Class _-1 Trust
Certificates on such Distribution Date;
S-20
<PAGE>
(c) to the holders of the Class_-1 Trust Certificates, if
available, any additional interest owed and paid by the Underlying
Securities Issuer as a result of delay in the receipt by the Trustee of
any payment on the Underlying Securities;
(d) to the holders of the Class _-2 Trust Certificates, on the
Final Scheduled Distribution Date only, a distribution of all
Underlying Securities held by the Trust as of such date; and
(e) to the extent there are Available Funds in the Certificate
Account, to any creditors of the Trust in satisfaction of liabilities
thereto.
"Available Funds" for any Distribution Date means the sum of all
amounts received on or with respect to the Underlying Securities during the
preceding Collection Period except for Eligible Investments. In order to
reimburse the Trustee for Extraordinary Expenses, however, not less than 100% of
the Trust Certificateholders may elect to sell a portion of the Underlying
Securities such that the proceeds of such sale would be sufficient to reimburse
the Trustee for such Extraordinary Expenses.
If the Trustee has not received payment on the Underlying Securities on
or prior to a Distribution Date, such distribution will be made upon receipt of
payment on the Underlying Securities. No additional amounts will accrue on the
Trust Certificates or be owed to Trust Certificateholders as a result of any
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 _-1 Trust Certificateholders. In the event of a payment default on the
Underlying Securities, approved Extraordinary Expenses (see "Description of the
Trust Agreement--The Trustee" herein) of the Trustee may be reimbursed to the
Trustee out of Available Funds before any distributions to Trust
Certificateholders are made.
All amounts received on or with respect to the Underlying Securities,
which are not distributed to Trust Certificateholders on the date of receipt,
shall be invested by the Trustee in Eligible Investments. Income on such
investments will constitute property of the Trust. "Eligible Investments" means,
with respect to the Trust Certificates, those investments consistent with the
Trust's status as a grantor trust under the Code and acceptable to the Rating
Agencies as being consistent with the rating of such Trust Certificates, as
specified in the Trust Agreement. Generally, Eligible Investments must be
limited to obligations or securities that mature not later than the Business Day
prior to the next succeeding Distribution Date.
There can be no assurance that collections received from the Underlying
Securities over a specified period will be sufficient to make all required
distributions to the Trust Certificateholders. To the extent Available Funds are
insufficient to make any such distributions due to any Class of Trust
Certificate, any shortfall will be carried over and will be distributable on the
next Distribution Date on which sufficient funds exist to pay such shortfalls.
The Depositor will pay the Ordinary Expenses of the Trustee.
Exchange of Trust Certificates
On each Distribution Date, or the next succeeding Business Day if such
Distribution Date is not a Business Day, Merrill Lynch & Co. or any of its
affiliates may, if it holds Class _-2 Trust Certificates of a certain principal
amount at maturity and Class _-1 Trust Certificates representing a like
outstanding principal amount thereof, notify the Trustee, not less than at least
30 (or such shorter period acceptable to the Trustee) but not more than 45 days
prior to such Distribution Date, that it intends to tender such Trust
Certificates to the Trustee on such Distribution Date; provided that such
distribution will not be made if either (i) it would 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 or (ii) such distribution
would affect the characterization of the Trust as a "grantor trust" under the
Code. See "Description of the Trust Certificates--Optional Exchange" in the
Prospectus. Upon such tender, the Trustee will deliver Deposited Assets having a
principal amount equal to the
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combined principal amounts of the Class _-1 Trust Certificates and Class _-2
Trust Certificates being tendered to such Trust Certificateholder.
Default on Underlying Securities
If there is a payment default on the Underlying Securities or an
acceleration of the maturity of the Underlying Securities, the Trustee will
[sell the Underlying Securities and allocate the proceeds from the sale of the
Underlying Securities between the Class _-1 Trust Certificates and the Class _-2
Trust Certificates in accordance with the Allocation Ratio][distribute the
Underlying Securities between the Class _-1 Trust Certificates and the Class _-2
Trust Certificates in accordance with the Allocation Ratio][submit to a vote of
the Trust Certificateholders to decide the appropriate remedy].
[Distributions upon Optional Redemption or Advance of Maturity
If there is an optional redemption of the Underlying Securities upon
the occurrence of a Tax Event (see "Description of the Underlying
Securities--Advance of Maturity Date or Optional Redemption in Case of Tax
Event" herein), the proceeds of such redemption will be allocated between the
Class _-1 Trust Certificates and the Class _-2 Trust Certificates in accordance
with the Allocation Ratio. If there is an advance of maturity of the Underlying
Securities upon the occurrence of a Tax Event (see "Description of the
Underlying Securities--Advance of Maturity Date or Optional Redemption in Case
of Tax Event" herein), the Underlying Securities will be sold and the proceeds
from such sale will be allocated between the Class _-1 Trust Certificates and
the Class _-2 Trust Certificates in accordance with the Allocation Ratio.]
THE DEPOSITOR
The Depositor, a Delaware corporation, is an indirect, wholly owned,
limited-purpose subsidiary of Merrill Lynch & Co., Inc. The Depositor has not
guaranteed and is not otherwise obligated with respect to the Trust
Certificates.
The principal office of the Depositor is located at c/o Merrill Lynch &
Co., World Financial Center, New York, New York 10281 (Telephone: (212)
449-1000). See "The Depositor" in the Prospectus.
DESCRIPTION OF THE TRUST AGREEMENT
General
The Trust Certificates will be issued pursuant to the Trust Agreement,
a form of which is filed as an exhibit to the Registration Statement. A Current
Report on Form 8-K relating to the Trust Certificates containing a copy of the
Series Supplement as executed will be filed by the Depositor with the Commission
following the issuance and sale of the Trust Certificates. The Trust created
under the Series Supplement will consist of (i) the Deposited Assets and (ii)
all payments on or collections in respect of the Deposited Assets due after the
Cut-off Date. Reference is made to the Prospectus for important information in
addition to that set forth herein regarding the Trust, the terms and conditions
of the Trust Agreement and the Trust Certificates. The following summaries of
certain provisions of the Trust Agreement do not purport to be complete and are
subject to the detailed provisions contained therein, to which reference is
hereby made for a full description of such provisions, including the definition
of certain terms used herein.
The discussions in the Prospectus under "Description of the Trust
Agreement--Advances in Respect of Delinquencies", "--Certain Matters Regarding
the Administrative Agent and the Depositor" (to the extent the discussion
relates to the Administrative Agent), "--Administrative Agent Termination
Events; Rights upon
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Administrative Agent Termination Event", and "--Evidence as to Compliance" are
not applicable to the Trust Certificates.
The Trustee
United States Trust Company of New York will act as the Trustee for the
Trust Certificates and the Trust pursuant to the Trust Agreement. The Trustee's
offices are located at 114 West 47th Street, New York, New York 10036 and its
telephone number is (212) 852-1623.
Pursuant to the Trust Agreement, the Trustee shall receive compensation
equal to [_______].
The Trust Agreement will provide that the Trustee may not take any
action which, in the Trustee's opinion, would or might cause it to incur
Extraordinary Expenses, unless (i) the Trustee is satisfied that it will have
adequate security or indemnity in respect of such costs, expenses and
liabilities, (ii) the Trustee has been instructed to do so by Trust
Certificateholders representing not less than the Required Percentage-Remedies
(as defined below) of the aggregate Voting Rights, and (iii) the Trust
Certificateholders have agreed that such costs will be paid by the Trustee (x)
from the Trust (in the case of an affirmative vote of 100% of the Trust
Certificateholders) or (y) out of the Trustee's own funds (in which case the
Trustee can receive reimbursement from the Trust Certificateholders voting in
favor of such proposal). Extraordinary Expenses that may be reimbursed to the
Trustee from the Trust may be reimbursed out of Available Funds on any
Distribution Date before any distributions to Trust Certificateholders on such
Distribution Date are made.
Events of Default
An event of default with respect to the Trust Certificates under the
Trust Agreement (an "Event of Default") will consist of (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 Indenture.
The Trust Agreement will provide that, within 10 days after the
occurrence of an Event of Default in respect of the Trust Certificates, the
Trustee will give notice to the Trust Certificateholders, transmitted by mail,
of all such uncured or unwaived Events of Default known to it. However, except
in the case of an Event of Default relating to the payment of principal 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 Trust Certificateholders.
No Trust Certificateholder will have the right to institute any
proceeding with respect to the Trust Agreement, unless (i) such Trust
Certificateholder previously has given to the Trustee written notice of a
continuing breach, (ii) Trust Certificateholders evidencing not less than the
Required Percentage-Remedies of the aggregate Voting Rights have requested in
writing that the Trustee institute such proceeding in its own name as Trustee,
(iii) such Trust Certificateholder or Trust Certificateholders have offered the
Trustee reasonable indemnity, (iv) the Trustee has for 15 days failed to
institute such proceeding and (v) no direction inconsistent with such written
request has been given to the Trustee during such 15-day period by Trust
Certificateholders evidencing not less than the Required Percentage-Remedies of
the aggregate Voting Rights. "Required Percentage-Remedies" shall mean 662/3% of
the Voting Rights.
Voting Rights
At all times, 100% of all Voting Rights will be allocated between the
Class _-1 Trust Certificates and the Class _-2 Trust Certificates in accordance
with the Allocation Ratio. Within each such Class, Voting Rights shall be
allocated among Trust Certificateholders in proportion to the then outstanding
principal amounts, or
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notional amounts, of their respective Trust Certificates. The "Required
Percentage-Amendment" of Voting Rights necessary to consent to such modification
or amendment shall be 662/3%. Notwithstanding the foregoing, in addition to the
other restrictions on modification and amendment, the Trustee will not enter
into any amendment or modification of the Trust Agreement which would adversely
affect in any material respect the interests of the holders of a Class of Trust
Certificates without the consent of the holders of 100% of such Class of Trust
Certificates; provided, however, that no such amendment or modification will be
permitted which would alter the status of the Trust as a grantor trust under the
Code. See "Description of the Trust Agreement--Modification and Waiver" in the
Prospectus.
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 such Underlying Securities as
permitted by DTC and except as otherwise limited by the Trust Agreement. If the
Trustee receives a request from DTC, the Underlying Securities Trustee or the
Underlying Securities Issuer for its consent to any amendment, modification or
waiver of the Underlying Securities, the 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
Trust Certificateholder of record as of such date. The Trustee shall request
instructions from the Trust 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 Trust
Certificates) as the Trust Certificates of the Trust were actually voted or not
voted by the Trust 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 _-1 Trust Certificateholders and the votes of
the Class _-2 Trust Certificateholders according to the Allocation Ratio;
provided, however, that, notwithstanding anything to the contrary, the Trustee
shall at no time vote 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 under the Code, (ii) which 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 an Underlying
Security event of default or an event which with the passage of time would
become an Underlying Security event of default and with the unanimous consent of
all outstanding Class _-1 and Class _-2 Trust Certificateholders, or (iii) which
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 Indenture
and only with the consent of Trust Certificateholders representing 100% of the
outstanding Class _-1 and Class _-2 Trust Certificates. The Trustee shall have
no liability for any failure to act resulting from Trust Certificateholders'
late return of, or failure to return, directions requested by the Trustee from
the Trust Certificateholders.
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 Class _-1 and Class _-2 Trust Certificateholders of
such offer as promptly as practicable. The Trustee must reject any such offer
unless the Trustee is directed by the affirmative vote of all of the holders of
the Class _-1 and Class _-2 Trust Certificates to accept such offer and the
Trustee has received the tax opinion described above.
If an event of default under the Indenture occurs and is continuing and
if directed by all of the outstanding Class _-1 and Class _-2 Trust
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. In connection with a vote concerning whether to declare the
acceleration of the Underlying
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Securities, the interests of the Trust Certificateholders may differ from each
other and from those of other holders of outstanding Debt Securities issued by
the Underlying Securities Issuer.
Termination of The Trust
The Trust shall terminate upon the earliest to occur of (i) the payment
in full or sale of the Underlying Securities by the Trust after a payment
default on or an acceleration of the Underlying Securities, (ii) the
distribution in full of all amounts due to the Class _-1 and Class _-2 Trust
Certificateholders and (iii) the Final Scheduled Distribution Date. See
"Description of the Trust Agreement--Termination" in the Prospectus.
FEDERAL INCOME TAX CONSEQUENCES
General
The following is a general discussion of certain of the material
Federal income tax consequences of the purchase, ownership and disposition of
the Trust Certificates by an initial holder of Trust Certificates.
This summary is based upon laws, regulations, rulings and decisions
currently in effect, all of which are subject to change, possibly on a
retroactive basis. The discussion does not deal with all Federal tax
consequences applicable to all categories of investors, some of which may be
subject to special rules. In addition, this summary is generally limited to
investors who will hold the Trust Certificates as "capital assets" (generally,
property held for investment) within the meaning of Section 1221 of the Code,
and who do not hold their Trust Certificates as part of a "straddle," a "hedge"
or a "conversion transaction". Furthermore, no authority exists concerning the
tax treatment of some aspects of the Trust Certificates, and there can be no
assurance that the Treasury Department will not issue regulations under Section
1286 of the Code which would modify the treatment described below. Accordingly,
the way Trust Certificates are ultimately treated under the Code may differ
substantially from that described below. Investors should consult their own tax
advisors to determine the Federal, state, local and other tax consequences of
the purchase, ownership and disposition of the Trust Certificates.
Tax Status of Trust
In the opinion of Shearman & Sterling, special Federal income tax
counsel to the Depositor, the Trust will be classified as a grantor trust and
not as an association (or publicly traded partnership) taxable as a corporation
under the Code. Accordingly, each Trust Certificateholder will be subject to
Federal income taxation as if it owned directly the portion of the Underlying
Securities allocable to such Trust Certificates and as if it paid directly its
share of reasonable expenses paid by the Trust.
Income of Trust Certificateholders
In General. Under Section 1286 of the Code, the Trust Certificates
represent ownership of newly-issued debt instruments under the Code. The Class
__-2 Trust Certificates will be treated as an interest in a newly issued debt
instrument issued with OID.
The Trust intends to take the position that the Class __-1 Trust
Certificates represent interests in a newly issued self-amortizing debt
instrument having a principal amount generally equal to the purchase price of
the Class __-1 Trust Certificates and maturing on the Final Scheduled
Distribution Date. Under this approach, payments made on the Class __-1 Trust
Certificates on each Distribution Date will partially represent a return of
principal and partially represent interest, as calculated based upon the Trust
Certificate's yield to maturity. Trust Certificateholders that report income
under the cash method of accounting would include in income upon receipt
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that portion of the payment representing interest. The Internal Revenue Service
could take the position, however, that the Class __-1 Trust Certificates
represent a newly issued debt issued with OID.
In the case of a Trust Certificate that represents ownership of a debt
instrument issued with OID, the amount of the OID is equal to the excess of: (i)
the stated redemption price (generally all payments made with respect to the
Underlying Securities on that Trust Certificate); over (ii) the purchase price
of the Trust Certificate (less accrued interest). The holder of such a Trust
Certificate, whether using the cash or accrual method of accounting, generally
will be required to include OID in income in advance of the receipt of some or
all of the related cash payments. The amount of OID allocable to any accrual
period is an amount equal to the product of the instrument's adjusted issued
price at the beginning of the accrual period and its yield to maturity
(determined on the basis of compounding at the close of each accrual period).
The adjusted issue price at the beginning of any accrual period is equal to the
purchase price, increased by the accrual OID for each prior accrual period and
reduced by the amount of any cash payments.
Modification or Exchange of Underlying Securities. Depending upon the
circumstances, it is possible that a modification of the terms of the Underlying
Securities, including advancing their maturity date following a Tax Event, or a
substitution of other assets for the Underlying Securities following a default
on the Underlying Securities or following a Tax Event, would be a taxable event
to Trust Certificateholders on which they would recognize gain or loss.
Deductibility of Trust's Fees and Expenses
In computing its Federal income tax liability, a Trust
Certificateholder will be entitled to deduct, consistent with its method of
accounting, its share of reasonable administrative fees, trustee fees and other
fees paid or incurred by the Trust as provided in Section 162 or 212 of the Code
and any allowable amortization deductions with respect to certain other assets
of the Trust. If a Trust Certificateholder is an individual, estate or trust,
the deduction for his share of fees will be a miscellaneous itemized deduction
that may be disallowed in whole or in part.
Purchase and Sale of a Trust Certificate
A Trust Certificateholder's tax basis in a Trust Certificate generally
will equal the cost of such Trust Certificate (A) increased by any amounts of
OID and (B) reduced by any payments of principal, in the case of a Trust
Certificate representing ownership of a debt instrument issued without OID, or
reduced by any payments included in the stated redemption price, in the case of
a Trust Certificate representing ownership of a debt instrument issued with OID.
If a Trust Certificate or Underlying Security is sold, gain or loss
will be recognized equal to the difference between the proceeds of sale
allocable to the Trust Certificateholder and the Trust Certificateholder's
adjusted basis in its Trust Certificate. Any gain or loss will be a capital gain
or loss if the Trust Certificate was held as a capital asset.
Distributions on Class _-2 Trust Certificates
The distribution of the Underlying Securities to the Class _-2 Trust
Certificateholders on the Final Scheduled Distribution Date should not
constitute a taxable transaction to the recipients. Similarly, a redemption by
the Trust of Trust Certificates in exchange for the Underlying Securities upon
the tender by a Trust Certificateholder of Class _-2 Trust Certificates of a
certain principal amount and Class _-1 Trust Certificates representing a like
percentage of the outstanding principal amount thereof should not constitute a
taxable transaction to the Trust Certificateholder.
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Backup Withholding
Payments made on the Trust Certificates and proceeds from the sale of
the Trust Certificates will not be subject to a "backup" withholding tax of 31%
unless, in general, the Trust Certificateholder fails to comply with certain
reporting procedures and is not an exempt recipient under applicable provisions
of the Code.
Foreign Trust Certificateholders
To the extent that amounts paid to Trust Certificateholders that are
not United States Persons ("Foreign Trust Certificateholders are treated as
interest with respect to Underlying Securities originated after July 18, 1984,
such amounts generally will not be subject to the annual 30% withholding tax,
provided that such Foreign Trust Certificateholder fulfills certain
certification requirements. Under such requirements, the holder must certify,
under penalties of perjury, that it is not a United States Person and provide
its name and address. The foregoing discussion of the tax treatment of Foreign
Trust Certificateholders applies if the Trust is classified as a grantor trust.
If the Trust were not classified as a grantor trust, the Trust would be treated
as a partnership under the Code. Foreign Trust Certificateholders should consult
their tax advisors regarding the withholding tax risks associated with the
classification of the Trust as a partnership.
A "United States Person" means a citizen or resident of the U.S., a
corporation, partnership or other entity created or organized in or under the
laws of the U.S. or any political subdivision thereof, or an estate the income
of which is includable in gross income for U.S. Federal income tax purposes,
regardless of its source, or a trust if a court within the United States is able
to exercise primary supervision of the administration of the trust and one or
more U.S. Persons have the authority to control all substantive decisions of the
trust.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the Code impose certain requirements on (a) an employee benefit
plan (as defined in Section 3(3) of ERISA), (b) a plan described in Section
4975(e)(1) of the Code or (c) any entity whose underlying assets include Plan
Assets by reason of any such plan's investment in the entity (each, a "Plan").
In accordance with ERISA's general fiduciary standards, before
investing in a Trust Certificate, a Plan fiduciary should determine whether such
an investment is permitted under the governing Plan instruments and appropriate
for the Plan in view of its overall investment policy and the composition and
diversification of its portfolio. Other provisions of ERISA and the Code
prohibit certain transactions involving the assets of a Plan and persons who
have certain specified relationships to the Plan ("Parties in Interest" within
the meaning of ERISA or "Disqualified Persons" within the meaning of the Code).
Thus, a Plan fiduciary considering an investment in Trust Certificates should
also consider whether such an investment might constitute or give rise to a
non-exempt prohibited transaction under ERISA or the Code.
Under a "look-through rule" set forth in Section 2510.3-101 of the
United States Department of Labor regulations, a Plan's assets may include an
interest in the underlying assets of an entity (such as a trust) for certain
purposes under ERISA if the Plan acquires an equity interest in such entity.
Thus, unless an exception to the look-through rule applies, an investment in
Trust Certificates by a Plan might result in the assets of the Trust being
deemed to constitute Plan Assets, which in turn might mean that certain aspects
of such investment, including the operation of the Trust, might be subject to
the prohibited transaction provisions under ERISA and the Code.
If the assets of the Trust were deemed to be Plan Assets, transactions
involving the Depositor, Underwriter, Trustee, Underlying Securities Trustee and
the Underlying Securities Issuer might constitute prohibited transactions with
respect to a Plan holding a Trust Certificate unless (i) one or more prohibited
transaction exemptions ("PTEs") applies or (ii) in the case of the Underlying
Securities Issuer, it is not a
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Disqualified Person or party in interest with respect to such Plan. Plans
maintained or contributed to by the Depositor, Underwriter, Trustee, Underlying
Securities Trustee and the Underlying Securities Issuer, or any of their
affiliates, should not acquire or hold any Trust Certificate.
If the Trust is deemed to hold Plan Assets, the Underlying Securities
would appear to be an indirect loan between the Underlying Securities Issuer and
any Plan owning Trust Certificates; however, such loan, by itself, would not
constitute a prohibited transaction unless the Underlying Securities Issuer is a
party in interest or Disqualified Person with respect to such Plan.
The Underwriter is a broker-dealer registered under the Exchange Act,
and customarily purchases and sells securities for its own account in the
ordinary course of its business as a broker-dealer. Accordingly, the sale of
Trust Certificates by the Underwriter to Plans may be exempt under PTE 75-1 if
the following conditions are satisfied: (i) the Underwriter is not a fiduciary
with respect to the Plan and is a party in interest or Disqualified Person
solely by reason of Section 3(14)(B) of ERISA or Section 4975(e)(2)(B) of the
Code or a relationship to a person described in such Sections, (ii) the
transaction is at least as favorable to the Plan as an arm's-length transaction
with an unrelated party and is not a prohibited transaction within the meaning
of Section 503(b) of the Code, and (iii) the Plan maintains for at least six
years such records as are necessary to determine whether the conditions of PTE
75-1 have been met.
The custodial and other services rendered by the Trustee, and
Underlying Securities Trustee might be exempt pursuant to Section 408(b)(2) of
ERISA and Section 4975(d)(2) of the Code, which exempt services necessary for
the establishment or operation of a Plan under a reasonable contract or
arrangement and for which no more than reasonable compensation is paid. An
arrangement would not be treated as reasonable unless it can be terminated upon
reasonably short notice under the circumstances without penalty. The Trustee may
be terminated upon 60 days' prior notice and the approval of Trust
Certificateholders owning more than 662/3% of the aggregate beneficial interest
of Trust Certificates. The Depositor believes the compensation of the Trustee
and is reasonable under the circumstances. The statutory exemption for services
noted above does not provide exemptive relief from prohibited transactions
described in Section 406(b) of ERISA or Section 4975(c)(1)(E) or (F) of the
Code. In that regard, a fiduciary with respect to a Plan should consider whether
a sale of the Underlying Securities to Merrill Lynch & Co. or its affiliates
might constitute a non-exempt prohibited transaction, notwithstanding the sale
procedure to accept the highest bid submitted and the certification of the
highest bid and identity of bidders to the Trustee. [The Trustee shall, prior to
any sale of Underlying Securities to Merrill Lynch & Co. or any of its
affiliates, certify that any such purchaser submitted the highest of at least
three bids and shall identify the other bidders.]
Other prohibited transaction exemptions could apply to the acquisition
and holding of Trust Certificates by Plans, and the operation of the Trust,
including, but not limited to: PTE 84-14 (an exemption for certain transaction
determined by an independent qualified professional asset manager), PTE 91-38
(an exemption for certain transactions involving bank collective investment
funds), PTE 90-1 (an exemption for certain transactions involving insurance
company pooled separate accounts) or PTE 95-60 (an exemption for certain
transactions involving insurance company general accounts).
By acquiring and holding a Trust Certificate, a Plan shall be deemed to
have represented and warranted to the Depositor, Trustee, and Underwriter that
such acquisition and holding of a Trust Certificate does not involve a
non-exempt prohibited transaction with respect to such Plan, including with
respect to the activities of the Trust.
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UNDERWRITING
Subject to the terms and conditions set forth in the Purchase
Agreement, dated as of _______ __, 1997 (the "Underwriting Agreement"), the
Depositor has agreed to sell to Merrill Lynch & Co., and Merrill Lynch & Co. has
agreed to purchase, the Trust Certificates.
The Depositor has been advised by the Underwriter that the Underwriter
proposes to offer the Trust Certificates from time to time in negotiated
transactions or otherwise at varying prices to be determined at the time of
sale. The Underwriter may effect such transactions by selling Trust Certificates
to or through dealers and such dealers may receive compensation in the form of
underwriting discounts, concessions or commissions from the Underwriter and any
purchasers of Trust Certificates for whom they may act as agents. The
Underwriter and any dealers that participate with the Underwriter in the
distribution of Trust Certificates may be deemed to be underwriters, and any
profit on the resale of Trust Certificates by them may be deemed to be
underwriting discounts, or commissions under the Securities Act. Discounts and
concessions to dealers will vary but will not exceed [ ]% of the face amount of
the Trust Certificates.
[The Underwriter has from time to time provided investment banking and
other financial services to the Underlying Securities Issuer and expects in the
future to provide such services, for which it has received and will receive
customary fees and commissions.]
The Underwriting Agreement provides that the Depositor will indemnify
the Underwriter against certain civil liabilities, including liabilities under
the Securities Act, or will contribute to payments the Underwriter may be
required to make in respect thereof.
VALIDITY OF THE TRUST CERTIFICATES
The validity of the Trust Certificates will be passed upon for the
Depositor and the Underwriter by Shearman & Sterling, New York, New York.
RATINGS
It is a condition to the issuance of the Trust Certificates that the
Trust Certificates have ratings assigned by Moody's and by S&P, equivalent to
the ratings of the Underlying Securities, which, as of the date of this
Prospectus Supplement, were "[ ]" by Moody's and "[ ]" by S&P.
The rating of the Trust Certificates by Moody's addresses the
likelihood of the ultimate payment of principal of and interest on the Trust
Certificates or any Underlying Securities distributed in respect thereof. The
rating of the Trust Certificates by S&P addresses the likelihood of timely
receipt of interest on the Class _-1 Trust Certificates or any Underlying
Securities distributed in respect of the Class _-2 Trust Certificates and
ultimate receipt of principal on any Underlying Securities distributed in
respect of the Class _-2 Trust Certificates. The ratings address the likelihood
of the receipt by Trust Certificateholders of payments required under the Trust
Agreement, and are based primarily on the credit quality of the Underlying
Securities. The rating on the Trust Certificates does not, however, constitute a
statement regarding the occurrence or frequency of redemptions or prepayments
on, or extensions of the maturity of, the Underlying Securities, and the
corresponding effect on yield to investors.
A security rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time by the
assigning Rating Agency. Each security rating should be evaluated independently
of similar ratings on different securities.
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The Depositor has not requested a rating on the Trust Certificates by
any rating agency other than Moody's and S&P. However, there can be no assurance
as to whether any other rating agency will rate the Trust Certificates, or, if
it does, what rating would be assigned by any such other rating agency. A rating
on the Trust Certificates by another rating agency, if assigned at all, may be
lower than the ratings assigned to the Trust Certificates by Moody's and S&P.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED [ ] __, 1997
PROSPECTUS
STEERS(R) TRUST CERTIFICATES
(ISSUABLE IN SERIES)
Merrill Lynch Depositor, Inc.
DEPOSITOR
The STEERS(R) Trust Certificates (the "Trust Certificates") offered
hereby and by supplements (each, a "Prospectus Supplement") to this Prospectus
will be offered from time to time in one or more series (each, a "Series") and
in one or more classes within each such Series (each, a "Class"), denominated in
U.S. dollars or in one or more other currencies or composite currencies. Trust
Certificates of each respective Series will be offered in amounts, at prices and
on terms to be determined at the time of sale as described in the Prospectus
Supplement accompanying this Prospectus. Each Series of Trust Certificates will
represent in the aggregate the entire beneficial ownership interest in a
publicly traded debt, or other eligible, security or a pool of such securities
(the "Underlying Securities"), together with certain other assets, if
applicable, described herein or in the applicable Prospectus Supplement (such
assets, together with the Underlying Securities, the "Deposited Assets, to be
deposited in a trust (the "Trust") for the benefit of holders of Trust
Certificates of such Series ("Trust Certificateholders") by Merrill Lynch
Depositor, Inc., a Delaware corporation that is an indirect, wholly owned,
limited-purpose subsidiary of Merrill Lynch & Co., Inc. (the "Depositor),
pursuant to the Standard Terms for Trust Agreements (the "Standard Terms") and a
supplement thereto (the "Series Supplement") with respect to a Series
(collectively, the "Trust Agreement") between the Depositor and the trustee (the
"Trustee") named in the applicable Prospectus Supplement. If so specified in the
applicable Prospectus Supplement, the Trust for a Series of Trust Certificates
may also include, or the Trust Certificateholders of such Trust Certificates may
have the benefit of, any combination of insurance policies, letters of credit,
Reserve Accounts (as defined below) and other types of rights or assets designed
to support or ensure the servicing and distribution of amounts due in respect of
the Deposited Assets (collectively, "Credit Support"). The Underlying Securities
will represent debt securities issued by the Government of the United States of
America ("Government Securities") or senior or subordinated publicly-traded debt
obligations of one or more corporations, general or limited partnerships,
preferred securities of trusts organized by such issuers to issue certain
trust-originated preferred securities, in each case organized under the laws of
the United States of America or any state thereof (each, an "Underlying
Securities Issuer"). As a condition to the deposit into a Trust of Underlying
Securities (other than Government Securities) constituting 10% or more of the
total Underlying Securities with respect to the related Series of Trust
Certificates ("Concentrated Underlying Securities"), as of the date of the
issuance of such Series, the issuer of such Underlying Securities will be
subject to the periodic reporting requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith will file
reports and other information with the Securities and Exchange Commission (the
"Commission"). See "Description of Deposited Assets--Underlying Securities
Issuer". Except for Government Securities, the Underlying Securities will be
purchased in the secondary market; they will not be acquired from the issuer
thereof. No such issuer will participate in the offering of the Trust
Certificates, nor will such issuer receive any of the proceeds from the sale of
the Underlying Securities to the Depositor or from the issuance of the Trust
Certificates. See "Description Deposited Assets--General". Except as otherwise
provided herein and in the applicable Prospectus Supplement, the Depositor's
only obligations with respect to each Series of Trust Certificates will be to
assign and deliver the Deposited Assets and certain related documents to the
applicable Trustee and, in certain cases, to arrange for Credit Support, if any.
An administrative agent (the "Administrative Agent"), if any is named in the
applicable Prospectus Supplement with respect to a Series of Trust Certificates,
may assume certain contractual administrative obligations of the Trustee, to the
extent provided in the applicable Prospectus Supplement, including certain cash
advances in the event of payment delinquencies on the Deposited Assets. See
"Description of the Trust Agreement--Advances in Respect of Delinquencies". The
Trust Certificates of each Series will not represent an obligation of or
interest in the Depositor or Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated ("Merrill Lynch & Co.") or any of their affiliates. Neither
the Trust Certificates nor the Deposited Assets will be guaranteed or insured by
the Depositor or Merrill Lynch & Co. or their affiliates.
Application will be made to list certain Series of Trust Certificates
on the New York Stock Exchange ("NYSE"). At the time of issue, each Series of
Trust Certificates offered hereby will be rated in one of the investment grade
categories recognized by one or more nationally recognized rating agencies.
There can be no assurance that an active public market for any Series of Trust
Certificates will develop or, if a public market develops, as to the liquidity
of the trading market for such Trust Certificates. Unless otherwise specified in
the applicable Prospectus Supplement, each Series of Trust Certificates
initially will be represented by one or more global securities (each, a "Global
Security") registered in the name of Cede & Co. ("Cede"), as nominee of The
Depository Trust Company (the "Depositary" or "DTC"). The interests of
beneficial owners of such Trust Certificates will be represented by book entries
on the records of participating members of DTC. Definitive certificates in
registered form without coupons will be available only under the limited
circumstances described herein under the heading "Description of the Trust
Certificates--Global Securities".
PROSPECTIVE INVESTORS SHOULD CONSIDER THE FACTORS SET FORTH HEREIN
UNDER "RISK FACTORS", BEGINNING ON PAGE 7.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------
The Trust Certificates may be offered and sold to or through
underwriters, dealers or agents or directly to purchasers, as more fully
described under "Plan of Distribution" and in the applicable Prospectus
Supplement. This Prospectus may not be used to consummate sales of Trust
Certificates offered hereby unless accompanied by a Prospectus Supplement.
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MERRILL LYNCH & CO.
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The date of this Prospectus is [ ] __, 1997.
<PAGE>
PROSPECTUS SUPPLEMENT
The Prospectus Supplement relating to a Series of Trust Certificates to
be offered hereby will set forth with respect to such Series: (a) the specific
designation and aggregate principal amount thereof; (b) the currency or
currencies in which the principal, premium, if any, and any interest are
distributable (the "Specified Currency"), (c) a description of the material
terms of the Deposited Assets, including the Underlying Securities, and Credit
Support, if any; (d) the number of Classes and, with respect to each such Class,
its designation, aggregate principal amount or, if applicable, Notional Amount
(as defined below), and the minimum denomination of the Trust Certificates; (e)
the relative rights and priorities of each Series or Class (including the type,
characteristics and specifications of the Deposited Assets and Credit Support,
if any, for such Series or Class); (f) the identity of each issuer of the
Underlying Securities and each obligor with respect to any of the other
Deposited Assets; (g) the name of the Trustee and the Administrative Agent, if
any; (h) the Trust Certificate Rate (as defined below) or the applicable method
of calculation thereof; (i) the date of distribution (each, a "Distribution
Date") of any interest, premium (if any) and/or principal; (j) the date of
issue; (k) the final scheduled Distribution Date (the "Final Scheduled
Distribution Date"), if applicable; (l) the offering price or prices; (m)
remedies upon the occurrence of a payment default on the Underlying Securities;
(n) applicable Required Percentages and Voting Rights (as defined below) with
regard to certain actions by the Depositor or the Trustee under the Trust
Agreement or with regard to the applicable Trust; and (o) any other material
terms of the Trust Certificates (including terms relating to the rights of the
Trust or any third party to redeem or purchase such Trust Certificates prior to
the Final Scheduled Distribution Date). See "Description of the Trust
Certificates--General" for a listing of other terms that may be specified in the
applicable Prospectus Supplement.
AVAILABLE INFORMATION
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (together with all
amendments and exhibits, the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), relating to the Trust Certificates.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to the Registration Statement. The Depositor will be subject to
the periodic reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith will file reports and
other information with the Commission. Such reports and other information
concerning the Depositor may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the Commission:
New York Regional Office, Room 1100, 7 World Trade Center, New York, New York
10048 and Chicago Regional Office, Suite 1400, Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and copies of
such material can be obtained from the Public Reference Section of the
Commission, Washington, D.C. 20549, at prescribed rates. Such material may also
be accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed by the Depositor pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Trust Certificates shall be
deemed to be incorporated by reference in this Prospectus. Such documents may
include, without limitation, Annual Reports on Form 10-K and Current Reports on
Form 8-K. Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Depositor will provide without charge to each person to whom a copy of this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated herein by reference, except the
exhibits to such documents (unless such exhibits are specifically incorporated
by reference in such documents). Written requests for such copies should be
directed to Merrill Lynch Depositor, Inc.,
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c/o World Financial Center, New York, New York 10281, Attention: Secretary.
Telephone requests for such copies should be directed to Merrill Lynch
Depositor, Inc. at 212-449-1000.
REPORTS TO TRUST CERTIFICATEHOLDERS
Except as otherwise specified in the applicable Prospectus Supplement,
unless and until definitive Trust Certificates (as defined below) are issued,
unaudited reports containing information concerning the related Trust will be
prepared annually by the related Trustee and sent on behalf of the related Trust
only to Cede, as nominee of DTC and registered holder of the Trust Certificates.
If Definitive Trust Certificates are issued, such reports will be prepared by
the related Trustee and sent on behalf of the related Trust directly to the
Trust Certificateholders in accordance with the Trust Agreement. See
"Description of the Trust Certificates--Global Securities" and "Description of
the Trust Agreement--Reports to Trust Certificateholders; Notices". Such reports
will not constitute financial statements prepared in accordance with generally
accepted accounting principles. The Depositor, on behalf of each Trust, will
cause to be filed with the Commission such periodic reports as are required
under the Exchange Act. The Depositor does not intend to send any financial
reports to Trust Certificateholders.
References herein to "U.S. dollars", "US$", "dollar" or "$" are to the
lawful currency of the United States.
For definitions of certain terms used herein, refer to "Index of
Defined Terms", beginning on page I-1.
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<PAGE>
PROSPECTUS SUMMARY
The following summary does not purport to be complete and is qualified
in its entirety by reference to the detailed information appearing elsewhere in
this Prospectus. Certain capitalized terms used herein are defined elsewhere in
this Prospectus. See "Index to Defined Terms".
SECURITIES OFFERED.......................... STEERS(R)Trust Certificates, to be
offered from time to time in one
or more Series and in one or more
Classes within each such Series,
will be denominated in U.S.
dollars or in one or more other
currencies or composite
currencies. Trust Certificates of
each respective Series will be
offered in amounts, at prices and
on terms to be determined at the
time of sale as described in the
applicable Prospectus Supplement.
For a description of the kinds of
terms which will be set forth in
the applicable Prospectus
Supplement, see "Description of
the Trust Certificates--General".
DEPOSITED
ASSETS.................................. Each Series of Trust Certificates
will represent in the aggregate
the entire beneficial ownership
interest in the Underlying
Securities, together with certain
other assets, if applicable. Such
other 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 of the Trust Certificates.
Such assets will be described in
the applicable Prospectus
Supplement See "Description of
Deposited Assets".
UNDERLYING SECURITIES....................... The Underlying Securities will
represent debt securities issued
by the Government of the United
States of America or senior or
subordinated publicly-traded debt
obligations of one or more
corporations, general or limited
partnerships, or preferred
securities of trusts organized by
such issuers to issue certain
trust-originated preferred
securities, in each case organized
under the laws of the United
States of America or any state
thereof. As a condition to the
deposit into a Trust of Underlying
Securities (other than Government
Securities) constituting 10% or
more of the total Underlying
Securities with respect to the
related Series of Certificates
("Concentrated Underlying
Securities"), as of the date of
the issuance of such Series, the
issuer of such Underlying
Securities will be subject to the
periodic reporting requirements of
the Exchange Act, and in
accordance therewith will file
reports and other information with
the Commission. See "Description
of Deposited Assets--Underlying
Securities Issuer". Except for
Government Securities, the
Underlying Securities will be
purchased in the secondary market;
they will not be acquired from the
issuer thereof. No such issuer
will participate in the offering
of the Certificates, nor will such
issuer receive any of the proceeds
from
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<PAGE>
the sale of the Underlying
Securities to the Depositor or
from the issuance of the
Certificates. See "Description
Deposited Assets--General".
CREDIT SUPPORT.............................. If so specified in the applicable
Prospectus Supplement, the Trust
for a Series of Trust Certificates
may also include, or the
Certificateholders of such Series
may have the benefit of, any
combination of insurance policies,
letters of credit, Reserve
Accounts, and other types of
rights or assets designated to
support or ensure the servicing
and distribution of amounts due in
respect of the Deposited Assets.
See "Description of the Deposited
Assets--Credit Support".
THE DEPOSITOR............................... The Depositor, a Delaware
corporation, is an indirect,
wholly owned, limited-purpose
subsidiary of Merrill Lynch & Co.,
Inc. The principal office of the
Depositor is c/o Merrill Lynch &
Co., Inc., World Financial Center,
New York, New York 10281. The
Certificate of Incorporation of
the Depositor provides that the
Depositor may conduct any lawful
activities necessary or incidental
to serving as depositor of one or
more trusts that may issue and
sell Certificates.
THE TRUST................................... The Depositor will assign and
deliver the Deposited Assets for
each Series of Trust Certificates
to the Trustee named in the
applicable Prospectus Supplement,
in its capacity as Trustee, for
the benefit of the Trust
Certificateholders of such Series.
See "Description of the Trust
Agreement--Assignment of Deposited
Assets". The Trustee named in the
applicable Prospectus Supplement
will administer the Deposited
Assets pursuant to the Trust
Agreement and will receive the
Trustee Fee.
FEDERAL INCOME TAX
CONSEQUENCES.............................. The arrangement pursuant to which
the Trust Certificates will be
created and sold and the
Underlying Securities will be
administered will be treated as a
grantor trust under subpart E,
part I of subchapter J of the
Code. Each Trust Certificateholder
will be treated as the owner of a
pro rata undivided interest in the
ordinary income and corpus of the
Underlying Securities in the
grantor trust. See "Federal Income
Tax Consequences".
ERISA CONSIDERATIONS........................ An employee benefit plan subject
to the Employee Retirement Income
Security Act of 1974, as amended
("ERISA"), an individual
retirement account, or an entity
whose underlying assets include
plan assets by reason of a plan's
investment in the entity (each, a
"Plan") may purchase Trust
Certificates provided that either
(a) the offering has been
structured so that participation
by "benefit plan investors" is not
"significant" or so that there are
at least 100 independent
purchasers of the class of Trust
Certificates being offered, or (b)
the Plan can represent that its
purchase of Trust Certificates
would not be prohibited under
ERISA or the Internal Revenue Code
of 1986, as amended (the "Code").
See "ERISA Considerations".
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<PAGE>
RATINGS ................................... At the time of issuance, the
Certificates of a Series (or Class
of such Series) will be rated in
one of the investment grade
categories by one or more
nationally recognized Rating
Agencies. Any rating issued with
respect to a Certificate is not a
recommendation to purchase, sell
or hold a Certificate and there
can be no assurance that the
ratings will remain for any given
period of time or that any rating
will not be revised or withdrawn
by the related Rating Agency. See
"Risk Factors--Ratings of the
Certificates Subject to Change".
LISTING ................................... Application may be made to list
certain Series of Trust
Certificates on the New York Stock
Exchange.
FORM OF SECURITY............................ Unless otherwise specified in the
applicable Prospectus Supplement,
each Series of Trust Certificates
will be initially represented by
one or more Global Securities
registered in the name of Cede as
nominee of the DTC. The interests
of beneficial owners of Trust
Certificates will be represented
by book entries of participating
members of DTC. Definitive
certificates in registered form
without coupons will be available
only under the limited
circumstances described under the
heading "Description of the Trust
Certificates--Global Securities".
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<PAGE>
RISK FACTORS
In connection with an investment in the Trust Certificates of any
Series, prospective purchasers should consider, among other things, (1) the risk
factors set forth below and (2) any additional risk factors set forth in the
applicable Prospectus Supplement.
Limited Liquidity
There can be no assurance that an active public market for any Series
(or Class within such Series) of Trust Certificates will develop or, if a public
market develops, as to the liquidity of the trading market for such Trust
Certificates. Merrill Lynch & Co. has advised the Depositor that it intends to
make a market in the Trust Certificates, as permitted by applicable laws and
regulations, after the issuance thereof. Merrill Lynch & Co. is not obligated,
however, to make a market in the Trust Certificates of any Series or Class
within such Series and any such market-making activity may be discontinued at
any time without notice at the sole discretion of Merrill Lynch & Co. If an
active public market for the Trust Certificates does not develop or continue,
the market prices and liquidity of the Trust Certificates may be adversely
affected.
Limited Recourse
The Trust Certificates will not represent a recourse obligation of or
interest in the Depositor, any Administrative Agent, Merrill Lynch & Co., the
Underlying Securities Issuer or any of their affiliates. Trust Certificates will
not be insured or guaranteed by the Depositor, Merrill Lynch & Co. or any of
their affiliates. The obligations, if any, of the Depositor with respect to the
Trust Certificates of any Series will only be pursuant to certain limited
representations and warranties with respect to an Underlying Security or other
Deposited Assets, and recourse with respect to the satisfaction of any such
obligations will be limited to any recourse for a breach of a corresponding
representation or warranty that the Depositor may have against the seller of
such Underlying Security or other Deposited Assets to the Depositor. The
Depositor does not have, and is not expected in the future to have, any assets
with which to satisfy any claims arising from a breach of any representation or
warranty.
Limited Assets
The only material assets expected to be in a Trust are Underlying
Securities and any other Deposited Assets corresponding to the related Series
(or Class within such Series) of Trust Certificates being offered. The Trust
Certificates do not represent obligations of the Depositor, any Administrative
Agent, Merrill Lynch & Co. or any of their affiliates and, unless otherwise
specified in the applicable Prospectus Supplement, are not insured or guaranteed
by the Depositor, any Administrative Agent or Merrill Lynch & Co. Accordingly,
Trust Certificateholders' receipt of distributions in respect of the Trust
Certificates will depend entirely on the performance of and the Trust's receipt
of payments with respect to the Deposited Assets.
Reinvestment Risk; Reduction in Yield to Maturity: Redemption, Repayment or
Call Right
Several factors affect the timing of distributions on any Series (or
Class within such Series) of Trust Certificates. In particular, provisions in an
Underlying Securities indenture for optional or mandatory redemption or
repayment prior to stated maturity, if exercised, will reduce the weighted
average life of such Underlying Securities and the related Series (or Class
within such Series) of Trust Certificates. A variety of tax, accounting,
economic, and other factors will influence whether an Underlying Securities
Issuer exercises any right of redemption in respect of its securities. All else
remaining equal, if prevailing interest rates are below the interest rates on
the related Underlying Securities, the likelihood of redemption would be
expected to increase. There can be no assurance that any Underlying Security
redeemable at the option of the Underlying Security Issuer will remain
outstanding until its stated maturity. In addition, the effective yield to
holders of the Trust Certificates of any Series (and Class within such Series)
may be affected by certain terms of the Deposited Assets or the manner and
priorities of allocations of collections with respect to such Deposited Assets
between Classes of a given Series. The applicable Prospectus Supplement will
discuss any calls, puts or other redemption options, and certain other terms
applicable to such Underlying Securities and any other Deposited Assets.
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<PAGE>
If an Underlying Securities Issuer becomes subject to a bankruptcy or
similar insolvency proceeding, the timing and amount of payments with respect to
the principal of, premium on, if any, and any interest to be distributed in
respect of such Trust Certificates may be materially and adversely affected.
Several factors influence the performance of issuers that are corporations or
other business entities; these factors may affect an Underlying Securities
Issuer's ability to satisfy its obligations with respect to the Underlying
Securities, including the Underlying Securities Issuer's operating and financial
condition, its capital structure and other economic, geographic, legal and
social factors.
Certain Series of Trust Certificates may be subject to a Call Right (as
defined below) by Merrill Lynch & Co., the Depositor or others, as specified in
the applicable Supplement. See "Description of the Trust Certificates--Call
Right". There is no assurance that an investment in the Trust Certificates of a
Callable Series (as defined below) may be held to maturity. In particular, if a
Call Right is exercised by the holder thereof, the investment represented by the
Trust Certificates will have a shorter maturity than if such right were not
exercised. The likelihood that Call Right will be exercised increases as
interest rates generally prevailing in the market for debt securities fall
relative to those in effect on the Original Issue Date (as defined below). Any
such reduction in interest rates would increase the value of the Underlying
Securities, making the exercise of a Call Right more likely. Given a reduction
in interest rates, the interest rates at which proceeds received by Trust
Certificateholders from the exercise of a Call Right may be reinvested may be
lower than the return that would have been earned over the remaining life of the
Trust Certificates if those Trust Certificates had not been called.
The extent to which the yield to maturity of such Trust Certificates
may vary from the anticipated yield due to the rate and timing of payments on
the Deposited Assets will also depend upon the degree to which they are
purchased at a discount or premium and the degree to which the timing of
payments thereon is sensitive to the rate and timing of payments on the
Deposited Assets.
To the extent that the Trust Certificate Rate for a Series is based on
variable or adjustable interest rates, variations in the interest rates
applicable to, and the corresponding payments in respect of, such Trust
Certificates, will affect the yield to maturity of such Series. There may be
disproportionate principal payments (whether resulting from differences in
amortization schedules, payments due on scheduled maturity or upon early
redemption) on Trust Certificates backed by a pool of Underlying Securities
having interest rates higher or lower than the then applicable Trust Certificate
Rate, which may adversely affect the yield on such Series of Trust Certificates.
The applicable Prospectus Supplement for a Series of Trust Certificates
will set forth additional information regarding yield and maturity
considerations applicable to such Series and the related Deposited Assets,
including the related Underlying Securities.
Currency Risk: Exchange Rates and Exchange Controls
An investment in a Trust Certificate having a Specified Currency other
than U.S. dollars entails significant risks that are not associated with a
similar investment in a U.S. dollar-denominated security. Such risks include,
without limitation, the possibility of significant changes in rates of exchange
between the U.S. dollar and such Specified Currency and the possibility of the
imposition or modification of foreign exchange controls with respect to such
Specified Currency. Such risks generally depend on factors over which the
Depositor has no control, such as economic and political events and the supply
of and demand for the relevant currencies. In recent years, rates of exchange
between the U.S. dollar and certain currencies have been highly volatile, and
such volatility may be expected in the future. Past fluctuations in any
particular exchange rate do not necessarily indicate, however, fluctuations in
the rate that may occur during the term of any Trust Certificate. Depreciation
of the Specified Currency for a Trust Certificate against the U.S. dollar would
decrease the effective yield of such Trust Certificate below its Trust
Certificate Rate and, in certain circumstances, could result in a loss to the
investor on a U.S. dollar basis.
Governments have from time to time imposed, and may in the future
impose, exchange controls that could affect exchange rates and the availability
of a Specified Currency for making distributions in respect of Trust
Certificates denominated in such currency. There can be no assurance that
exchange controls will not restrict or prohibit distributions of principal,
premium or interest in any Specified Currency. Even if there are no actual
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<PAGE>
exchange controls, it is possible that, on a Distribution Date with respect to
any particular Trust Certificate, the currency in which amounts then due to be
distributed in respect of such Trust Certificate would not be available.
PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL
ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN TRUST CERTIFICATES
DENOMINATED IN A CURRENCY OTHER THAN U.S. DOLLARS. SUCH TRUST CERTIFICATES ARE
NOT AN APPROPRIATE INVESTMENT FOR PERSONS WHO ARE UNSOPHISTICATED WITH RESPECT
TO FOREIGN CURRENCY TRANSACTIONS.
Derivatives
A Trust may include various derivative instruments, including interest
rate, currency, securities, commodity and credit swaps, caps, floors, collars
and options and structured securities having embedded derivatives (such as
structured notes). Swaps involve the exchange with another party of their
respective commitments to pay or receive amounts computed by reference to
specified fixed or floating interest rates, currency rates, securities prices,
yields or returns (including baskets of securities or securities indices) or
commodity prices and a notional principal amount (i.e., the reference amount
with respect to which such obligations are determined, although no actual
exchange of principal occurs except for currency swaps); for example, an
exchange of floating rate payments for fixed rate payments. Interim payments are
generally netted, with the difference being paid by one party to the other. The
purchase of a cap entitles the purchaser, to the extent that a specified rate,
price, yield or return exceeds a predetermined level, to receive payments
computed by reference to a specified fixed or floating rate, price, yield or
return and a notional principal amount from the party selling such cap. The
purchase of a floor entitles the purchaser, to the extent that a specified rate,
price, yield or return declines below a predetermined level, to receive payments
computed by reference to a specified fixed or floating rate, price, yield or
return and a notional principal amount from the party selling such floor.
Options function in a manner similar to caps and floors, and exist on various
underlying securities, such as bonds, equities, currencies and commodities.
Options can also be structured as securities such as warrants or can be embedded
in securities such as certain commodity or equity-linked bonds with option-like
characteristics. Forward contracts involve the purchase and sale of a specified
security, commodity, currency or other financial instrument at a specified price
and date in the future, and may be settled by physical delivery or cash payment.
Credit derivatives involve swap and option contracts designed to assume or lay
off credit risk on loans, debt securities or other assets, or in relation to a
particular reference entity or country, in return for either swap payments or
payment of premium. Credit derivatives may also be embedded in other instruments
such as notes or warrants. Credit derivatives give one party to a transaction
the right to dispose of or acquire an asset (or group of assets), or the right
to receive or make a payment from the other party, upon the occurrence of
specified credit events.
Fluctuations in securities, currency and commodity rates, prices,
yields and returns may have a significant effect on the yield to maturity of
derivatives or the levels of support that derivatives can provide to a Trust. In
addition, derivatives may be limited to covering only certain risks. Continued
payments on derivatives may be affected by the financial condition of the
counterparties thereto (or, in come instances, the guarantor thereunder). There
can be no assurance that counterparties will be able to perform their
obligations. Failure by a counterparty (or the related guarantor, if any) to
make required payments may result in the delay or failure to make payments on
the related securities and risks. In addition, the notional amounts on which
payments are made may vary under certain circumstances and may not bear any
correlation to principal amounts of the related securities. The terms and risks
of the relevant derivatives will be described in the related Prospectus
Supplement. Further, the relevant Prospectus Supplement will identify the
material terms, the material risks and the counterparty for any derivative
instrument in a Trust which is the result of an agreement with such counterparty
to the extent that such agreement is material.
Information Concerning Underlying Securities Issuers; Risk of Loss if Public
Information Not Available
A prospective purchaser of Trust Certificates should obtain and
evaluate the same information concerning each Underlying Securities Issuer as it
would obtain and evaluate if it were investing directly in the Underlying
Securities or in other securities issued by the Underlying Securities Issuer.
The publicly-available information
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concerning an Underlying Securities Issuer is important in considering whether
to invest in or sell Trust Certificates. To the extent such information ceases
to be available, an investor's ability to make an informed decision to purchase
or sell Trust Certificates could be impeded. None of the Depositor, the Trustee,
Merrill Lynch & Co. or any of their affiliates assumes any responsibility for
the continued availability, accuracy or completeness of any information
concerning any Underlying Securities Issuer (including, without limitation,
investigation as to its financial condition or creditworthiness) or concerning
the Underlying Securities (whether or not such information is filed with the
Commission) or otherwise considered by a purchaser of the Trust Certificates in
making its investment decision in connection therewith; provided that the
foregoing shall not apply to any information concerning the Underlying
Securities and any Underlying Securities Issuer that is expressly set forth in
this Prospectus or an applicable Prospectus Supplement. The issuance of Trust
Certificates of any Series should not be construed as an endorsement by the
Depositor, Merrill Lynch & Co. or the Trustee of the financial condition or
business prospects of any Underlying Securities Issuer.
If an issuer of Concentrated Underlying Securities ceases to file
periodic reports under the Exchange Act, then the Trustee of the relevant Trust
will exercise one of the following remedies: (i) sell all of such Concentrated
Underlying Securities and distribute the proceeds from such sale to the Trust
Certificateholders in accordance with the Allocation Ratio (as defined below)
(any such sale will result in a loss to the Trust Certificateholders of the
relevant Series if the sale price is less than the purchase price for such
Concentrated Underlying Securities), (ii) distribute such Concentrated
Underlying Securities in kind to the Trust Certificateholders in accordance with
the Allocation Ratio, (iii) elect either (i) or (ii) based upon a majority of
votes cast by the affected Trust Certificateholders, or (iv) in the case of an
Underlying Securities Issuer who is eligible to use Form S-3 for a primary
common stock offering, take no action. The choice of remedies will be set forth
for a given Series in the Prospectus Supplement, and the Trustee, Depositor and
Trust Certificateholders will have no discretion in this respect.
Ratings of the Trust Certificates Subject to Change
At the time of issuance, the Trust Certificates of a Series (or each
Class of such Series) will be rated in one of the investment grade categories by
one or more nationally recognized rating agencies (each, a "Rating Agency"). The
Rating Agencies may rate a Series or Class of Trust Certificates on the basis of
several factors, including the related Deposited Assets, any Credit Support and
the relative priorities of the Trust Certificateholders of such Series or Class
to receive collections from, and to assert claims against, the Trust with
respect to such Deposited Assets and any Credit Support. The Rating Agencies are
solely responsible for selecting the criteria for rating the Trust Certificates.
Any rating issued with respect to the Trust Certificates is not a
recommendation to purchase, sell or hold a security; such ratings do not comment
on the market price of the Trust Certificates or their suitability for a
particular investor. There can be no assurance that the ratings will remain for
any given period of time or that any rating will not be revised or withdrawn
entirely by the related Rating Agency if, in its judgment, circumstances
(including, without limitation, the rating of the Underlying Securities) so
warrant. A revision or withdrawal of such rating may have an adverse effect on
the market price of the Trust Certificates.
Global Securities Limit Direct Voting; Pledge of Trust Certificates
Unless otherwise specified in the applicable Prospectus Supplement, the
Trust Certificates of each Series will initially be represented by one or more
Global Securities deposited with, or on behalf of, a Depositary (as defined
below) and will not be issued as individual definitive Trust Certificates to the
purchasers of such Trust Certificates. Consequently, unless and until such
individual definitive Trust Certificates of a particular Series are issued, such
purchasers will not be recognized as Trust Certificateholders under the Trust
Agreement. Until such time, such purchasers will only be able to exercise the
rights of Trust Certificateholders indirectly through the Depositary and its
respective Participants (as defined below) and, as a result, the ability of any
such purchaser to pledge that Trust Certificate to persons or entities that do
not participate in the Depositary's system, or otherwise to act with respect to
such Trust Certificate, may be limited. See "Description of the Trust
Certificates--Global Securities" and any further description contained in the
applicable Prospectus Supplement.
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Limitation on Remedies Due to Passive Nature of the Trust
The remedies available to a Trustee of a relevant Trust are
predetermined and therefore an investor in the Trust Certificates has less
discretion over the exercise of remedies than if such investor directly invested
in the Underlying Securities. Each Trust will generally hold the related
Deposited Assets to maturity and not dispose of them, regardless of adverse
events, financial or otherwise, which may affect any Underlying Securities
Issuer or the value of the Deposited Assets. Except as indicated below, a holder
will not be able to dispose of or take other actions with respect to any
Deposited Assets. Under certain circumstances described in the applicable
Prospectus Supplement, the Trustee will (or will at the direction of a specified
percentage of Trust Certificateholders of the relevant Series) dispose of, or
take certain other actions in respect of, the Deposited Assets. In certain
limited circumstances, such as a mandatory redemption of Underlying Securities
or the exercise by a third party of the right to purchase Underlying Securities
(as described below under "Description of Deposited Assets--Principal Terms of
Underlying Securities"), the Trustee may dispose of the Deposited Assets prior
to maturity. The applicable Prospectus Supplement will describe the particular
circumstances, if any, under which a Deposited Asset may be disposed of prior to
maturity.
Amendment of Trust Agreement Without Unanimous Consent
The Trust Agreement may be amended or otherwise modified with the
consent of a percentage of Trust Certificateholders specified in the Prospectus
Supplement (which percentage will not be less than a majority). Any such
amendment or other modification could have a material adverse effect on those
Trust Certificateholders of the relevant Series that do not consent to such
amendment or other modification. However, the Trust Agreement will provide that
any amendment or other modification that would reduce the amount of, or defer
the date of, distributions to Trust Certificateholders of a Series (or Class
within such Series) may become effective only with the consent of each affected
Trust Certificateholder of that Series (or Class within such Series) and that,
if so specified in the applicable Prospectus Supplement, any such amendment or
other modification that would result in the reduction or withdrawal of the then
current rating assigned to the Trust Certificates of a Series (or Class within
such Series) by a Rating Agency would require the consent of a specified higher
percentage of Trust Certificateholders of that Series (or Class within such
Series).
General Unavailability Of Optional Exchange
Although the Prospectus Supplement for a Series of Trust Certificates
may designate such Series as an Exchangeable Series (as defined below) and may
provide that a Trust Certificateholder may exchange Trust Certificates of the
Exchangeable Series for a pro rata portion of Deposited Assets of the related
Trust, any such Optional Exchange Right will be exercisable only to the extent
that the exercise of such right does not affect the Trust's ability to be exempt
under Rule 3a-7 under the Investment Company Act of 1940, as amended, and all
applicable rules, regulations and interpretations thereunder, and would not
affect the characterization of the Trust as a "grantor trust" under the Code.
See "Description of the Trust Certificates--Optional Exchange". Accordingly, the
Optional Exchange Right described in this Prospectus under the heading
"Description of the Trust Certificates--Optional Exchange" and further described
in the relevant Prospectus Supplement will be available only to the Depositor
and Merrill Lynch & Co. and their respective affiliates and designees. Other
Trust Certificateholders will generally not be able to exchange their Trust
Certificates of an Exchangeable Series for a pro rata portion of the Deposited
Assets of the related Trust. In addition, the exercise of an Optional Exchange
Right will decrease the aggregate amount of Trust Certificates of the applicable
Exchangeable Series outstanding.
------------------
The Prospectus Supplement for each Series of Trust Certificates will
set forth information regarding additional risk factors, if any, applicable to
such Series (and each Class within such Series).
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THE DEPOSITOR
The Depositor, a Delaware corporation, is an indirect, wholly owned,
limited-purpose subsidiary of Merrill Lynch & Co., Inc. The principal office of
the Depositor is c/o Merrill Lynch & Co., Inc., World Financial Center, New
York, New York 10281. The Certificate of Incorporation of the Depositor provides
that the Depositor may conduct any lawful activities necessary or incidental to
serving as depositor of one or more trusts that may issue and sell Trust
Certificates.
USE OF PROCEEDS
If the related Deposited Assets are to be purchased by the Depositor,
the net proceeds to be received from the sale of each Series of Trust
Certificates (whether or not offered hereby) for such purchase. In addition, the
Depositor will use such net proceeds to arrange certain Credit Support, if any,
including, if specified in the applicable Prospectus Supplement, required
deposits into any Reserve Account or the applicable Trust Certificate Account
(as defined below) for the benefit of the Trust Certificateholders of such
Series or Class. The remaining net proceeds, if any, will be used by the
Depositor for purposes related to the deposit of Deposited Assets into one or
more Trusts and the preparation, distribution and filing by the Depositor of
periodic reports and other information, including, but not limited to, the fees
and expenses of the Depositor incurred in connection with the ongoing activities
of the Trust(s).
FORMATION OF THE TRUST
The Depositor will assign and deliver the Deposited Assets for each
Series of Trust Certificates to the Trustee named in the applicable Prospectus
Supplement, in its capacity as Trustee, for the benefit of the Trust
Certificateholders of such Series. See "Description of the Trust
Agreement--Assignment of Deposited Assets". The Trustee named in the applicable
Prospectus Supplement will administer the Deposited Assets pursuant to the Trust
Agreement and will receive a fee for such services (the "Trustee Fee"). The
Trustee or an Administrative Agent, if applicable, will either cause the
assignment of the Deposited Assets to be recorded on the books and records of
The Depository Trust Company or will obtain an opinion of counsel that no
recordation is required to obtain a first priority perfected security interest
in such Deposited Assets.
The Depositor's assignment of the Deposited Assets to the Trustee will
be without recourse to the Depositor (except as to certain limited
representations and warranties, if any).
The applicable Prospectus Supplement will set forth the property of
each Trust, which may consist of (i) such Deposited Assets, or interests
therein, exclusive of any interest in such assets (the "Retained Interest")
retained or acquired by the Depositor, or any previous owner thereof or any
other person or entity, as from time to time are specified in the Trust
Agreement; (ii) such assets as from time to time are identified as deposited in
the related Trust Certificate Account; (iii) rights under the agreement or
agreements pursuant to which the Trustee has acquired such Deposited Assets;
(iv) those elements of Credit Support, if any, provided with respect to any
Series (or Class within such Series) within such Series that are specified as
being part of the related Trust in the applicable Prospectus Supplement, as
described therein and under "Description of Deposited Assets--Credit Support";
and (v) any cash or other property received upon the sale, exchange, collection
or other disposition of any of the foregoing.
MATURITY AND YIELD CONSIDERATIONS
Each Prospectus Supplement will, to the extent applicable, contain
information with respect to the types and maturities of the related Underlying
Securities and the terms, if any, upon which such Underlying Securities may be
subject to early redemption or repayment. Provisions for optional or mandatory
redemption or repayment prior to stated maturity, if exercised, will reduce the
weighted average life of Underlying Securities and the related Series (or Class
within such Series) of Trust Certificates. A variety of tax, accounting,
economic, and other factors will influence whether an Underlying Securities
Issuer exercises any right of redemption in respect of its securities.
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All else remaining equal, if prevailing interest rates are below the interest
rates on the related Underlying Securities, the likelihood of redemption would
be expected to increase. There can be no assurance that any Underlying Security
redeemable at the option of the Underlying Security Issuer will remain
outstanding until its stated maturity.
In addition, the effective yield to holders of the Trust Certificates
of any Series (and Class within such Series) may be affected by certain terms of
the Deposited Assets or the manner and priorities of allocations of collections
with respect to such Deposited Assets between Classes of a given Series.
As specified in the applicable Prospectus Supplement, each of the
Underlying Securities may be subject to acceleration upon the occurrence of
certain events of default under the terms of the Underlying Securities. The
maturity and yield on the Trust Certificates will be affected by any early
repayment of the Underlying Securities as a result of the acceleration of the
Underlying Securities by or on behalf of the holders thereof. See "Description
of Deposited Assets--Underlying Securities Indenture". If an Underlying
Securities Issuer becomes subject to a bankruptcy proceeding, the timing and
amount of payments with respect to the principal of, the premium on, if any, and
the interest to be distributed in respect of the Trust Certificates may be
materially and adversely affected. Several factors influence the performance of
issuers that are corporations or other business entities; these factors may
affect an Underlying Securities Issuer's ability to satisfy its obligations
under the Underlying Securities, including the company's operating and financial
condition, leverage, and economic, geographic, legal and social factors.
The extent to which the yield to maturity of such Trust Certificates
may vary from the anticipated yield due to the rate and timing of payments on
the Deposited Assets will depend upon the degree to which they are purchased at
a discount or premium and the degree to which the timing of payments thereon is
sensitive to the rate and timing of payments on the Deposited Assets.
The yield to maturity of any Series (or Class) of Trust Certificates
will also be affected by variations in the interest rates applicable to, and the
corresponding payments in respect of, such Trust Certificates, to the extent
that the Trust Certificate Rate, if any, for such Series (or Class) is based on
variable or adjustable interest rates. With respect to any Series of Trust
Certificates representing an interest in a pool of debt, or other eligible,
securities, disproportionate principal payments (whether resulting from
differences in amortization schedules, payments due on scheduled maturity or
upon early redemption) on the related Underlying Securities having interest
rates higher or lower than the then applicable Trust Certificate Rates, if any,
applicable to such Trust Certificates may affect the yield thereon.
The Prospectus Supplement for each Series of Trust Certificates will
set forth additional information regarding yield and maturity considerations
applicable to such Series (and each Class within such Series) and the related
Deposited Assets, including the applicable Underlying Securities.
DESCRIPTION OF THE TRUST CERTIFICATES
Each Series (or, if more than one Class exists, the Classes within such
Series) of Trust Certificates will be issued pursuant to the Standard Terms and
a supplement thereto (the "Series Supplement") between the Depositor and the
Trustee named in the applicable Prospectus Supplement; a form of which Trust
Agreement is attached as an exhibit to the Registration Statement. The
provisions of the Trust Agreement may vary depending upon the terms of both the
Trust Certificates to be issued thereunder and the Deposited Assets, the Credit
Support, if any, and related Trust. The following summaries describe material
provisions of the Trust Agreement which may be applicable to each Series of
Trust Certificates. The applicable Prospectus Supplement for a Series of Trust
Certificates will describe any material provision of the Trust Agreement that is
not described herein or the description of which is materially different from
the description herein. The following summaries do not purport to be complete
and are subject to the detailed provisions of the form of Trust Agreement to
which reference is hereby made for a full description of such provisions,
including the definition of certain terms used, and for other information
regarding the Trust Certificates. Wherever particular defined terms of the Trust
Agreement are referred to, such defined terms are incorporated herein by
reference as part of the statement made, and the statement is qualified in its
entirety by such reference. As used herein with respect to any Series, the term
"Trust Certificate"
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refers to all the Trust Certificates of that Series (and each Class within such
Series), whether or not offered hereby and by the applicable Prospectus
Supplement, unless the context otherwise requires.
A copy of the Series Supplement relating to each Series of Trust
Certificates issued from time to time will be filed by the Depositor as an
exhibit to a Current Report on Form 8-K, which will be filed with the Commission
following the issuance of such Series.
General
There is no limit on the amount of Trust Certificates that may be
issued under the Trust Agreement, and the Trust Agreement will provide that
Trust Certificates of the applicable Series may be issued in multiple Classes.
The Series (or Classes within such Series) of Trust Certificates to be issued
under the Trust Agreement will represent the entire beneficial ownership
interest in the Trust for such Series created pursuant to the Trust Agreement
and each such Class will be allocated certain relative priorities to receive
specified collections from, and a certain percentage ownership interest of the
assets deposited in, such Trust, all as identified and described in the
applicable Prospectus Supplement. See "Description of Deposited
Assets--Collections". Reference is made to the applicable Prospectus Supplement
for a description of the following terms of the Series of Trust Certificates in
respect of which this Prospectus and such Prospectus Supplement are being
delivered:
(i) the title of such Trust Certificates;
(ii) the Series of such Trust Certificates and, if
applicable, the number and designation of Classes of
such Series;
(iii) material information concerning the type,
characteristics and specifications of the Deposited
Assets being deposited into the related Trust by the
Depositor (including, with respect to any Underlying
Security which at the time of such deposit represents
a significant portion of all such Deposited Assets
and any related Credit Support, if any, information
concerning the material terms of each such Underlying
Security, the identity of the issuer thereof and
where publicly available information regarding such
issuer may be obtained);
(iv) the dates on which, or periods during which, such
Series of Trust Certificates may be issued (each, an
"Original Issue Date") and the offering price
thereof;
(v) the limit, if any, upon the aggregate principal
amount or Notional Amount, as applicable, of each
Class thereof;
(vi) if applicable, the relative rights and priorities of
each such Class (including the method for allocating
collections from and defaults or losses on the
Deposited Assets to the Trust Certificateholders of
each such Class);
(vii) whether the Trust Certificates of such Series are
Fixed Rate Trust Certificates or Floating Rate Trust
Certificates (each, as defined below) and the
applicable interest rate (the "Trust Certificate
Rate"), or the method of calculation thereof
applicable to such Series, if variable (a "Floating
Trust Certificate Rate"); the date or dates from
which such interest will accrue; the applicable
Distribution Dates on which interest, principal and
premium, in each case as applicable, on such Series
or Class will be distributable and the related Record
Dates (as defined below), if any;
(viii) the circumstances and conditions under which any of
the Depositor, Merrill Lynch & Co. or the Trustee, or
their respective designees, may exercise an Optional
Exchange Right (to the extent that the exercise of
such right does not affect the Trust's ability to be
exempt under Rule 3a-7 under the Investment Company
Act of 1940, as amended, and all applicable rules,
regulations and interpretations thereunder and for
treatment of the
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Trust as a "grantor trust" under the Code) and the
periods within which or the dates on which, and the
terms and conditions upon which any such Optional
Exchange may be exercised, in whole or in part;
(ix) the option, if any, of any specified third party
(which may include one or more of the Depositor,
Merrill Lynch & Co. or their affiliates) to purchase
Trust Certificates held by a Trust Certificateholder
and the periods within which or the dates on which,
and the terms and conditions upon which any such
option may be exercised, in whole or in part;
(x) the rating of each Series or each Class within such
Series offered hereby;
(xi) the denominations in which such Series or each Class
within such Series will be issuable;
(xii) whether the Trust Certificates of any Class within a
given Series are to be entitled to (1) principal
distributions, with disproportionate, nominal or no
interest distributions, or (2) interest
distributions, with disproportionate, nominal or no
principal distributions ("Strip Trust Certificates"),
and the applicable terms thereof;
(xiii) the identity of the Depositary (as defined below), if
other than the Depository Trust Company, for such
Trust Certificates;
(xiv) the Specified Currency applicable to the Trust
Certificates of such Series or Class for purposes of
denominations and distributions on such Series or
each Class within such Series and the circumstances
and conditions, if any, when such Specified Currency
may be changed, at the election of the Depositor or a
Trust Certificateholder, and the currency or
currencies in which any principal of or any premium
or any interest on such Series or Class are to be
distributed pursuant to such election;
(xv) all applicable Required Percentages and Voting Rights
relating to the manner and percentage of votes of
Trust Certificateholders of such Series and each
Class within such Series required with respect to
certain actions by the Depositor or the Trustee under
the Trust Agreement or with respect to the applicable
Trust;
(xvi) remedies upon the occurrence of a payment default on
the Underlying Securities on an acceleration of the
Underlying Securities; and
(xvii) all other material terms of such Series or Class
within such Series of Trust Certificates.
The United States Federal income tax consequences and ERISA
consequences relating to any Series or any Class within such Series of Trust
Certificates will be described in the applicable Prospectus Supplement. In
addition, any special considerations, the specific terms and other information
with respect to the issuance of any Series or Class within such Series of Trust
Certificates on which the principal of and any premium and interest are
distributable in a Specified Currency other than U.S. dollars will be described
in the applicable Prospectus Supplement. The U.S. dollar equivalent of the
public offering price or purchase price of a Trust Certificate having a
Specified Currency other than U.S. dollars will be determined on the basis of
the noon buying rate in New York City for cable transfers in foreign currencies
as certified for customs purposes by the Federal Reserve Bank of New York for
such Specified Currency on the applicable issue date. As specified in the
applicable Prospectus Supplement, such determination will be made by the
Depositor, the Trustee, the Administrative Agent, if any, or an agent thereof as
exchange rate agent for each Series of Trust Certificates. If a noon buying rate
is not published for a Specified Currency, the applicable Prospectus Supplement
will set forth another source for all exchange rate calculations.
Transfers of beneficial ownership interests in any Global Security will
be effected in accordance with the normal procedures of The Depository Trust
Company or any other specified Depositary. If Definitive Trust
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Certificates are issued in the limited circumstances described herein, they may
be transferred or exchanged for like Trust Certificates of the same Series at
the corporate trust office or agency of the applicable Trustee in the City and
State of New York, subject to the limitations set forth in the Trust Agreement,
without the payment of any service charge, other than any tax or governmental
charge payable in connection therewith.
Distributions
Distributions allocable to principal, premium (if any) and interest on
the Trust Certificates of each Series (and each Class within such Series) will
be made by or on behalf of the Trustee on each Distribution Date as specified in
the applicable Prospectus Supplement, and the amount of each distribution will
be determined as of the close of business on the date specified in the
applicable Prospectus Supplement (the "Record Date").
Except as provided in the succeeding paragraph, distributions with
respect to Trust Certificates will be made at the corporate trust office or
agency of the Trustee specified in the applicable Prospectus Supplement in The
City of New York; provided that any such amounts distributable on the Final
Scheduled Distribution Date of a Trust Certificate will be distributed only upon
surrender of such Trust Certificate at the applicable location set forth above.
Distributions on Trust Certificates will be made, except as provided
below, by check mailed to the Trust Certificateholders listed on the relevant
Record Date in the ownership register maintained for that purpose under the
Trust Agreement (which, in the case of Global Securities, will be a nominee of
the Depositary). A Trust Certificateholder of $10,000,000 or more in aggregate
principal amount of Trust Certificates of a given Series, and any holder of a
Global Security, shall be entitled to receive such distributions by wire
transfer of immediately available funds, but only if appropriate wire transfer
instructions have been received in writing by the Trustee for such Series not
later than 10 calendar days prior to the applicable Distribution Date.
"Business Day" with respect to any Trust Certificate means any day
other than (i) 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 or (ii) a business day,
as such term is used in the indenture for the Underlying Securities (the
"Indenture").
Interest on the Trust Certificates
Each Class of Trust Certificates (other than certain Classes of Strip
Trust Certificates) of a given Series may have a different Trust Certificate
Rate, which may be a fixed or floating Trust Certificate Rate, as described
below. In the case of Strip Trust Certificates with a nominal or no Trust
Certificate Principal Balance, such distributions of interest will be in an
amount described in the applicable Prospectus Supplement. For purposes hereof,
"Notional Amount" means the notional principal amount specified in the
applicable Prospectus Supplement on which interest on Strip Trust Certificates
with a nominal or no Trust Certificate Principal Balance will be made on each
Distribution Date. Reference to the Notional Amount of a Class of Strip Trust
Certificates herein or in a Prospectus Supplement does not indicate that such
Trust Certificates represent the right to receive any distribution in respect of
principal in such amount, but rather the term "Notional Amount" is used solely
as a basis for calculating the amount of required distributions and determining
certain relative Voting Rights, all as specified in the applicable Prospectus
Supplement. The Trust Certificate Rate will be described in the applicable
Prospectus Supplement and will be based upon the rate of interest received on
the Underlying Securities, Credit Support, if any, and any payments payable in
respect of the Retained Interest (if any). The Trust Certificate Rate may be
either a fixed rate or a floating rate.
Fixed Rate Trust Certificates. Each Series of Trust Certificates with a
fixed Trust Certificate Rate ("Fixed Rate Trust Certificates") will bear
interest, on the outstanding Trust Certificate Principal Balance, from its
Original Issue Date, or from the last date to which interest has been paid, at
the fixed Trust Certificate Rate stated on the face thereof and in the
applicable Prospectus Supplement until the principal amount thereof is
distributed or made available for repayment (or, in the case of Fixed Rate Trust
Certificates with a nominal or no principal amount, until
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the Notional Amount thereof is reduced to zero), except that, if so specified in
the applicable Prospectus Supplement, the Trust Certificate Rate for such Series
or any such Class or Classes may be subject to adjustment from time to time in
response to designated changes in the rating assigned to such Trust Certificates
by one or more Rating Agencies, in accordance with a schedule or otherwise, all
as described in such Prospectus Supplement. Unless otherwise set forth in the
applicable Prospectus Supplement, interest on each Series or Class of Fixed Rate
Trust Certificates will be distributable in arrears on each Distribution Date
specified in such Prospectus Supplement. Each such distribution of interest
shall include interest accrued through the day specified in the applicable
Prospectus Supplement. Unless otherwise specified in the applicable Prospectus
Supplement, interest on Fixed Rate Trust Certificates will be computed on the
basis of a 360-day year of twelve 30-day months.
Floating Rate Trust Certificates. Each Series of Trust Certificates
with a variable Trust Certificate Rate ("Floating Rate Trust Certificates") will
bear interest, on the outstanding Trust Certificate Principal Balance, from its
Original Issue Date to but excluding the first Interest Reset Date (as defined
below) for such Series at the Initial Trust Certificate Rate set forth on the
face thereof and in the applicable Prospectus Supplement. Thereafter, the Trust
Certificate Rate on such Series for each Interest Reset Period (as defined
below) will be determined by reference to an interest rate basis (the "Base
Rate"), plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any. The Base Rate for any Series of Trust Certificates will, as
described in greater detail below, be a fluctuating rate of interest that is
publicly available and is established by reference to quotations provided by
third parties of the interest rate from time to time prevailing on loans or
other extensions of credit in a specified credit market. The "Spread" is the
number of basis points (one basis point equals one one-hundredth of a percentage
point) that may be specified in the applicable Prospectus Supplement as being
applicable to such Series, and the "Spread Multiplier" is the percentage that
may be specified in the applicable Prospectus Supplement as being applicable to
such Series, except that if so specified in the applicable Prospectus
Supplement, the Spread or Spread Multiplier on such Series of Floating Rate
Trust Certificates may be subject to adjustment from time to time in response to
designated changes in the rating assigned to such Trust Certificates by one or
more Rating Agencies, in accordance with a schedule or otherwise, all as
described in such Prospectus Supplement. The applicable Prospectus Supplement,
unless otherwise specified therein, will designate one of the following Base
Rates as applicable to a Floating Rate Trust Certificate: (i) the CD Rate ("CD
Rate Trust Certificate"), (ii) the Commercial Paper Rate ("Commercial Paper Rate
Trust Certificate"), (iii) the Federal Funds Rate ("Federal Funds Rate Trust
Certificate"), (iv) LIBOR ("LIBOR Trust Certificate"), (v) the Prime Rate
("Prime Rate Trust Certificate"), (vi) the Treasury Rate ("Treasury Rate Trust
Certificate") or (vii) another Base Rate, as set forth in the applicable
Prospectus Supplement. The "Index Maturity" for any Series of Floating Rate
Trust Certificates is the period of maturity of the instrument or obligation
from which the Base Rate is calculated. "H.15(519)" means the publication
entitled "Statistical Release H.15(519), Selected Interest Rates", or any
successor publication of the Board of Governors of the Federal Reserve System.
"Composite Quotations" means the daily statistical release entitled "Composite
3:30 p.m. Quotations for U.S. Government Securities", or any successor
publication, published by the Federal Reserve Bank of New York. Interest will be
payable only from cash received by the Trustee from the Deposited Assets or
other assets deposited in the Trust and available for application to such
payment, notwithstanding the accrual of interest on the Trust Certificate
Principal Balance at a higher rate.
As specified in the applicable Prospectus Supplement, Floating Rate
Trust Certificates of a given Series may also have either or both of the
following (in each case expressed as a rate per annum on a simple interest
basis): (i) a maximum limitation, or ceiling, on the rate at which interest may
accrue during any interest accrual period specified in the applicable Prospectus
Supplement ("Maximum Trust Certificate Rate") and (ii) a minimum limitation, or
floor, on the rate at which interest may accrue during any such interest accrual
period ("Minimum Trust Certificate Rate"). In addition to any Maximum Trust
Certificate Rate that may be applicable to any Series of Floating Rate Trust
Certificates, the Trust Certificate Rate applicable to any Series of Floating
Rate Trust Certificates will in no event be higher than the maximum rate
permitted by applicable New York and United States federal law. Under applicable
New York and United States federal law as of the date of this Prospectus, the
maximum rate of interest, with certain exceptions, is 25% per annum on a simple
interest basis.
The Depositor will appoint, and enter into agreements with, agents
(each, a "Calculation Agent") to calculate Floating Trust Certificate Rates on
each Series of Floating Rate Trust Certificates. The applicable Prospectus
Supplement will set forth the identity of the Calculation Agent for each Series
of Floating Rate Trust Certificates. All determinations of interest by the
Calculation Agent shall, if made on a commercially reasonable
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basis and in good faith, be conclusive for all purposes and binding on the
holders of Floating Rate Trust Certificates of a given Series.
The Floating Trust Certificate Rate will be reset daily, weekly,
monthly, quarterly, semiannually or annually (such period being the "Interest
Reset Period", and the first day of each Interest Reset Period being an
"Interest Reset Date"), as specified in the applicable Prospectus Supplement.
Interest Reset Dates with respect to each Series will be specified in the
applicable Prospectus Supplement; provided that unless otherwise specified in
such Prospectus Supplement, the Trust Certificate Rate in effect for the 10 days
immediately prior to the Final Scheduled Distribution Date will be that in
effect on the tenth day preceding such Final Scheduled Distribution Date. If an
Interest Reset Date for any Series of Floating Rate Trust Certificates would
otherwise be a day that is not a Business Day, such Interest Reset Date will
occur on the next Business Day, except that, in the case of a LIBOR Trust
Certificate, if such Business Day would fall in the next calendar month, such
Interest Reset Date will be the immediately preceding Business Day.
Unless otherwise specified in the applicable Prospectus Supplement,
interest payable in respect of Floating Rate Trust Certificates shall be the
accrued interest from and including the Original Issue Date of such Series or
the last Interest Reset Date to which interest has accrued and been distributed,
as the case may be, to but excluding the immediately following Distribution
Date. With respect to a Floating Rate Trust Certificate, accrued interest shall
be calculated by multiplying the Trust Certificate Principal Balance of such
Trust Certificate by an accrued interest factor. Such accrued interest factor
will be computed by adding the interest factors calculated for each day in the
period for which accrued interest is being calculated. Unless otherwise
specified in the applicable Prospectus Supplement, the interest factor
(expressed as a decimal calculated to seven decimal places without rounding) for
each such day is computed by dividing the Trust Certificate Rate in effect on
such day by 360, in the case of LIBOR Trust Certificates, Commercial Paper Rate
Trust Certificates, Federal Funds Rate Trust Certificates, Prime Rate Trust
Certificates and CD Rate Trust Certificates or by the actual number of days in
the year, in the case of Treasury Rate Trust Certificates. For purposes of
making the foregoing calculation, the variable Trust Certificate Rate in effect
on any Interest Reset Date will be the applicable rate as reset on such date.
Unless otherwise specified in the applicable Prospectus Supplement, all
percentages resulting from any calculation of the Trust Certificate Rate on a
Floating Rate Trust Certificate will be rounded, if necessary, to the nearest
1/100,000 of 1% (.0000001), with five one-millionths of a percentage point
rounded upward, and all currency amounts used in or resulting from such
calculation on Floating Rate Trust Certificates will be rounded to the nearest
one-hundredth of a unit (with .005 of a unit being rounded upward).
Interest on any Series of Floating Rate Trust Certificates will be
distributable on the Distribution Dates and for the interest accrual periods as
and to the extent set forth in the applicable Prospectus Supplement.
The "Calculation Date", where applicable, pertaining to a Record Date
will be the earlier of (i) the tenth calendar day after such Record Date or, if
any such day is not a Business Day, the next succeeding Business Day or (ii) the
Business Day preceding the applicable Distribution Date.
Upon the request of the holder of any Floating Rate Trust Certificate
of a given Series, the Calculation Agent for such Series will provide the Trust
Certificate Rate then in effect and, if determined, the Trust Certificate Rate
that will become effective on the next Interest Reset Date with respect to such
Floating Rate Trust Certificate.
CD Rate Trust Certificates. CD Rate Trust Certificates will bear
interest at the interest rates (calculated with reference to the CD Rate and the
Spread and/or the Spread Multiplier, if any) specified in the applicable
Prospectus Supplement.
The "CD Rate" means, with respect to any Record Date, the rate on such
date for negotiable certificates of deposit having the applicable Index
Maturity, as published by the Board of Governors of the Federal Reserve System
in H.15(519) under the heading "CDs (Secondary Market)". If such rate is not
published by 9:00 a.m., New York City time, on the Calculation Date pertaining
to such Record Date, the CD Rate will be the rate on such Record Date for
negotiable certificates of deposit of the applicable Index Maturity, as
published by the Federal Reserve Bank of New York in Composite Quotations, under
the heading "Trust Certificates of Deposit". If such
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rate is not published in Composite Quotations by 3:00 p.m., New York City time,
on the Calculation Date pertaining to such Record Date, then the CD Rate for
such Record Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 a.m., New York
City time, on such Record Date, of three leading nonbank dealers in negotiable
U.S. dollar certificates of deposit in The City of New York, selected by the
Calculation Agent after consultation with the Depositor, for negotiable
certificates of deposit of major United States money center banks of the highest
credit standing (in the market for negotiable certificates of deposit) with a
remaining maturity closest to the applicable Index Maturity in a denomination of
$5,000,000; provided that, if the dealers selected as aforesaid by the
Calculation Agent are not quoting such rates, the interest rate for the period
commencing on the Interest Reset Date following such Record Date will be the
interest rate borne by such CD Rate Trust Certificates on such Record Date.
CD Rate Trust Certificates, like other Trust Certificates, are not
deposit obligations of a bank and are not insured by the Federal Deposit
Insurance Corporation.
Commercial Paper Rate Trust Certificates. Commercial Paper Rate Trust
Certificates will bear interest at the interest rates (calculated with reference
to the Commercial Paper Rate and the Spread and/or the Spread Multiplier, if
any) specified in the applicable Prospectus Supplement.
The "Commercial Paper Rate" means, with respect to any Record Date, the
Money Market Yield (as defined below) on such date of the rate for commercial
paper having the applicable Index Maturity, as published in H.15(519) under the
heading "Commercial Paper". If such rate is not published prior to 9:00 a.m.,
New York City time, on the Calculation Date pertaining to such Record Date, the
Commercial Paper Rate will be the Money Market Yield on such Record Date of the
rate for commercial paper of the applicable Index Maturity, as published by the
Federal Reserve Bank of New York in Composite Quotations under the heading
"Commercial Paper". If such rate is not published in Composite Quotations by
3:00 p.m., New York City time, on the Calculation Date pertaining to such Record
Date, then the Commercial Paper Rate for such Record Date will be calculated by
the Calculation Agent and will be the Money Market Yield of the arithmetic mean
of the offered rates as of 11:00 a.m., New York City time, on such Record Date
of three leading dealers of commercial paper in The City of New York, selected
by the Calculation Agent after consultation with the Depositor, for commercial
paper of the applicable Index Maturity, placed for industrial issuers whose bond
rating (as determined by a nationally recognized rating agency) is "AA" or the
equivalent; provided that, if the dealers selected as aforesaid by the
Calculation Agent are not quoting such rates, the interest rate for the period
commencing on the Interest Reset Date following such Record Date will be the
interest rate borne by such Commercial Paper Rate Trust Certificates on such
Record Date.
"Money Market Yield" will be a yield calculated in accordance with the
following formula:
Money Market Yield = D X 360 X 100
---------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the applicable period for which interest is being calculated.
Federal Funds Rate Trust Certificates. Federal Funds Rate Trust
Certificates will bear interest at the interest rates (calculated with reference
to the Federal Funds Rate and the Spread and/or the Spread Multiplier, if any)
specified in the applicable Prospectus Supplement.
The "Federal Funds Rate" means, with respect to any Record Date, the
rate on such date for federal funds, as published in H.15(519) under the heading
"Federal Funds (Effective)". If such rate is not published by 9:00 a.m., New
York City time, on the Calculation Date pertaining to such Record Date, the
Federal Funds Rate will be the rate on such Record Date, as published by the
Federal Reserve Bank of New York in Composite Quotations under the heading
"Federal Funds/Effective Rate". If such rate is not published in Composite
Quotations by 3:00 p.m., New York City time, on the Calculation Date pertaining
to such Record Date, then the Federal Funds Rate for such Record Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the rates
for the last transaction in overnight federal funds arranged by three leading
brokers of federal funds transactions in The
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City of New York, selected by the Calculation Agent after consultation with the
Depositor, as of 9:00 a.m., New York City time, on such Record Date; provided
that, if the brokers selected as aforesaid by the Calculation Agent are not
arranging such transactions, the interest rate for the period commencing on the
Interest Reset Date following such Record Date will be the interest rate borne
by such Federal Funds Trust Certificates on such Record Date.
LIBOR Trust Certificates. LIBOR Trust Certificates will bear interest
at the interest rates (calculated with reference to LIBOR and the Spread and/or
the Spread Multiplier, if any) specified in the applicable Prospectus
Supplement.
"LIBOR" means, with respect to any Record Date, the rate determined by
the Calculation Agent in accordance with either clause (1) or clause (2) below,
as specified in the applicable Prospectus Supplement:
(1) The rate for deposits in U.S. dollars of the Index
Maturity specified in the applicable Prospectus Supplement, commencing
on the second London Banking Day immediately following such Record
Date, that appears on the Telerate Page 3750 as of 11:00 a.m., London
time, on such Record Date ("LIBOR Telerate"). "Telerate Page 3750"
means the display designated as page "3750" on the Telerate Service (or
such other page as may replace the page 3750 on that service or such
other service or services as may be designated by the British Bankers'
Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits).
(2) The arithmetic mean of the offered rates for deposits in
U.S. dollars having the Index Maturity specified in the applicable
Prospectus Supplement, commencing on the second London Banking Day
immediately following such Record Date, that appear on the Reuters
Screen LIBO Page as of 11:00 a.m., London time, on such Record Date, if
at least two such offered rates appear on the Reuters Screen LIBO Page
("LIBOR Reuters"). "Reuters Screen LIBO Page" means the display
designated as Page "LIBO" on the Reuters Monitor Money Rate Service (or
such other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major banks).
If neither LIBOR Telerate nor LIBOR Reuters is specified in the
applicable Prospectus Supplement, LIBOR will be determined as if LIBOR Telerate
had been specified.
If (i) in the case where paragraph (1) above applies, no rate appears
on the Telerate Page 3750 or (ii) in the case where paragraph (2) above applies,
fewer than two offered rates appear on the Reuters Screen LIBO Page, LIBOR in
respect of such Record Date will be determined by the Calculation Agent on the
basis of the rates at which deposits in U.S. dollars of the Index Maturity
specified in the applicable Prospectus Supplement are offered to prime banks in
the London interbank market at approximately 11:00 a.m., London time, on such
Record Date by four major banks ("Reference Banks") in the London interbank
market, selected by the Calculation Agent, commencing on the second London
Banking Day immediately following such Record Date in a principal amount of not
less than $1,000,000 that is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR for such Record Date will be the
arithmetic mean of such quotations. If fewer than two quotations are provided,
LIBOR for such Record Date will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m., New York City time, on such Record Date by three major
commercial or investment banks (which may include Merrill Lynch & Co. or any of
its affiliates) in The City of New York, selected by the Calculation Agent, for
U.S. dollar loans of the applicable Index Maturity to leading European banks,
commencing on the second London Banking Day immediately following such Record
Date, in a principal amount of not less than $1,000,000 that is representative
for a single transaction in such market at such time; provided that, if the
banks selected as aforesaid by the Calculation Agent are not quoting such rates,
the interest rate for the period commencing on the Interest Reset Date following
such Record Date will be the interest rate borne by such LIBOR Notes on such
Record Date.
If any LIBOR Trust Certificate is indexed to the offered rates for
deposits in a Specified Currency other than U.S. dollars, the applicable
Prospectus Supplement will set forth the method for determining such rates.
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Prime Rate Trust Certificates. Prime Rate Trust Certificates will bear
interest at the interest rates (calculated with reference to the Prime Rate and
the Spread and/or the Spread Multiplier, if any) specified in the applicable
Prospectus Supplement.
The "Prime Rate" means, with respect to any Record Date, the rate on
such date, as published in H.15(519) under the heading "Bank Prime Loan". If
such rate is not published by 9:00 a.m., New York City time, on the Calculation
Date pertaining to such Record Date, the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of the rates of interest
publicly announced by each bank named on the "Reuters Screen NYMF Page" as such
bank's prime rate or base lending rate as in effect for such Record Date.
"Reuters Screen NYMF Page" means the display designated as page "NYMF" on the
Reuters Monitor Money Rates Service (or such other page as may replace the NYMF
page on that service for the purpose of displaying prime rates or base lending
rates of major U.S. banks). If fewer than four but more than one such rate
appears on the Reuters Screen NYMF Page for such Record Date, the Prime Rate
will be determined by the Calculation Agent and will be the arithmetic mean of
the prime rates, quoted on the basis of the actual number of days in the year
divided by 360, as of the close of business on such Record Date by four major
money center banks in The City of New York, selected by the Calculation Agent
after consultation with the Depositor. If fewer than two such rates appear on
the Reuters Screen NYMF Page, the Prime Rate will be calculated by the
Calculation Agent and will be the arithmetic mean of the prime rates in effect
for such Record Date as furnished in The City of New York by at least three
substitute banks or trust companies organized and doing business under the laws
of the United States, or any state thereof, in each case having total equity
capital of at least $500,000,000 and subject to supervision or examination by
federal or state authority, selected by the Calculation Agent after consultation
with the Depositor; provided that, if the banks or trust companies selected as
aforesaid by the Calculation Agent are not quoting such rates, the interest rate
for the period commencing on the Interest Reset Date following such Record Date
will be the interest rate borne by such Prime Rate Trust Certificates on such
Record Date.
Treasury Rate Trust Certificates. Treasury Rate Trust Certificates will
bear interest at the interest rates (calculated with reference to the Treasury
Rate and the Spread and/or the Spread Multiplier, if any) specified in the
applicable Prospectus Supplement.
The "Treasury Rate" means, with respect to any Record Date, the rate
for the auction held on such Record Date of treasury bills of the Index Maturity
specified in the applicable Prospectus Supplement, as published in H.15(519)
under the heading "U.S. Government Securities--Treasury bills-auction average
(investment)". If such rate is not published by 9:00 a.m., New York City time,
on the Calculation Date pertaining to such Record Date, the Prime Rate will be
the auction average rate for such Record Date (expressed as a bond equivalent,
rounded to the nearest one-hundredth of one percent, with five one-thousandths
of a percent rounded upward, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. If the results of the auction of treasury
bills having the applicable Index Maturity are not published or reported as
provided above by 3:00 p.m., New York City time, on such Calculation Date, or if
no such auction is held on such Record Date, then the Treasury Rate will be
calculated by the Calculation Agent and will be a yield to maturity (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on such Record Date,
of three leading primary United States government securities dealers, selected
by the Calculation Agent after consultation with the Depositor, for the issue of
treasury bills with a remaining maturity closest to the applicable Index
Maturity; provided that, if the dealers selected as aforesaid by the Calculation
Agent are not quoting such rates, the interest rate for the period commencing on
the Interest Reset Date following such Record Date will be the interest rate
borne by such Treasury Rate Trust Certificates on such Record Date.
Principal of the Trust Certificates
Each Trust Certificate (other than certain Classes of Strip Trust
Certificates) will have a "Trust Certificate Principal Balance" which, at any
time, will equal the maximum amount that the holder thereof will be entitled to
receive in respect of principal out of the future cash flows on the Deposited
Assets. The applicable Prospectus Supplement will include a section entitled
"Description of the Trust Certificates--Collections and Distributions" which
will set forth the priority of distributions on each Class of Trust Certificates
in a given Series. The
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outstanding Trust Certificate Principal Balance of a Trust Certificate will be
reduced to the extent of distributions of principal thereon, and, if applicable
pursuant to the terms of the related Series, by the amount of any net losses
realized on any Deposited Asset ("Realized Losses") allocated thereto. The
initial aggregate Trust Certificate Principal Balance of Trust Certificates of a
Series will equal the outstanding aggregate principal balance of the related
Deposited Assets as of the applicable Cut-off Date. The initial aggregate Trust
Certificate Principal Balance of a Series will be specified in the applicable
Prospectus Supplement.
Optional Exchange
The applicable Prospectus Supplement may provide that any of the
Depositor, Merrill Lynch & Co. or the Trustee, or their respective designees,
may exchange Trust Certificates of any given Series (an "Exchangeable Series")
for a pro rata portion of the Deposited Assets (an "Optional Exchange Right").
The applicable Prospectus Supplement will specify the terms upon which an
Optional Exchange Right may be exercised; provided that (a) any Optional
Exchange Right shall be exercisable only to the extent that the exercise of such
right does not affect the Trust's ability to be exempt under Rule 3a-7 under the
Investment Company Act of 1940, as amended, and all applicable rules,
regulations and interpretations thereunder and would not affect the
characterization of the Trust as a "grantor trust" under the Code and (b) if the
Deposited Assets constitute a pool of Underlying Securities, any exercise of the
Optional Exchange Right will be effected so that, with respect to each series or
issue of Underlying Securities included in such pool (together with any related
assets that credit enhance or otherwise support that series or issue of
Underlying Securities), the proportion that the principal amount of such series
or issue of Underlying Securities (together with such related assets) bears to
the aggregate principal amount of Trust Certificates immediately prior to such
exercise will be equal to the proportion that the principal amount of such
series or issue of Underlying Securities (together with such related assets)
bears to the aggregate principal amount of Trust Certificates immediately after
such exercise. In addition, the exercise of an Optional Exchange Right will
decrease the aggregate amount of Trust Certificates of the applicable
Exchangeable Series outstanding. See "Risk Factors--General Unavailability of
Optional Exchange".
While the exercise of an Optional Exchange will decrease the aggregate
amount of Trust Certificates of the applicable Exchangeable Series outstanding,
the availability of the Optional Exchange Right may increase liquidity for the
Trust Certificateholders. The ability to exchange Trust Certificates for
Underlying Securities enables the Depositor, Merrill Lynch & Co. or the Trustee,
or their respective designees, to sell the Underlying Security, which may be
part of a more liquid issue than the Trust Certificates, at a better price for
the holder than the sale of the less liquid Trust Certificates.
Default and Remedies
If there is a payment default on or acceleration of the Underlying
Securities, then the Trustee of the relevant Trust will exercise one of the
following remedies: (i) sell all of such Underlying Securities and distribute
the proceeds from such sale to the Trust Certificateholders in accordance with
the Allocation Ratio (any such sale may result in a loss to the Trust
Certificateholders of the relevant Series if the sale price is less than the
purchase price for such Underlying Securities), (ii) distribute such Underlying
Securities in kind to the Trust Certificateholders in accordance with the
Allocation Ratio, or (iii) elect either (i) or (ii) based upon a majority of
votes cast by the affected Trust Certificateholders. The choice of remedies will
be set forth for a given Series in the Prospectus Supplement, and the Trustee,
Depositor and Trust Certificateholders will have no discretion in this respect.
The "Allocation Ratio" is the allocation between Classes of a given
Series of the total expected cash flows from the Deposited Assets of that
Series. The Prospectus Supplement for any Series with more than one Class will
set forth the Allocation Ratio for that Series. In addition to default or
acceleration on Underlying Securities, the Allocation Ratio relates to voting
rights held by owners of Underlying Securities because such rights will be
allocated among the Trust Certificateholders of different Classes of a given
Series in accordance with their economic interests. Further, the Allocation
Ratio applies in the event of a sale or distribution of Underlying Securities
once an issuer of Concentrated Underlying Securities ceases to file periodic
reports under the Exchange Act, as discussed below under "Description of
Deposited Assets--Principal Terms of Underlying Securities".
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Call Right
Merrill Lynch & Co. or the Depositor or, if so specified in the
relevant Prospectus Supplement, a transferee as a result of a private placement
to eligible investors, may hold the right to purchase all or some of the Trust
Certificates of a given Series or Class from the holders thereof, prior to
maturity (a "Call Right"). If one or more specified persons holds a Call Right,
the applicable Prospectus Supplement will designate such Series as a "Callable
Series". The terms upon which any such specified person or entity may exercise a
Call Right will be specified in the applicable Prospectus Supplement. Such terms
may relate to, but are not limited to, the following:
(a) a requirement that the Trust Certificate Principal
Balance of each Trust Certificate being purchased be
an integral multiple of an amount specified in the
Prospectus Supplement;
(b) specified dates during which a Call Right may be
exercised, which may include any and all times that
the Trust Certificates remain outstanding; and
(c) the price or prices at which a Call Right may be
exercised, which may include fixed dollar amounts or
be calculated as a percentage of the principal amount
of the Trust Certificates outstanding (each, a "Call
Price").
After receiving notice of the exercise of a Call Right, the Trustee
will provide notice thereof as specified in the Standard Terms. Upon the
satisfaction of any applicable conditions to the exercise of a Call Right, each
Trust Certificateholder will be entitled to receive (in the case of a purchase
of less than all of the Trust Certificates) payment of a pro rata share of the
Call Price paid in connection with such exercise. The Call Right will not be
exercised unless the value of the Underlying Securities exceeds the Call Price
payable upon exercise of the Call Right.
Put Right
Trust Certificates may be issued with Underlying Securities that permit
the holder thereof to require the Underlying Securities Issuer to repurchase or
otherwise repay (in each case, a "Put Option") such Underlying Securities
("Puttable Underlying Securities") on or after a fixed date. In such cases, the
Trustee for such Series of Trust Certificates will exercise the Put Option on
the first date such option is available to be exercised (the "Put Date") and the
Put Date will also be the Final Scheduled Distribution Date with respect to such
Series; provided, however, if the holder of a Call Right has exercised that
right prior to the Final Scheduled Distribution Date, then the Trust
Certificates of the Callable Series will be redeemed as described in
"Description of the Trust Certificates--Call Right". The Depositor will not
issue a Series of Trust Certificates with Puttable Underlying Securities if it
would either (i) 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 or (ii) affect the characterization of the Trust as a "grantor trust" under
the Code.
Global Securities
Unless otherwise specified in the applicable Prospectus Supplement, all
Trust Certificates of a given Series will, upon issuance, be represented by one
or more Global Securities that will be deposited with, or on behalf of, the
Depositary, and registered in the name of a nominee of the Depositary. Unless
and until it is exchanged in whole or in part for the individual Trust
Certificates represented thereby (each, a "Definitive Trust Certificate"), a
Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee of
such successor.
The Depository Trust Company has advised the Depositor as follows: The
Depository Trust Company is a limited-purpose trust company organized under the
laws of the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "Clearing Agency" registered pursuant to the provisions of Section
17A of the Exchange Act. The Depository Trust Company was created to hold
securities of its Participants and to facilitate the clearance and settlement of
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securities transactions among the institutions that have accounts with such
Depositary ("Participants") in such securities through electronic book-entry
changes in accounts of the Participants, thereby eliminating the need for
physical movement of securities certificates. Such Depositary's Participants
include securities brokers and dealers (including Merrill Lynch & Co.), banks,
trust companies, clearing corporations and certain other organizations, some of
which (and/or their representatives) own such Depositary. Access to such
Depositary's book-entry system is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly. The Depository
Trust Company has confirmed to the Depositor that it intends to follow such
procedures.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual Trust Certificates represented by
such Global Security to the accounts of its Participants. The accounts to be
accredited shall be designated by the underwriters of such Trust Certificates,
or, if such Trust Certificates are offered and sold directly through one or more
agents, by the Depositor or such agent or agents. Ownership of beneficial
interests in a Global Security will be limited to Participants or persons or
entities that may hold beneficial interests through Participants. Ownership of
beneficial interests in a Global Security will be shown on, and the transfer of
that ownership will be effected only through, records maintained by the
Depositary for such Global Security or by Participants or persons or entities
that hold through Participants. The laws of some states require that certain
purchasers of securities take physical delivery of such securities. Such limits
and such laws may limit the market for beneficial interests in a Global
Security.
So long as the Depositary for a Global Security, or its nominee, is the
owner of such Global Security, such Depositary or such nominee, as the case may
be, will be considered the sole Trust Certificateholder of the individual Trust
Certificates represented by such Global Security for all purposes under the
Trust Agreement governing such Trust Certificates. Except as set forth below,
owners of beneficial interests in a Global Security will not be entitled to have
individual Trust Certificates represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of any
such Trust Certificates and will not be considered the Trust Certificateholders
thereof under the Trust Agreement governing such Trust Certificates. Because the
Depositary can only act on behalf of its Participants, the ability of a holder
of any Trust Certificate to pledge that Trust Certificate to persons or entities
that do not participate in the Depositary's system, or to otherwise act with
respect to such Trust Certificate, may be limited due to the lack of a physical
certificate for such Trust Certificate.
Distributions of principal of (and premium, if any) and any interest on
individual Trust Certificates represented by a Global Security will be made to
the Depositary or its nominee, as the case may be, as the Trust
Certificateholder of such Global Security. None of the Depositor, the Trustee
for such Trust Certificates, any Paying Agent or the Trust Certificate Registrar
for such Trust Certificates will have responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial interests
in such Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
The Depositor expects that the Depositary for Trust Certificates of a
given Series, upon receipt of any distribution of principal, premium or interest
in respect of a definitive Global Security representing any of such Trust
Certificates, will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of such Depositary. The
Depositary also expects that payments by Participants to owners of beneficial
interests in such Global Security held through such Participants will be
registered in "street name" and will be the responsibility of such Participants.
If the Depositary for Trust Certificates of a given Series is at any
time unwilling or unable to continue as depository and a successor depository is
not appointed by the Depositor within 90 days, the Depositor will issue
individual Definitive Trust Certificates in exchange for the Global Security or
Securities representing such Trust Certificates. In addition, the Depositor may
at any time and in its sole discretion determine not to have any Trust
Certificates of a given Series represented by one or more Global Securities and,
in such event, will issue Definitive Trust Certificates of such Series in
exchange for the Global Security or Securities representing such Trust
Certificates. Further, if the Depositor so specifies with respect to the Trust
Certificates of a given Series, an owner of a beneficial interest in a Global
Security representing Trust Certificates of such Series may, on terms acceptable
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to the Depositor and the Depositary for such Global Security, receive individual
Definitive Trust Certificates in exchange for such beneficial interest. In any
such instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery of individual Definitive Trust Certificates of the
Series represented by such Global Security equal in principal amount to such
beneficial interest and to have such Definitive Trust Certificates registered in
its name.
The applicable Prospectus Supplement will set forth any specific terms
of the depository arrangement with respect to any Series of Trust Certificates
being offered thereby to the extent not set forth or different from the
description set forth above.
DESCRIPTION OF DEPOSITED ASSETS
General
Each Series of Trust Certificates (or, if more than one Class exists,
each Class within such Series) will represent in the aggregate the entire
beneficial ownership interest in the Underlying Securities (which shall be
Government Securities, senior or subordinated publicly-traded debt obligations
of one or more corporations, general or limited partnerships, preferred
securities of TOPrS(sm) trusts (as defined below) organized by such issuers, or
securities that are similar to those issued by TOPrS(sm) trusts, in each case
organized under the laws of the United States of America or any state thereof,
together with other assets. Such other 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 (also described under "Risk Factors--Derivatives") designed to assure
the servicing or timely distribution of payments to holders of the Trust
Certificates. Such assets will be described in the applicable Prospectus
Supplement (such assets, together with the Underlying Securities, the "Deposited
Assets"). Underlying Securities will have been issued pursuant to an effective
registration statement filed with the Commission (or an exemption therefrom). If
the Underlying Securities represent obligations issued by one or more Underlying
Securities Issuers, such Underlying Securities will satisfy certain eligibility
criteria described below under "Underlying Securities Issuer". Except for
Government Securities, the Underlying Securities will be purchased in the
secondary market and will not be acquired from any Underlying Securities Issuer
(whether as part of any distribution by or pursuant to any agreement with such
Underlying Securities Issuer or otherwise). The Underlying Securities will
represent direct obligations of the United States Government, one or more
corporations, general or limited partnerships, preferred securities of TOPrs
Trusts organized by such issuers, or securities that are similar to TOPrS(sm),
in each case, organized under the laws of the United States or any state
thereof. No Underlying Securities Issuer will participate in the offering of the
Trust Certificates, nor will an Underlying Securities Issuer receive any of the
proceeds from the sale of Underlying Securities or from the issuance of the
Trust Certificates.
Deposited Assets for a given Series of Trust Certificates and the
related Trust will not constitute Deposited Assets for any other Series of Trust
Certificates and the related Trust, and the Trust Certificates of a given Series
will possess an equal and ratable undivided ownership interest in such Deposited
Assets. The applicable Prospectus Supplement may, however, specify that certain
assets constituting a part of the Deposited Assets relating to any given Series
may be beneficially owned solely by or deposited solely for the benefit of one
Class or a group of Classes within such Series. In such event, the other Classes
of such Series will not possess any beneficial ownership interest in those
specified assets constituting a part of the Deposited Assets.
This Prospectus relates only to the Trust Certificates offered hereby
and does not relate to the Underlying Securities. The following description of
the Underlying Securities and the Underlying Securities Issuer is intended only
to summarize material characteristics of the Underlying Securities that the
Depositor is permitted to deposit in a Trust and does not purport to be a
complete description of any prospectus relating to Underlying Securities or of
any related Indenture.
The applicable Prospectus Supplement will describe the material terms
of the Deposited Assets, including the material terms of any derivative
instruments that are included in the Deposited Assets.
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Underlying Securities Issuer
The Underlying Securities Issuers will be the United States Government,
one or more corporations, general or limited partnerships, TOPrS(sm) trusts
organized by such issuers, or by issuers of preferred securities that are
similar to TOPrS(sm), in each case organized under the laws of the United States
or any state thereof. The applicable Prospectus Supplement will provide only
limited information about each Underlying Securities Issuer, such as its name,
place of incorporation and the address of its principal offices, unless a Trust
consists of Underlying Securities of a Concentrated Underlying Securities
issuer. In that event, the applicable Prospectus Supplement will include audited
financial statements of such Concentrated Underlying Securities issuer; provided
that if such Underlying Securities Issuer is eligible to use Form S-3 for a
primary offering, then the applicable Prospectus Supplement will only refer to
the periodic reports filed with the Commission by such Underlying Securities
Issuer, which periodic reports should be reviewed by any prospective Trust
Certificateholder of the Trust containing such Underlying Securities. See "Risk
Factors--Information Concerning Underlying Securities Issuers; Risk of Loss if
Public Information not Available".
Reports and information referred to in the preceding paragraph may be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: New York Regional Office, Room
1100, 7 World Trade Center, New York, New York 10048 and Chicago Regional
Office, Suite 1400, Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and copies of such material can be obtained
from the Public Reference Section of the Commission, Washington, D.C. 20549, at
prescribed rates. Such material may also be accessed electronically by means of
the Commission's home page on the Internet at http://www.sec.gov.
WITH RESPECT TO ANY UNDERLYING SECURITIES, A PROSPECTIVE TRUST
CERTIFICATE HOLDER SHOULD OBTAIN AND EVALUATE THE SAME INFORMATION CONCERNING
THE RELEVANT UNDERLYING SECURITIES ISSUER AS IT WOULD OBTAIN AND EVALUATE IF IT
WERE INVESTING DIRECTLY IN THE UNDERLYING SECURITIES OR IN THE ISSUER THEREOF.
None of the Depositor, the Trustee, Merrill Lynch & Co. or any of their
affiliates assumes any responsibility for the accuracy or completeness of any
publicly available information concerning any Underlying Securities Issuer
(including, without limitation, any investigation as to its financial condition
or creditworthiness) or concerning any Underlying Securities (whether or not
such information is filed with the Commission) or otherwise considered by a
purchaser of the Trust Certificates in making its investment decision in
connection therewith; provided that the foregoing shall not apply to any
information concerning the Underlying Securities and any Underlying Securities
Issuer that is expressly set forth in this Prospectus or an applicable
Prospectus Supplement (i.e., identifying information, information of the type
described in an applicable Prospectus Supplement under "Description of the
Underlying Securities--General" and "Description of the Underlying
Securities--Underlying Securities Indenture".
Underlying Securities Indenture
General. Except for Government Securities or unless otherwise specified
in the applicable Prospectus Supplement, each Underlying Security will have been
issued pursuant to an Indenture between the Underlying Securities Issuer and a
trustee (the "Underlying Securities Trustee"). The Indenture and the Underlying
Securities Trustee will be qualified under the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Indenture will contain certain provisions
required by the Trust Indenture Act. Government Securities are not issued
pursuant to an indenture, are exempt from the Securities Act under Section
3(a)(2) thereof and from the Trust Indenture Act under Section 304(a)(4)
thereof.
Certain Covenants. Indentures generally contain covenants intended to
protect security holders against the occurrence or effects of certain specified
events, including restrictions limiting the issuer's, and in some cases one or
more of the issuer's subsidiaries', ability to: (i) consolidate, merge, or
transfer or lease assets; (ii) incur or suffer to exist any lien, charge or
encumbrance upon all or some specified portion of its property or assets, or to
incur, assume, guarantee or suffer to exist any indebtedness for borrowed money
if the payment of such indebtedness is secured by the grant of such a lien; or
(iii) declare or pay any cash dividends, or make any
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distributions on or in respect of, or purchase, redeem, exchange or otherwise
acquire or retire for value, any capital stock or subordinated indebtedness of
the issuer or its subsidiaries, if any. An indenture may also contain financial
covenants which, among other things, require the maintenance of certain
financial ratios or the creation or maintenance of reserves or permit certain
actions to be taken only if compliance with such covenants can be demonstrated
at the time the actions are to be taken. Subject to certain exceptions,
indentures typically may be amended or supplemented and past defaults may be
waived with the consent of the indenture trustee, the consent of the holders of
not less than a specified percentage of the outstanding securities, or both.
The Indenture for one or more Underlying Securities included in a Trust
may include some, all or none of the foregoing provisions or variations thereof,
together with additional covenants not discussed herein. There can be no
assurance that any type of Underlying Securities will be subject to any such
covenants or that any such covenants will protect the Trust as a holder of the
Underlying Securities against losses. The Prospectus Supplement used to offer
any Series of Trust Certificates will describe material covenants concerning any
Concentrated Underlying Security and, as applicable, will describe material
covenants which are common to any pool of Underlying Securities. Any material
risk factors associated with non-investment grade Underlying Securities
deposited into a Trust will be set forth in the applicable Prospectus
Supplement.
Events of Default. Indentures generally provide that any one of a
number of specified events will constitute an event of default with respect to
the securities issued thereunder. Such events of default typically include the
following or variations thereof: (i) failure by the issuer to pay an installment
of interest or principal on the securities at the time required (subject to any
specified grace period) or to redeem any of the securities when required
(subject to any specified grace period); (ii) failure by the issuer to observe
or perform any covenant, agreement or condition contained in the securities or
the indenture which failure is materially adverse to security holders and
continues for a specified period after notice thereof is given to the issuer by
the indenture trustee or the holders of not less than a specified percentage of
the outstanding securities; (iii) failure by the issuer and/or one or more of
its subsidiaries to make any required payment of principal (and premium, if any)
or interest with respect to other material outstanding debt obligations or the
acceleration by or on behalf of the holders of such securities; and (iv) certain
events of bankruptcy or insolvency with respect to the issuer and/or one or more
of its subsidiaries.
Remedies. Indentures generally provide that upon the occurrence of an
event of default, the indenture trustee may, and upon the written request of the
holders of not less than a specified percentage of the outstanding securities
the indenture trustee must, take such action as it may deem appropriate to
protect and enforce the rights of the security holders. Certain indentures
provide that the indenture trustee or a specified percentage of the holders of
the outstanding securities have the right to declare all or a portion of the
principal and accrued interest on the outstanding securities immediately due and
payable upon the occurrence of certain events of default, subject to the
issuer's right to cure, if applicable. Generally, an indenture will contain a
provision entitling the trustee thereunder to be indemnified by the security
holders prior to proceeding to exercise any right or power under such indenture
with respect to such securities at the request of such security holders. An
indenture is also likely to limit a security holder's right to institute certain
actions or proceedings to pursue any remedy under the indenture unless certain
conditions are satisfied, including obtaining the consent of the indenture
trustee, that the proceeding be brought for the ratable benefit of all holders
of the security and/or that the indenture trustee, after being requested to
institute a proceeding by the owners of at least a specified minimum percentage
of the securities, shall have refused or neglected to comply with such request
within a reasonable time.
Each Indenture may include some, all or none of the foregoing
provisions or variations thereof, together with additional events of default
and/or remedies not discussed herein. The Prospectus Supplement for any Series
of Trust Certificates will describe the events of default under the Indenture
for any Concentrated Underlying Security and the applicable remedies. The
Prospectus Supplement for any Trust consisting of a pool of Underlying
Securities will describe certain common Underlying Security events of default
with respect to such pool. There can be no assurance that any such provision
will protect the Trust, as a holder of the Underlying Securities, against
losses. Furthermore, a Trust Certificateholder will have no independent legal
right to exercise any remedies with respect to the Underlying Securities and
will be required to rely on the Trustee of the applicable Trust to pursue any
available remedies on behalf of the relevant Trust Certificateholders in
accordance with the terms of the Trust Agreement. If an Underlying Security
Event of Default occurs and the Trustee as a holder of the Underlying Securities
is entitled to vote or take such other action to declare the principal amount of
an Underlying Security and
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any accrued and unpaid interest thereon to be due and payable, the Trust
Certificateholders' objectives may differ from those of holders of other
securities of the same Series and Class as any Underlying Security in
determining whether to require the acceleration of the Underlying Securities.
See "Risk Factors--Limitation on Remedies Due to Passive Nature of the Trust".
Subordination. If specified in the applicable Prospectus Supplement,
certain of the Underlying Securities with respect to any Trust may be either
senior ("Senior Underlying Securities") or subordinated ("Subordinated
Underlying Securities") in right to payment to other existing or future
indebtedness of the Underlying Securities Issuer. With respect to Subordinated
Underlying Securities, to the extent of the subordination provisions of such
securities,and after the occurrence of certain events, security holders and
direct creditors whose claims are senior to Subordinated Underlying Securities,
if any, may be entitled to receive payment of the full amount due thereon before
the holders of any subordinated debt securities are entitled to receive payment
on account of the principal (and premium, if any) or any interest on such
securities. Consequently, the Trust as a holder of subordinated debt may suffer
a greater loss than if it held unsubordinated debt of the Underlying Securities
Issuer. There can be no assurance, however, that in the event of a bankruptcy or
similar insolvency proceeding the Trust as a holder of Senior Underlying
Securities would receive all payments in respect of such securities even if
holders of subordinated securities receive no amounts in respect of such
securities. Reference is made to the Prospectus Supplement used to offer any
Series of Trust Certificates for a description of any subordination provisions
with respect to any Concentrated Underlying Securities and the percentage of
Senior Underlying Securities and Subordinated Underlying Securities, if any, in
a Trust comprised of a pool of securities.
Secured Obligations. Certain of the Underlying Securities with respect
to any Trust may represent secured obligations of the Underlying Securities
Issuer ("Secured Underlying Securities"). Generally, unless an event of default
shall have occurred, or with respect to certain collateral or as otherwise set
forth in the indenture pursuant to which such securities were issued, an issuer
of secured obligations has the right to remain in possession and retain
exclusive control of the collateral and to collect, invest and dispose of any
income related to the collateral. The indenture pursuant to which any secured
indebtedness is issued may also contain certain provisions for release,
substitution or disposition of collateral under certain circumstances with or
without the consent of the indenture trustee or upon the direction of not less
than a specified percentage of the security holders. The indenture pursuant to
which any secured indebtedness is issued typically will also provide for the
disposition of the collateral upon the occurrence of certain events of default
with respect thereto. In the event of a default in respect of any secured
obligation, security holders may experience a delay in payments on account of
principal (and premium, if any) or any interest on such securities pending the
sale of any collateral and prior to or during such period the related collateral
may decline in value. If proceeds of the sale of collateral following an
indenture event of default are insufficient to repay all amounts due in respect
of any secured obligations, the holders of such securities (to the extent not
repaid from the proceeds of the sale of the collateral) would have only an
unsecured claim ranking pari passu with the claims of all other general
unsecured creditors.
The Indenture with respect to Secured Underlying Securities may include
some, all or none of the foregoing provisions or variations thereof. The
Prospectus Supplement used to offer any Series of Trust Certificates that
includes Concentrated Underlying Securities which are Secured Underlying
Securities will describe the material security provisions of such Underlying
Securities and the related collateral. With respect to any Trust composed of a
pool of securities, a substantial portion of which are Secured Underlying
Securities, the applicable Prospectus Supplement will disclose certain material
information with respect to such security provisions and the collateral.
Principal Terms of Underlying Securities
Reference is made to the applicable Prospectus Supplement for each
Series of Trust Certificates for a description of the following terms, as
applicable, of any Concentrated Underlying Security: (i) the title and series of
such Underlying Securities, and the aggregate principal amount, denomination and
form thereof; (ii) whether such securities are senior or subordinated to any
other existing or future obligations of the Underlying Securities Issuer; (iii)
whether any of the obligations are secured and the nature of any collateral;
(iv) the limit, if any, upon the aggregate principal amount of such securities;
(v) the dates on which, or the range of dates within which, the principal of
(and premium, if any, on) such securities will be payable; (vi) the rate or
rates, or the method of determination thereof, at which such Underlying
Securities will bear interest, if any ("Underlying Securities Rate");
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the date or dates from which such interest will accrue; and the dates on which
such interest will be payable; (vii) the obligation, if any, of the Underlying
Securities Issuer to redeem such Underlying Securities and other securities of
the same Class or Series pursuant to any sinking fund or similar provisions, or
at the option of a holder thereof, and the periods within which or the dates on
which, the prices at which and the terms and conditions upon which such
securities may be redeemed or repurchased, in whole or in part, pursuant to such
obligation; (viii) the periods within which or the dates on which, the prices at
which and the terms and conditions upon which such securities may be redeemed,
if any, in whole or in part, at the option of the Underlying Securities Issuer;
(ix) the periods within which or the dates on which, the prices at which and the
terms and conditions upon which the holder of the Underlying Securities may
require the issuer of the Puttable Underlying Securities to repurchase or
otherwise repay such Puttable Underlying Securities; (x) whether the Underlying
Securities were issued at a price lower than the principal amount thereof; (xi)
if other than U.S. dollars, the currency in which such securities are
denominated, or in which payment of the principal of (and premium, if any) or
any interest on such Underlying Securities will be made, and the circumstances,
if any, when such currency of payment may be changed; (xii) material events of
default or restrictive covenants provided for with respect to such Underlying
Securities; (xiii) the rating thereof, if any; (xv) the principal United States
market on which the Underlying Securities are traded, if any; and (xiv) any
other material terms of such Underlying Securities.
With respect to a Trust comprised of a pool of Underlying Securities,
the applicable Prospectus Supplement will describe the composition of the
Underlying Securities pool as of the Cut-off Date, certain material events of
default or restrictive covenants common to the Underlying Securities, and, on an
aggregate, percentage or weighted average basis, as applicable, the
characteristics of the pool with respect to the terms set forth in subclauses
(ii), (iii), (v), (vi), (vii), (viii), (ix), (x) and (xi) of the preceding
paragraph and any other material terms regarding such pool of securities.
Other than publicly traded debt securities which satisfy the necessary
requirements set forth herein for Underlying Securities, the Underlying
Securities may consist of, or be similar in structure to, Trust Originated
Preferred Securities ("TOPrS(sm)") in respect of eligible corporations or
general or limited partnerships. (Trust Originated Preferred Securities and
TOPrS(sm) are service marks of Merrill Lynch & Co.)
If an issuer of Concentrated Underlying Securities ceases to file
periodic reports under the Exchange Act, the Depositor will continue to be
subject to the reporting requirements of the Exchange Act but certain
information with respect to such issuer may be unavailable. In such cases, the
Trustee of the relevant Trust will exercise one of the following remedies: (i)
sell all of such Concentrated Underlying Securities and distribute the proceeds
from such sale to the Trust Certificateholders in accordance with the Allocation
Ratio (any such sale will result in a loss to the Trust Certificateholders of
the relevant Series if the sale price is less than the purchase price for such
Concentrated Underlying Securities), (ii) distribute such Concentrated
Underlying Securities in accordance with the Allocation Ratio, or (iii) elect
either (i) or (ii) based upon a majority of votes cast by the affected Trust
Certificateholders. The applicable Prospectus Supplement will specify which of
these two remedies must be exercised by the Trustee, and the Trustee, the
Depositor and the Trust Certificateholders will have no discretion in this
respect.
Credit Support
As specified in the applicable Prospectus Supplement for a given Series
of Trust Certificates, the Trust for any Series of Trust Certificates may
include, or the Trust Certificateholders of such Series (or any Class or group
of Classes within such Series) may have the benefit of, Credit Support for any
Class or group of Classes within such Series. Credit Support directly benefits
the relevant Trust and thereby benefits Trust Certificateholders. Such Credit
Support may be provided by any combination of the following means described
below or any other means described in the applicable Prospectus Supplement. The
applicable Prospectus Supplement will set forth whether the Trust for any Class
or Classes of Trust Certificates contains, or the Trust Certificateholders of
such Trust Certificates have the benefit of, Credit Support and, if so, the
amount, type and other relevant terms of each element of Credit Support with
respect to any such Class or Classes and certain information with respect to the
obligors of each such element, including financial information with respect to
any such obligor providing Credit Support for 20% or more of the aggregate
principal amount of such Class or Classes.
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Subordination. As discussed below under "--Collections", the rights of
the Trust Certificateholders of any given Class within a Series of Trust
Certificates to receive collections from the Trust for such Series and any
Credit Support obtained for the benefit of the Trust Certificateholders of such
Series (or Classes within such Series) may be subordinated to the rights of the
Trust Certificateholders of one or more other Classes of such Series to the
extent described in the applicable Prospectus Supplement. Such subordination
accordingly provides some additional Credit Support to those Trust
Certificateholders of those other Classes. For example, if losses are realized
during a given period on the Deposited Assets relating to a Series of Trust
Certificates such that the collections received thereon are insufficient to make
all distributions on the Trust Certificates of such Series, those Realized
Losses would be allocated to the Trust Certificateholders of any Class of any
such Series that is subordinated to another Class, to the extent and in the
manner provided in the applicable Prospectus Supplement. In addition, if so
provided in the applicable Prospectus Supplement, certain amounts otherwise
payable to Trust Certificateholders of any Class that is subordinated to another
Class may be required to be deposited into a Reserve Account.
If so provided in the applicable Prospectus Supplement, the Credit
Support for any Series or Class of Trust Certificates may also include other
forms of Credit Support, described below. Any such other forms of Credit Support
that are solely for the benefit of a given Class will be limited to the extent
necessary to make required distributions to the Trust Certificateholders of such
Class or as otherwise specified in the applicable Prospectus Supplement. In
addition, if so provided in the applicable Prospectus Supplement, the obligor of
any other forms of Credit Support may be reimbursed for amounts paid pursuant to
such Credit Support out of amounts otherwise payable to one or more of the
Classes of the Trust Certificates of such Series. Further, payments to be made
in respect of any forms of Credit Support arranged for on behalf of the Trust
Certificateholders may be required to be paid prior to any distributions that
must be made to Trust Certificateholders.
Letter of Credit; Surety Bond. The Trust Certificateholders of any
Series (or Class or group of Classes of Trust Certificates within such Series)
may, if specified in the applicable Prospectus Supplement, have the benefit of a
letter or letters of credit (a "Letter of Credit") issued by a bank (a "Letter
of Credit Bank") or a surety bond or bonds (a "Surety Bond") issued by a surety
company (a "Surety"). In either case, the Trustee or such other person specified
in the applicable Prospectus Supplement will use its reasonable efforts to cause
the Letter of Credit or the Surety Bond, as the case may be, to be obtained, to
be kept in full force and effect (unless coverage thereunder has been exhausted
through payment of claims) and to pay timely the fees or premiums therefor
unless, as described in the applicable Prospectus Supplement, the payment of
such fees or premiums is otherwise provided for. The Trustee or such other
person specified in the applicable Prospectus Supplement will make or cause to
be made draws under the Letter of Credit or the Surety Bond, as the case may be,
under the circumstances and to cover the amounts specified in the applicable
Prospectus Supplement. Any amounts otherwise available under the Letter of
Credit or the Surety Bond will be reduced to the extent of any prior
unreimbursed draws thereunder. The applicable Prospectus Supplement will provide
the manner, priority and source of funds by which any such draws are to be
repaid.
Unless otherwise specified in the applicable Prospectus Supplement, if
the Letter of Credit Bank or the Surety, as applicable, ceases to satisfy any
credit rating or other applicable requirements specified in the applicable
Prospectus Supplement, the Trustee or such other person specified in the
applicable Prospectus Supplement will use its reasonable efforts to obtain or
cause to be obtained a substitute Letter of Credit or Surety Bond, as
applicable, or other form of credit enhancement providing similar protection,
that meets such requirements and provides the same coverage to the extent
available for the same cost. There can be no assurance that any Letter of Credit
Bank or any Surety, as applicable, will continue to satisfy such requirements or
that any such substitute Letter of Credit, Surety Bond or similar credit
enhancement will be available providing equivalent coverage for the same cost.
To the extent not so available, the Credit Support otherwise provided by the
Letter of Credit or the Surety Bond (or similar credit enhancement) may be
reduced to the level otherwise available for the same cost as the original
Letter of Credit or Surety Bond.
Reserve Accounts. If so provided in the applicable Prospectus
Supplement, the Trustee or such other person specified in the Prospectus
Supplement will deposit or cause to be deposited into an account maintained with
an eligible institution (which may be the Trustee) (a "Reserve Account") any
combination of cash or permitted investments in specified amounts, which will be
applied and maintained in the manner and under the conditions specified in such
Prospectus Supplement. In the alternative or in addition to such deposit, a
Reserve Account may
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be funded through application of a portion of collections received on the
Deposited Assets for a given Series of Trust Certificates, in the manner and
priority specified in the applicable Prospectus Supplement. Amounts may be
distributed to Trust Certificateholders of such Class or group of Classes within
such Series, or may be used for other purposes, in the manner and to the extent
provided in the applicable Prospectus Supplement. Amounts deposited in any
Reserve Account will be invested in certain permitted investments by, or at the
direction of, the Trustee, the Depositor or such other person as may be
specified in the applicable Prospectus Supplement.
Collections
The Trust Agreement will establish procedures by which the Trustee or
such other person as may be specified in the Prospectus Supplement is obligated,
for the benefit of the Trust Certificateholders of each Series of Trust
Certificates, to administer the related Deposited Assets, including making
collections of all payments made thereon, depositing from time to time prior to
any applicable Distribution Date such collections into a segregated trust
account maintained or controlled by the applicable Trustee for the benefit of
such Series (each a "Trust Certificate Account"). An Administrative Agent, if
any is appointed, will direct the Trustee, and otherwise the Trustee will make
all determinations, as to the appropriate application of such collections and
other amounts available for distribution to the payment of any administrative or
collection expenses (such as the administrative fee) and certain Credit
Support-related ongoing fees (such as insurance premiums, letter of credit fees
or any required account deposits) and to the payment of amounts then due and
owing on the Trust Certificates of such Series (and Classes within such Series),
all in the manner and priorities described in the applicable Prospectus
Supplement. The applicable Prospectus Supplement will specify the collection
periods, if applicable, and Distribution Dates for a given Series of Trust
Certificates and the particular requirements relating to the segregation and
investment of collections received on the Deposited Assets during a given
collection period or on or by certain specified dates. There can be no assurance
that amounts received from the Deposited Assets and any Credit Support obtained
for the benefit of Trust Certificateholders for a particular Series or Class of
Trust Certificates over a specified period will be sufficient, after payment of
all prior expenses and fees for such period, to pay amounts then due and owing
to holders of such Trust Certificates. The applicable Prospectus Supplement will
also set forth the manner and priority by which any Realized Loss will be
allocated among the Classes of any Series of Trust Certificates, if applicable.
The relative priorities of distributions with respect to collections
from the assets of the Trust assigned to Classes of a given Series of Trust
Certificates may permanently or temporarily change over time upon the occurrence
of certain circumstances specified in the applicable Prospectus Supplement.
Moreover, the applicable Prospectus Supplement may specify that the Allocation
Ratio in respect of each Class of a given Series for purposes of payments of
certain amounts, such as principal, may be different from the Allocation Ratio
assigned to each such Class for payments of other amounts, such as interest or
premium.
DESCRIPTION OF THE TRUST AGREEMENT
General. The following summary of material provisions of the Trust
Agreement does not purport to be complete, and such summary is qualified in its
entirety by reference to the detailed provisions of the form of Trust Agreement
filed as an exhibit to the Registration Statement. Wherever particular sections
or defined terms of the Standard Terms are referred to, such sections or defined
terms are incorporated herein by reference as part of the statement made, and
the statement is qualified in its entirety by such reference.
Assignment of Deposited Assets
At the time any Series of Trust Certificates is issued, the Depositor
will cause the Underlying Securities and the Deposited Assets specified in the
Prospectus Supplement, if any, to be assigned and delivered to the Trustee to be
deposited in the related Trust, together with all principal, premium (if any)
and interest received by or on behalf of the Depositor on or with respect to
such Underlying Securities and other Deposited Assets after the cut-off date
specified in the Prospectus Supplement (the "Cut-off Date"), other than
principal, premium (if any) and interest due on or before the Cut-off Date and
other than any Retained Interest. Concurrently with such assignment, the
Depositor will execute, and the Trustee will authenticate and deliver, the Trust
Certificates to the Depositor in exchange for the Underlying Securities and
other Deposited Assets, if any. Each Deposited Asset will be identified
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in a schedule to the Trust Agreement. Such schedule will include certain summary
identifying information with respect to each Underlying Security and each other
Deposited Asset as of the Cut-off Date. Such schedule will include, to the
extent applicable, information regarding the payment terms of any Concentrated
Underlying Security, the Retained Interest, if any, with respect thereto, the
maturity or terms thereof, the rating, if any, thereof and any other material
information with respect thereto.
In addition, the Depositor will, with respect to each Deposited Asset,
deliver or cause to be delivered to the Trustee (or to the custodian hereinafter
referred to) all documents necessary to transfer ownership of such Deposited
Asset to the Trustee. The Trustee (or such custodian) will hold such documents
in trust for the benefit of the Trust Certificateholders.
The Depositor will make certain representations and warranties
regarding its authority to enter into, and its ability to perform its
obligations under, the Trust Agreement. Upon a breach of any such representation
of the Depositor which materially and adversely affects the interests of the
Trust Certificateholders, the Depositor will be obligated to cure the breach in
all material respects.
Collection and Other Administrative Procedures
General. With respect to any Series of Trust Certificates, the Trustee
or such other person specified in the Prospectus Supplement, directly or through
administrative agents, will establish and maintain certain accounts for the
benefit of the holders of the relevant Trust Certificates and will deposit in
such accounts all amounts received by it in respect of the Deposited Assets. The
Trustee on behalf of the Trust may direct any depository institution maintaining
such accounts to invest the funds in such accounts in one or more Eligible
Investments (as defined in the Trust Agreement) bearing interest or sold at a
discount. Any earnings with respect to such investments will be paid to, and any
losses with respect to such investments will be solely for the account of, the
Trust Certificateholders (and, if applicable, the holder of the Retained
Interest) in accordance with the Allocation Ratio. Further, the Trustee or such
other person specified in the Prospectus Supplement, will make reasonable
efforts to collect all scheduled payments under the Deposited Assets and will
follow or cause to be followed such collection procedures, if any, as it would
follow with respect to comparable financial assets that it held for its own
account, provided that such procedures are consistent with the Trust Agreement
and any related instrument governing any Credit Support and provided further
that, except as otherwise expressly set forth in the applicable Prospectus
Supplement, it shall not be required to expend or risk its own funds or
otherwise incur personal financial liability.
Realization upon Defaulted Deposited Assets. The Trustee, as
administrator with respect to the Deposited Assets, on behalf of the Trust
Certificateholders of a given Series (or any Class or Classes within such
Series), will present claims under each applicable Credit Support instrument and
will take such reasonable steps as are necessary to receive payment or to permit
recovery thereunder with respect to defaulted Deposited Assets. As set forth
above, all collections by or on behalf of the Trustee under any Credit Support
instrument are to be deposited in the Trust Certificate Account for the related
Trust, subject to withdrawal as described above.
The Trustee will be obligated to follow or cause to be followed such
normal practices and procedures as it deems necessary or advisable to realize
upon any defaulted Deposited Asset; provided that, the Trustee will be required
to expend or risk its own funds or otherwise incur financial liability if and
only to the extent specified in the applicable Prospectus Supplement. If the
proceeds of any liquidation of the defaulted Deposited Asset are less than the
sum of (i) the outstanding principal balance of the defaulted Deposited Asset,
(ii) interest accrued but unpaid thereon at the applicable interest rate and
(iii) the aggregate amount of expenses incurred by the Trustee in connection
with such proceedings to the extent reimbursable from the assets of the Trust
under the Trust Agreement, the Trust for the applicable Series will realize a
loss in the amount of such difference. To the extent provided in the applicable
Prospectus Supplement, the Trustee will be entitled to withdraw or cause to be
withdrawn from the related Trust Certificate Account out of the net proceeds
recovered on any defaulted Deposited Asset, prior to the distribution of such
proceeds to Trust Certificateholders, amounts representing its normal
administrative compensation on the Deposited Asset, unreimbursed administrative
expenses incurred with respect to the Deposited Asset and any unreimbursed
advances of delinquent payments made with respect to the Deposited Asset.
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Retained Interest
The Prospectus Supplement for a Series of Trust Certificates will
specify whether there will be any Retained Interest in the Deposited Assets,
and, if so, the owner thereof. If so provided, the Retained Interest will be
established on an asset-by-asset basis and will be specified in an exhibit to
the applicable Series Supplement. A Retained Interest in a Deposited Asset
represents a specified ownership interest therein and a right to a portion of
the payments thereon. Payments in respect of the Retained Interest will be
deducted from payments on the Deposited Assets as received and, in general, will
not be deposited in the applicable Trust Certificate Account or become a part of
the related Trust. After the Trustee deducts all applicable fees (as provided
for in the Trust Agreement) from any partial recovery on an Underlying Security,
the Trustee will allocate any such partial recovery between the holder of the
Retained Interest (if any) and the Trust Certificateholders of the applicable
Series.
Advances in Respect of Delinquencies
Unless otherwise specified in the applicable Prospectus Supplement, the
Trustee will have no obligation to make any advances with respect to collections
on the Deposited Assets or in favor of the Trust Certificateholders of the
related Series of Trust Certificates. However, to the extent provided in the
applicable Prospectus Supplement, the Trustee will advance on or before each
Distribution Date its own funds or funds held in the Trust Certificate Account
for such Series that are not part of the funds available for distribution for
such Distribution Date, in an amount equal to the aggregate of payments of
principal, premium (if any) and interest (net of related fees and any Retained
Interest) with respect to the Deposited Assets that were due during the related
Collection Period and were delinquent on the related Record Date, subject to (i)
the Trustee's good faith determination that such advances will be reimbursable
from Related Proceeds (as defined below) and (ii) such other conditions as may
be specified in the Prospectus Supplement.
Advances are intended to maintain a regular flow of scheduled interest,
premium (if any) and principal payments to holders of the Class or Classes of
Trust Certificates entitled thereto, rather than to guarantee or insure against
losses. Unless otherwise provided in the applicable Prospectus Supplement,
advances of the Trustee's funds, if any, will be reimbursable only out of
related recoveries on the Deposited Assets (and amounts received under any form
of Credit Support) for such Series with respect to which such advances were made
(as to any Deposited Assets, "Related Proceeds"); provided, however, that any
such advance will be reimbursable from any amounts in the Trust Certificate
Accounts for such Series to the extent that the Trustee shall determine, in its
sole judgment, that such advance is not ultimately recoverable from Related
Proceeds. If advances have been made by the Trustee from excess funds in the
Trust Certificate Account for any Series, the Trustee will replace such funds in
such Trust Certificate Account on any future Distribution Date to the extent
that funds in such Trust Certificate Account on such Distribution date are less
than payments required to be made to Trust Certificateholders on such date. If
so specified in the applicable Prospectus Supplement, the obligations, if any,
of the Trustee to make advances may be secured by a cash advance reserve fund or
a surety bond. If applicable, information regarding the characteristics of, and
the identity of any obligor on, any such surety bond will be set forth in the
applicable Prospectus Supplement.
Certain Matters Regarding the Trustee, the Administrative Agent, and the
Depositor
The Trustee may enter into agreements ("Administration Agreements")
with one or more Administrative Agents in order to delegate certain of its
administrative obligations with respect to a related Series under the Trust
Agreement; provided, however, that (i) such delegation shall not release the
Trustee from the duties, obligations, responsibilities or liabilities arising
under the Trust Agreement; (ii) such Administrative Agreement shall not affect
the rating of any Class of Trust Certificates of such Series; (iii) such
agreements must be consistent with the terms of the Trust Agreement, (iv) the
Trustee will remain solely liable for all fees and expenses it may owe to such
Administrative Agent; (v) the Administrative Agent shall give representations
and warranties in such Administration Agreement which are the same in substance
as those required of the Trustee; and (vi) such Administrative Agent shall meet
the eligibility requirements of the Trustee pursuant to the Trust Agreement. An
Administrative Agent, if any, for each Series of Trust Certificates under the
Trust Agreement will be named in the applicable Prospectus Supplement. The
entity serving as Administrative Agent for any such Series may be the Trustee,
the Depositor, an affiliate of either thereof, or any third party and may have
other business relationships with the Trustee, the Depositor or their
affiliates. The applicable Prospectus Supplement will specify the Administrative
Agent's
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compensation, if any, and the source, manner and priority of payment thereof,
with respect to a given Series of Trust Certificates.
The Trust Agreement will provide that an Administrative Agent may
resign from its obligations and duties under the Trust Agreement with respect to
any Series of Trust Certificates only if such resignation, and the appointment
of a successor, will not result in a withdrawal or downgrading of the rating of
any Class of Trust Certificates of such Series or upon a determination that its
duties under the Trust Agreement with respect to such Series are no longer
permissible under applicable law. No such resignation will become effective
until the Trustee or a successor has assumed the Administrative Agent's
obligations and duties under the Trust Agreement with respect to such Series.
The Trust Agreement will further provide that neither such
Administrative Agent, the Depositor, the Trustee nor any director, officer,
employee, or agent of the Trustee, the Administrative Agent or the Depositor
will incur any liability to the related Trust or Trust Certificateholders for
any action taken, or for refraining from taking any action, in good faith
pursuant to the Trust Agreement or for errors in judgment; provided, however,
that none of the Trustee, the Administrative Agent, the Depositor nor any such
director, officer, employee or agent will be protected against any liability
that would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties thereunder or by reason of
reckless disregard of obligations and duties thereunder. The Trust Agreement
will further provide that the Trustee, an Administrative Agent, the Depositor
and any director, officer, employee or agent of any of them will be entitled to
indemnification by the related Trust and will be held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
the Trust Agreement or the Trust Certificates, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties thereunder or by reason of reckless disregard of
obligations and duties thereunder. In addition, the Trust Agreement will provide
that the Trustee, an Administrative Agent, and the Depositor are under no
obligation to appear in, prosecute or defend any legal action which is not
incidental to their respective responsibilities under the Trust Agreement or
which in their respective opinions may involve it in any expense or liability.
Each of the Trustee, an Administrative Agent, and the Depositor may, however, in
its discretion undertake any such action which it may deem necessary or
desirable with respect to the Trust Agreement and the rights and duties of the
parties thereto and the interests of the Trust Certificateholders thereunder.
The applicable Prospectus Supplement will describe how such legal expenses and
costs of such action and any liability resulting therefrom will be allocated.
The Trustee, Depositor, and any Administrative Agent shall have no
obligations with respect to the Underlying Securities. The Depositor is not
authorized to proceed against the Underlying Securities Issuer in the event of a
default. Except as expressly provided in the Trust Agreement, the Trustee is not
authorized to proceed against the Underlying Securities Issuer or to assert the
rights and privileges of Trust Certificateholders.
Any person into which the Trustee, the Depositor, or an Administrative
Agent may be merged or consolidated, or any person resulting from any merger of
consolidation to which the Trustee, Depositor, or an Administrative Agent is a
part, or any person succeeding to the business of the Trustee, Depositor, or an
Administrative Agent, will be the successor of the Trustee, Depositor, or such
Administrative Agent (as the case may be) under the Trust Agreement with respect
to the Trust Certificates of a Series.
Administrative Agent Termination Events; Rights upon Administrative Agent
Termination Event
"Administrative Agent Termination Events" under the Trust Agreement
with respect to any given Series of Trust Certificates will consist of the
following: (i) any failure by an Administrative Agent to remit to the Trustee
any funds in respect of collections on the Deposited Assets and Credit Support,
if any, as required under the 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 such Trust Certificates
evidencing 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 its agreement with the Trustee with
respect to such Series which continues unremedied for 30 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 such Trust Certificates evidencing not less
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than 25% of the Voting Rights; and (iii) certain 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 Events with respect to any given Series of
Trust Certificates will be set forth in the applicable Prospectus Supplement. In
addition, the applicable Prospectus Supplement and the related Series Supplement
will specify as to each matter requiring the vote of holders of Trust
Certificates of a Class or group of Classes within a given Series, the
circumstances and manner in which the Required Percentage applicable to each
such matter is calculated. "Required Percentage" means, with respect to any
matter requiring a vote of holders of Trust Certificates of a given Series, the
specified percentage of the aggregate Voting Rights of Trust Certificates of
such Series applicable to such matter. "Voting Rights" are the portion of the
aggregate voting rights of Underlying Securities allocated to Trust
Certificateholders of each Class within a given Series (and to the holder of the
Retained Interest) in direct proportion to the Allocation Ratio, as set forth in
the applicable Prospectus Supplement.
Upon the occurrence of an Administrative Agent Termination Event, the
Trustee may terminate the relevant Administration Agreement and the rights and
obligations of any such Administrative Agent under any Administration Agreement
in accordance with the terms and conditions of any such Administration
Agreement. In the event of a termination of any such Administration Agreement,
the Trustee shall simultaneously reassume direct responsibility for all
obligations delegated in such Administration Agreement without any act or deed
on the part of the applicable Administrative Agent, and the Trustee shall
administer directly the related Underlying Securities or shall enter into an
Administration Agreement with a successor Administrative Agent which so
qualifies under the requirements set forth above. If the Trustee is unwilling or
unable to act, it may appoint, or petition a court of competent jurisdiction for
the appointment of, an Administrative Agent which so qualifies under the
requirements set forth above. Pending such appointment, the Trustee must act in
such capacity (except that if the Trustee is prohibited by law from obligating
itself to make advances regarding delinquent Deposited Assets, then the Trustee
will not be so obligated).
Trustee Compensation and Payment of Expenses
The applicable Prospectus Supplement will specify the Trustee's
compensation, and the source, manner and priority of payment thereof, with
respect to a given Series of Trust Certificates.
The applicable Series Supplement may provide for the payment by the
Depositor of certain Prepaid Ordinary Expenses (as defined below) of the
Trustee. If the Prepaid Ordinary Expenses set forth in the Series Supplement are
greater than zero, the Trustee will be deemed to agree that the payment of such
amount constitutes full and final satisfaction of and payment for all Ordinary
Expenses. If the Prepaid Ordinary Expenses set forth in the Series Supplement
are zero, the Series Supplement may indicate that Ordinary Expenses will be paid
for by the Trust, in which case the Trustee will be paid on a periodic basis by
the Trust or the Retained Interest at the rate or amount and on the terms
provided for in the Series Supplement. The Trustee has agreed, pursuant to the
Trust Agreement, that its right to receive such payments from the Trust will
constitute full and final satisfaction of and payment for all Ordinary Expenses
and that the Trustee will have no claim on payment of Ordinary Expenses from any
other source, including the Depositor. If the Prepaid Ordinary Expenses set
forth in the Series Supplement are zero, the Series Supplement may provide that
the Depositor will pay to the Trustee from time to time a fee for its services
and expenses as trustee as set forth in the Series Supplement payable at the
times set forth therein. The Trustee will agree, pursuant to the Trust
Agreement, that its right to receive such payments from the Depositor will
constitute full and final satisfaction of and payment for all Ordinary Expenses
and that the Trustee will have no claim for payment of Ordinary Expenses from
the Trust. The Trustee has further agreed that, notwithstanding any failure by
the Depositor to make such periodic payments of Ordinary Expenses, the Trustee
will continue to perform its obligations under the Trust Agreement. The
Depositor's obligations to pay Ordinary Expenses under the Trust Agreement will
be extinguished and of no further effect upon he payment of Ordinary Expenses
due and owing on the termination of the Trust pursuant to the terms of the Trust
Agreement.
Subject to the terms of the Trust Agreement, all Extraordinary
Expenses, to the extent not paid by a third party, are obligations of the Trust,
and when due and payable will be satisfied solely by the Trust. "Extraordinary
Expenses" are 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 Trust
Certificateholder, the Trustee or the Depositor pursuant to the Trust Agreement.
"Ordinary Expenses" are defined
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in the Series Supplement and generally will consist of the Trustee's ordinary
expenses and overhead in connection with its services as Trustee, including (i)
the costs and expenses of preparing, sending and receiving all reports,
statements, notices, returns, filings, solicitations of consent or instructions,
or other communications required by the 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 payments of interest or principal, (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. If and to the
extent specified in the applicable Series Supplement, in addition to amounts
payable to any Administrative Agent, the Trustee will pay from its compensation
certain expenses incurred in connection with its administration of the Deposited
Assets, including, without limitation, payment of the fees and disbursements of
the Trustee, if applicable, and independent accountants, payment of expenses
incurred in connection with distributions and reports to Trust
Certificateholders, and payment of any other expenses described in the
applicable Prospectus Supplement.
The Trustee will not take any action, including appearing in,
instituting or conducting any action or suit under the Trust Agreement or in
relation thereto which is not indemnifiable under the Trust Agreement which, in
the Trustee's opinion, would or might cause it to incur costs, expenses or
liabilities that are Extraordinary Expenses unless (i) the Trustee is satisfied
that it will have adequate security or indemnity in respect of such costs,
expenses and liabilities, (ii) the Trustee has been instructed to do so by Trust
Certificate holders representing not less than the Required Percentage-Remedies,
and (iii) the Trust Certificate holders, pursuant to the instructions given
under clause (ii) above, have agreed that such costs, expenses or liabilities
will either be (x) paid by the Trustee from the Trust, in the case of a vote of
100% of the aggregate principal amount of Trust Certificates then outstanding,
or (y) paid by the Trustee (which payment will be made out of its own funds and
not from monies on deposit in the Trust), in which case the Trustee will be
entitled to receive, upon demand, reimbursement from those Trust
Certificateholders who have agreed to bear the entire amount of such costs,
expenses or liabilities on a pro rata basis among such Trust Certificateholders.
Optional Exchange
The terms and conditions, if any, upon which Trust Certificates of any
Series may be exchanged for a pro rata portion of the Deposited Assets of the
related Trust will be specified in the related Series Supplement; provided that
any such Optional Exchange Right will be exercisable only to the extent that the
Depositor provides upon the Trustee's request an opinion of counsel that (i)
such exchange would not be inconsistent with continued satisfaction of the
applicable requirements under the Investment Company Act of 1940, as amended,
and (ii) such exchange would not affect the characterization of the Trust as a
"grantor trust" under the Code; and provided further, that no Trust Certificate
may be exchanged unless the Trustee has received at least 30 days' but not more
than 45 days' notice prior to an Optional Exchange Date (as defined in the
Supplement), as more particularly described in the Trust Agreement.
Any tender of a Trust Certificate by the holder thereof for exchange
will be irrevocable. Unless otherwise provided in the applicable Series
Supplement, the Optional Exchange Right may be exercised by the holder of a
Trust Certificate for less than the aggregate principal amount of such Trust
Certificate as long as the aggregate principal amount outstanding after such
exchange is a multiple of the minimum denomination of such Trust Certificate and
all other exchange requirements set forth in the related Series Supplement are
satisfied. Upon such partial exchange, such Trust Certificate will be cancelled
and a new Trust Certificate or Trust Certificates for the remaining principal
amount of the Trust Certificate will be issued (which, in the case of any Trust
Certificate issued in registered form, will be in the name of the holder of such
exchanged Trust Certificate).
Voting Rights with Respect to Underlying Securities
Within five Business Days after receipt of notice of any meeting of, or
other occasion for the exercise of Voting Rights or the giving of consents by,
owners of any of the Underlying Securities, the Trustee will give notice to the
Trust Certificateholders, setting forth (i) such information as is contained in
such notice to owners of Underlying Securities, (ii) a statement that the Trust
Certificateholders will be entitled, subject to any applicable
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provision of law and any applicable provisions of such Underlying Securities, to
instruct the Trustee as to the exercise of Voting Rights, if any, pertaining to
such Underlying Securities and (iii) a statement as to the manner in which
instructions may be given to the Trustee to give a discretionary proxy to a
person designated in the notice received by the Trustee. The Trustee will give
such notice to the Trust Certificateholders of record on the relevant record
date.
Upon the written request of the applicable Trust Certificateholder,
received on or before the date established by the Trustee for such purpose, the
Trustee will endeavor, insofar as practicable and permitted under any applicable
provision of law and any applicable provision of or governing the Underlying
Securities, to vote in accordance with any nondiscretionary instruction set
forth in such written request. The Trustee will not vote except as specifically
authorized and directed in written instructions from the applicable Trust
Certificateholder entitled to give such instructions. Notwithstanding the
foregoing, if the Trustee determines (based upon advice furnished by nationally
recognized independent tax counsel, whether at the request of any Trust
Certificateholder or otherwise) that the exercise of voting rights with respect
to any Underlying Securities could result in a "sale or other disposition" of
such Underlying Securities within the meaning of Section 1001(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), the Trustee will exercise such
voting rights in a manner that would not result in any such sale or other
disposition. The Trustee will have no responsibility to make any such
determination.
By accepting delivery of a Trust Certificate, whether upon original
issuance or subsequent transfer, exchange or replacement thereof, and without
regard to whether ownership is beneficial or otherwise, the Trust
Certificateholder agrees so long as it is an owner of such Trust Certificate
that it will not grant any consent (i) to any conversion of the timing of
payment of, or the method or rate of accruing, interest on the Underlying
Securities underlying the Trust Certificates held by such Trust
Certificateholder or (ii) to any redemption or prepayment of the Underlying
Securities underlying the Trust Certificates held by such Trust
Certificateholder. The Trustee will not grant any consent solicited from the
owners of the Underlying Securities underlying the Trust Certificates with
respect to the matters set forth under this section, "Description of the Trust
Agreement--Voting Rights with Respect to Underlying Securities," nor will it
accept or take any action in respect of any consent, proxy or instructions
received from any Trust Certificateholder in contravention of the provisions of
such Section.
Limitations on Rights of Trust Certificateholders
No Trust Certificateholder of a given Series will have the right under
the Trust Agreement to institute any proceeding with respect thereto unless (i)
such Trust Certificateholder previously has given to the Trustee written notice
of a continuing breach, (ii) Trust Certificateholders evidencing not less than
the Required Percentage- Remedies of the aggregate Voting Rights have made
written request upon the Trustee to institute such proceeding in its own name as
Trustee, (iii) such Trust Certificateholder or Trust Certificateholders have
offered the Trustee reasonable indemnity, (iv) the Trustee for 15 days has
failed to institute any such proceeding and (v) no direction inconsistent with
such written request has been given to the Trustee during such 15 day period by
Trust Certificateholders evidencing not less than the Required
Percentage-Remedies of the aggregate Voting Rights. The Trustee, however, is
under no obligation to exercise any of the trusts or powers vested in it by the
Trust Agreement, to make any investigation into the facts of matters arising
under the Trust Agreement or stated in any document believed by it to be
genuine, unless requested in writing to do so by Trust Certificateholders of the
Required Percentage-Direction of Trustee (as defined in the Trust Agreement) or
to institute, conduct or defend any litigation thereunder or in relation thereto
at the request, order or direction of any of the holders of Trust Certificates
covered by the Trust Agreement, unless such Trust Certificateholders have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
Modification and Waiver
Unless otherwise specified in the applicable Prospectus Supplement, the
Trust Agreement may be amended from time to time by the Depositor and the
Trustee without notice to or the consent of any of the Trust Certificateholders
for any of the following purposes: (i) to cure any ambiguity; (ii) to correct or
supplement any provision therein which may be inconsistent with any other
provision therein or in the Prospectus Supplement; (iii) to appoint a change in
Trustee for a Series of Trust Certificates subsequent to the Closing Date (as
defined in the applicable Supplement) for such Series; (iv) to provide for
administration of separate Trusts by more than one
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trustee; (v) to provide for a successor Trustee with respect to Trust
Certificates of one or more Series; (vi) to provide for the issuance of a new
Series of Trust Certificates pursuant to a Supplement; (vii) to add or
supplement any Credit Support for the benefit of any Trust Certificateholders
(provided that if any such addition affects any series or Class of Trust
Certificateholders differently than any other Series or Class of Trust
Certificateholders, then such addition will not, as evidenced by an opinion of
counsel, have a material adverse effect on the interests of any affected Series
or Class of Trust Certificateholders; (viii) to add to the covenants,
restrictions or obligations of the Depositor, the Administrative Agent, if any,
or the Trustee for the benefit of the Trust Certificateholders; (ix) to comply
with any requirements imposed by the Code; or (x) to add, change or eliminate
any other provisions with respect to matters or questions arising under this
Trust Agreement; provided, however, that in the case of any amendment the Rating
Agency Condition shall be satisfied with respect to such amendment and that no
such amendment shall cause any Trust created hereunder to fail to qualify as a
fixed investment trust (or "grantor trust") under the Code.
Without limiting the generality of the foregoing, unless otherwise
specified in the applicable Prospectus Supplement, the Trust Agreement may also
be modified or amended from time to time by the Depositor and the Trustee, with
the consent of the holders of Trust Certificates evidencing the Required
Percentage-Amendment of the aggregate Voting Rights of those Trust Certificates
that are materially adversely affected by such modification or amendment for the
purpose of adding any provision to or changing in any manner or eliminating any
provision of the Trust Agreement or of modifying in any manner the rights of
such Trust Certificateholders; provided, however, that if such modification or
amendment would materially adversely affect the rating of any Series or Class by
each Rating Agency, the Required Percentage specified in the related Series
Supplement shall include an additional specified percentage of the Trust
Certificates of such Series or Class, and provided further, that no such
amendment will (i) reduce in any manner the amount of, or delay the timing of,
payments received on Deposited Assets which are required to be distributed on
any Trust Certificate without the consent of the holders of such Trust
Certificates or (ii) reduce the percentage of aggregate Voting Rights required
to take any action specified in the Trust Agreement, without the consent of the
holders of all Trust Certificates of such Series or Class then Outstanding.
Unless otherwise specified in the applicable Prospectus Supplement,
holders of Trust Certificates evidencing not less than the Required Percentage
to waive the Voting Rights of a given Series may, on behalf of all Trust
Certificateholders of that Series, (i) waive, insofar as that Series is
concerned, compliance by the Depositor or the Trustee with certain restrictive
provisions, if any, of the Trust Agreement before the time for such compliance
and (ii) waive any past default under the Trust Agreement with respect to Trust
Certificates of that Series, except a default in the failure to distribute
amounts received as principal of (and premium, if any) or any interest on any
such Trust Certificate and except a default in respect of a covenant or
provision the modification or amendment of which would require the consent of
the holder of each outstanding Trust Certificate affected thereby.
Reports to Trust Certificateholders; Notices
Reports to Trust Certificateholders. With each distribution to Trust
Certificateholders of a Series, the Trustee will forward or cause to be
forwarded to each such Trust Certificateholder, to the Depositor and to such
other parties as may be specified in the Trust Agreement, a statement setting
forth:
(i) the amounts received by the Trustee as of the last such
statement in respect of principal, interest and premium on the
Underlying Securities and any amounts received by the Trustee with
respect to any derivatives transaction entered into by the Trust
pursuant to the terms of the Trust Agreement;
(ii) any amounts payable by the Trust as of such date pursuant
to any derivatives transaction entered into by the Trust pursuant to
the terms of the Trust Agreement;
(iii) the amount of compensation received by the
Administrative Agent, if any, and the Trustee for the period relating
to such Distribution Date, and such other customary information as the
Administrative Agent, if any, or otherwise the Trustee deems necessary
or desirable (or that such Certificateholder reasonably requests in
writing) to enable Trust Certificateholders to prepare their tax
returns;
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(iv) the amount of the distribution on such Distribution Date
to Trust Certificateholders of each Class of such Series allocable to
principal of and premium, if any, and interest on the Trust
Certificates of each such Class, and the amount of aggregate unpaid
interest accrued as of such Distribution Date;
(v) in the case of Trust Certificates bearing interest on a
floating rate basis, the respective floating rate applicable to such
Trust Certificates on such Distribution Date, as calculated in
accordance with the method specified in such Trust Certificates and the
related Series Supplement;
(vi) if the Series Supplement provides for Advances (as
defined in the Trust Agreement), the aggregate amount of Advances, if
any, included in such distribution, and the aggregate amount of
unreimbursed Advances, if any, at the close of business on such
Distribution Date;
(vii) the aggregate stated principal amount and, if
applicable, Notional Amount of the Underlying Securities related to
such Series, the current interest rate or rates thereon at the close of
business on such Distribution Date and, if such rating has changed
since the last Distribution Date, the current rating assigned thereon
by the applicable Rating Agency;
(viii) the aggregate principal amount (or Notional Amount, if
applicable) of each Class of such Series at the close of business on
such Distribution Date, separately identifying any reduction in such
aggregate principal amount (or Notional Amount) due to the allocation
of certain Realized Losses on such Distribution Date or otherwise, as
provided in the Trust Agreement;
(ix) as to any Series (or Class within such Series) for which
Credit Support has been obtained, the amount or notional amount of
coverage of each element of Credit Support (and rating, if any,
thereof) included therein as of the close of business on such
Distribution Date; and
(x) any other information appropriate for a Series, as
specified in the applicable Prospectus Supplement.
Within a reasonable period of time after the end of each calendar year,
the Trustee will furnish to each person who at any time during the calendar year
was a Trust Certificateholder a statement containing the information set forth
in subclause (iii) above, aggregated for such calendar year during which such
person was a Trust Certificateholder. Such obligation of the Trustee will be
deemed to have been satisfied to the extent that substantially comparable
information is provided by the Trustee pursuant to any requirements of the Code
as are from time to time in effect.
Notices. Any notice required to be given to a holder of a Registered
Trust Certificate will be mailed to the last address of such holder set forth in
the applicable Trust Certificate Register. Any notice so mailed within the time
period prescribed in the Trust Agreement or Series Supplement shall be
conclusively presumed to have been duly given when mailed, whether or not the
Trust Certificateholder receives such notice.
Evidence as to Compliance
The Trust Agreement will provide that commencing on a certain date and
on or before a specified date in each year thereafter, a firm of independent
public accountants will furnish a statement to the Trustee to the effect that
such firm has examined certain documents and records relating to the
administration of the Deposited Assets during the related 12-month period (or,
in the case of the first such report, the period ending on or before the date
specified in the Prospectus Supplement, which date shall not be more than one
year after the related Original Issue Date) and that, on the basis of certain
agreed upon procedures considered appropriate under the circumstances, such firm
is of the opinion that such administration was conducted in compliance with the
terms of the Trust Agreement, except for such exceptions as such firm shall
believe to be immaterial and such other exceptions and qualifications as shall
be set forth in such report.
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The Trust Agreement will also provide for delivery to the Depositor,
the Administrative Agent, if any, and the Trustee on behalf of the Trust
Certificateholders, on or before a specified date in each year, of an annual
statement signed by two officers of the Trustee to the effect that the Trustee
has fulfilled its obligations under the Trust Agreement throughout the preceding
year with respect to any Series of Trust Certificates.
Copies of the annual accountants' statement, if any, and the statement
of officers of the Trustee may be obtained by Trust Certificateholders without
charge upon written request to either the Administrative Agent or the Trustee,
as applicable, at the address set forth in the applicable Prospectus Supplement.
Replacement Trust Certificates
If a mutilated Trust Certificate is surrendered at the corporate trust
office or agency of the Trustee in the City and State of New York or the
Depositor and the Trustee receive satisfactory evidence that such Trust
Certificate has been lost, destroyed or stolen it may be replaced upon payment
by the holder of such expenses as may be incurred by the Trustee in connection
therewith and the furnishing of such security and indemnity as the Trustee and
the Depositor may require to hold each of them and any Paying Agent harmless;
provided that neither the Depositor nor the Trustee has received notice that
such Trust Certificate was acquired by a bona fide purchaser.
Termination
The obligations created by the Trust Agreement for each Series of Trust
Certificates will terminate upon the payment to Trust Certificateholders of that
Series of all amounts held in the related Trust Certificate Account and required
to be paid to them pursuant to the Trust Agreement following final payment or
other liquidation of any remaining Deposited Assets or Credit Support subject
thereto or the disposition of all property acquired upon foreclosure or
liquidation of any such Deposited Assets or Credit Support. In no event,
however, will any Trust created by the Trust Agreement continue beyond the
respective date specified in the applicable Prospectus Supplement, nor will such
Trust continue to exist if its existence would result in a violation of the
common-law Rule Against Perpetuities. Written notice of termination of the
obligations with respect to the related Series of Trust Certificates under the
Trust Agreement will be provided as set forth above under "--Reports to Trust
Certificateholders; Notices", and the final distribution will be made only upon
surrender and cancellation of the Trust Certificates at an office or agency
appointed by the Trustee which will be specified in the notice of termination.
Any such purchase of Deposited Assets or Credit Support and property
acquired in respect of Deposited Assets or Credit Support evidenced by a Series
of Trust Certificates shall be made at a price approximately equal to the
aggregate fair market value of all the assets in the Trust (as determined by the
Trustee, the Administrative Agent, if any, and, if different than both such
persons, the person entitled to effect such termination), in each case taking
into account accrued interest at the applicable interest rate to the first day
of the month following such purchase or, to the extent specified in the
applicable Prospectus Supplement, a specified price as determined therein. The
exercise of such right will effect early retirement of the Trust Certificates of
that Series, but the right of the person entitled to effect such termination is
subject to the aggregate principal balance of the outstanding Deposited Assets
or Credit Support for such Series at the time of purchase being less than the
percentage of the aggregate principal balance of the Deposited Assets or the
Credit Support at the Cut-off Date (as defined in the Trust Agreement) for the
Series specified in the applicable Prospectus Supplement.
Duties of the Trustee
The Trustee makes no representations as to the validity or sufficiency
of the Trust Agreement, the recitals contained therein, the Trust Certificates
of any Series or any Deposited Asset or related document and is not accountable
for the use or application by the Depositor of any of the Trust Certificates or
the Deposited Assets, or the proceeds thereof. The Trustee is required to
perform only those duties specifically required under the Trust Agreement with
respect to such Series. However, upon receipt of the various certificates,
reports or other instruments required to be furnished to it, the Trustee is
required to examine such documents and to determine whether they conform to the
applicable requirements of the Trust Agreement.
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The Trustee
The Trustee for any given Series of Trust Certificates under the Trust
Agreement will be named in the applicable Prospectus Supplement. The commercial
bank, national banking association or trust company serving as Trustee will be
unaffiliated with, but may have banking relationships with or provide financial
services to, the Depositor, any Administrative Agent and their affiliates.
CURRENCY RISKS
An investment in a Trust Certificate having a Specified Currency other
than U.S. dollars entails significant risks that are not associated with a
similar investment in a U.S. dollar-denominated security. Such risks include,
without limitation, the possibility of significant changes in rates of exchange
between the U.S. dollar and such Specified Currency and the possibility of the
imposition or modification of foreign exchange controls with respect to such
Specified Currency. Such risks generally depend on factors over which the
Depositor has no control, such as economic and political events and the supply
of and demand for the relevant currencies. In recent years, rates of exchange
between the U.S. dollar and certain currencies have been highly volatile, and
such volatility may be expected in the future. Past fluctuations in any
particular exchange rate do not necessarily indicate, however, fluctuations in
the rate that may occur during the term of any Trust Certificate. Depreciation
of the Specified Currency for a Trust Certificate against the U.S. dollar would
decrease the effective yield of such Trust Certificate below its Trust
Certificate Rate and, in certain circumstances, could result in a loss to the
investor on a U.S. dollar basis.
Governments have from time to time imposed, and may in the future
impose, exchange controls that could affect exchange rates and the availability
of a Specified Currency for making distributions in respect of Trust
Certificates denominated in such currency. At present, the Depositor has
identified the following currencies in which distributions of principal, premium
and interest on Trust Certificates may be made: Australian dollars, Canadian
dollars, Danish kroner, Italian lire, Japanese yen, New Zealand dollars, U.S.
dollars and ECU. However, Trust Certificates distributable in another Specified
Currency may be issued at any time, based upon investor demand for Trust
Certificates denominated in such currencies. There can be no assurance that
exchange controls will not restrict or prohibit distributions of principal,
premium or interest in any Specified Currency. Even if there are no actual
exchange controls, it is possible that, on a Distribution Date with respect to
any particular Trust Certificate, the currency in which amounts then due to be
distributed in respect of such Trust Certificate would not be available.
PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL
ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN TRUST CERTIFICATES
DENOMINATED IN A CURRENCY OTHER THAN U.S. DOLLARS. SUCH TRUST CERTIFICATES ARE
NOT AN APPROPRIATE INVESTMENT FOR PERSONS WHO ARE UNSOPHISTICATED WITH RESPECT
TO FOREIGN CURRENCY TRANSACTIONS.
Any Prospectus Supplement relating to Trust Certificates having a
Specified Currency other than U.S. dollars will contain historical exchange
rates for such currency against the U.S. dollar, a description of such currency,
any exchange controls affecting such currency and any other required information
concerning such currency. Such Prospectus Supplement will also discuss risk
factors relating to any such Specified Currency.
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FEDERAL INCOME TAX CONSEQUENCES
This summary is based on the Internal Revenue Code of 1986, as amended
to the date hereof (the "Code"), revenue rulings, judicial decisions and
existing and proposed Treasury regulations, including final regulations
concerning the tax treatment of debt instruments issued with original issue
discount (the "OID Regulations"), changes to any of which subsequent to the date
of the Prospectus may affect the tax consequences described herein.
This summary discusses only Trust Certificates held by Trust
Certificateholders as capital assets within the meaning of Section 1221 of the
Code. It does not discuss all of the tax consequences that may be relevant to a
Trust Certificateholder in light of its particular circumstances or to Trust
Certificateholders subject to special rules, such as certain financial
institutions, insurance companies, dealers or Trust Certificateholders holding
the Trust Certificates as part of a hedging transaction or straddle. Further,
the tax consequences arising from the ownership of any Series of Trust
Certificates with special characteristics will be set forth in the applicable
Prospectus Supplement and a legal opinion of tax counsel will be filed with the
Commission in connection with each such Series of Trust Certificates. In such
opinion, tax counsel will opine as to the tax disclosure regarding the Trust
Certificates set forth in this Prospectus and the applicable Prospectus
Supplement.
In all cases, prospective investors are advised to consult their own
tax advisors regarding the federal tax consequences to them of holding, owning
and disposing of Trust Certificates, including the advisability of making any of
the elections described below, as well as any tax consequences arising under the
law of any state or other taxing jurisdiction.
For purposes of this discussion "U.S. Person" means an individual who,
for federal income tax purposes, is a citizen or resident of the United States
or a corporation, partnership or other entity created or organized in or under
the laws of the United States, any state thereof, or an estate that is subject
to U.S. federal income tax regardless of the source of its income, or a trust if
a court within the United States is able to exercise primary supervision of the
administration of the trust and one or more U.S. persons have the authority to
control all substantial decisions of the trust. "U.S. Owner" means a Trust
Certificateholder that is a U.S. Person and "Non-U.S. Owner" means a Trust
Certificateholder that is not a U.S. Person.
Classification of Investment Arrangement
The arrangement pursuant to which the Trust Certificates will be
created and sold and the Underlying Securities will be administered will be
treated as a grantor trust under subpart E, part I of subchapter J of the Code.
Each Trust Certificateholder will be treated as the owner of a pro rata
undivided interest in the ordinary income and corpus of the Underlying
Securities in the grantor trust.
U.S. Owners
In General
Each Trust Certificateholder will be required to report on its federal
income tax return its pro rata share of the entire income from the Underlying
Securities, including gross interest income at the interest rate on the
Underlying Securities, in accordance with its method of accounting.
Original Issue Discount
The Underlying Securities may have originally been sold at a discount
below their principal amount. As provided in the Code and the OID Regulations,
the excess of the "stated redemption price" (as defined below) of each such
Underlying Security over its "issue price" (defined as the initial offering
price to the public, excluding bond houses and brokers, at which a substantial
amount of such Underlying Securities has been sold) will be original issue
discount if such excess equals or exceeds a de minimis amount (i.e., one-quarter
of one percent of such Underlying Security's stated redemption price multiplied
by the number of complete years to its maturity). An Underlying Security having
more than a de minimis amount of original issue discount is referred to herein
as an "OID Underlying Security." A U.S. Owner of an Underlying Security with a
de minimis amount of original issue
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discount will include any de minimis original issue discount in income, as
capital gain, on a pro rata basis as principal payments are made on the
Underlying Security. The "stated redemption price" of an Underlying Security is
equal to the sum of all payments on the Underlying Security other than interest
based on a fixed rate (or a variable rate, unless an applicable Prospectus
Supplement otherwise states) and payable unconditionally at least annually.
U.S. Owners are required to include original issue discount in income
as it accrues, which may be before the receipt of the cash attributable to such
income, based on a compounding of interest at a constant rate (using the yield
to maturity of the Underlying Security as originally issued). Under these rules,
U.S. Owners generally must include in income increasingly greater amounts of
original issue discount in successive accrual periods, unless payments that are
part of the state redemption price at maturity of an Underlying Security are
made before its final maturity. The OID Regulations permit U.S. Owners to use
accrual periods of any length up to one year (including daily accrual periods)
to compute accruals of original issue discount, provided each scheduled payment
of principal or interest occurs either on the first or the last day of an
accrual period.
Acquisition Premium and Market Discount
In the event that a U.S. Owner purchases an OID Underlying Security at
an acquisition premium (i.e., at a price in excess of its "adjusted issue price"
but less than its stated redemption price), the amount includible in income in
each taxable year as original issue discount is reduced by that portion of the
excess properly allocable to such year. The adjusted issue price is defined as
the sum of the issue price of the Underlying Security and the aggregate amount
of previously accrued original issue discount, less any prior payments of
amounts included in its stated redemption price. Unless a U.S. Owner makes the
accrual method election described below, acquisition premium is allocated on a
pro rata basis to each accrual of original issue discount, so that the U.S.
Owner is allowed to reduce each accrual of original issue discount by a constant
fraction.
A U.S. Owner that purchases at a "market discount" (i.e., at a price
less than the stated redemption price or, in the case of an OID Underlying
Security, the adjusted issue price) will be required (unless such difference is
less than a de minimis amount) to treat any principal payments on, or any gain
realized upon the disposition or retirement of, the Underlying Security as
interest income to the extent of the market discount that accrued while such
U.S. Owner held such Underlying Security, unless the U.S. Owner elects to
include such market discount in income on a current basis. Market discount is
considered to be de minimis if it is less than one-quarter of one percent of
such Underlying Security's stated redemption price multiplied by the number of
complete years to maturity after the U.S. Owner acquired the Trust Certificate.
If an Underlying Security with more than a de minimis amount of market discount
is disposed of in a nontaxable transaction (other than a nonrecognition
transaction described in Section 1276(d) of the Code), accrued market discount
will be includible as ordinary income to the U.S. Owner as if such U.S. Owner
had sold the Trust Certificate at its then fair market value. A U.S. Owner that
acquired at a market discount and that does not elect to include market discount
in income on a current basis also may be required to defer the deduction for a
portion of the interest expense on any indebtedness incurred or continued to
purchase or carry the Trust Certificate until the deferred income is realized.
Premium
Except as noted below, a U.S. Owner that purchases for an amount in
excess of the principal amount, or in the case of an OID Underlying Security,
the remaining stated redemption price, will be treated as having premium with
respect to the Underlying Security in the amount of such excess. A U.S. Owner
that purchases an OID Underlying Security at a premium is not required to
include in income any original issue discount with respect to such Underlying
Security. If such a U.S. Owner makes an election under Section 171(c)(2) of the
Code to treat such premium as "amortizable bond premium," the amount of interest
that must be included in such U.S. Owner's income for such accrual period (where
such Underlying Security is not optionally redeemable prior to its maturity
date) will be reduced by the portion of the premium allocable to such period
based on the Underlying Security's yield to maturity. If such Underlying
Security may be called prior to maturity after the U.S. Owner has acquired it,
the U.S. Owner generally may not assume that the call will be exercised and must
amortize premium to the maturity date. If the Underlying Security is in fact
called, any unamortized premium may be deducted in the year
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of the call. If a U.S. Owner makes the election under Section 171(c)(2), the
election also shall apply to all bonds the interest on which is not excludible
from gross income ("Fully Taxable Bonds") held by the U.S. Owner at the
beginning of the first taxable year to which the election applies and to all
such Fully Taxable Bonds thereafter acquired by it, and is irrevocable without
the consent of the IRS. If such an election is not made, such a U.S. Owner must
include the full amount of each interest payment in income in accordance with
its regular method of accounting and will receive a tax benefit from the premium
only in computing its gain or loss upon the sale or other disposition or
retirement of the Underlying Security.
Accrual Method Election
Under the OID Regulations, a U.S. Owner is permitted to elect to
include in gross income its entire return on an Underlying Security (i.e., the
excess of all remaining payments to be received on the Underlying Security over
the amount paid for the Trust Certificate by such U.S. Owner) based on the
compounding of interest at a constant rate. Such an election for an Underlying
Security with amortizable bond premium (or market discount) will result in a
deemed election for all of the U.S. Owner's debt instruments with amortizable
bond premium (or market discount) and may be revoked only with permission of the
IRS.
Disposition or Retirement of Trust Certificates
Upon the sale, exchange or other disposition of a Trust Certificate, or
upon the retirement of a Trust Certificate, a U.S. Owner will recognize gain or
loss equal to the difference, if any, between the amount realized upon the
disposition or retirement and the U.S. Owner's tax basis in the Trust
Certificate. A U.S. Owner's tax basis for determining gain or loss on the
disposition or retirement of a Trust Certificate will be the cost of such Trust
Certificate to such U.S. Owner, increased by the amount of original issue
discount and any market discount includible in such U.S. Owner's gross income
with respect to the Underlying Security, and decreased by the amount of any
payments under the Underlying Security that are part of its stated redemption
price and by the portion of any premium applied to reduce interest payments as
described above.
Gain or loss upon the disposition or retirement of a Trust Certificate
will be capital gain or loss, except to the extent the gain represents accrued
stated interest, original issue or market discount on the Trust Certificate not
previously included in gross income, to which extent such gain or loss would be
treated as ordinary income. Any capital gain or loss will be long-term capital
gain or loss if at the time of disposition or retirement the Trust Certificate
has been held for more than one year.
Non-U.S. Owners
Interest
Interest (including original issue discount) on an Underlying Security
of a Non-U.S. Owner will be subject to a 30 percent federal income and
withholding tax, unless an exemption is established.
Disposition or Retirement of Trust Certificates
A Non-U.S. Owner that does not have certain present or former
connections with the United States (e.g., holding such Non-U.S. Owner's Trust
Certificate in connection with the conduct of a trade or business within the
United States or being present in the United States for 183 days or more during
a taxable year) generally will not be subject to federal income tax, and no
withholding of such tax will be required, with respect to any gain realized upon
the disposition or retirement of a Trust Certificate.
Information Reporting and Backup Withholding
Payments made on the Underlying Securities and proceeds from the sale
of the Trust Certificates will not be subject to a "backup" withholding tax of
31 percent unless, in general, the Trust Certificateholder fails to comply with
certain reporting procedures and is not an exempt recipient under applicable
provisions of the Code.
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THE FEDERAL TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A TRUST
CERTIFICATEHOLDER'S PARTICULAR SITUATION. TRUST CERTIFICATEHOLDERS SHOULD
CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF
THE OWNERSHIP AND DISPOSITION OF THE TRUST CERTIFICATES, INCLUDING THE TAX
CONSEQUENCES UNDER THE TAX LAWS OF THE UNITED STATES, STATES, LOCALITIES,
COUNTRIES OTHER THAN THE UNITED STATES AND ANY OTHER TAXING JURISDICTIONS AND
THE POSSIBLE EFFECTS OF CHANGES IN SUCH TAX LAWS.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the Code impose certain requirements on (a) an employee benefit
plan (as defined in Section 3(3) of ERISA), (b) a plan described in Section
4975(e)(i) of the Code or (c) any entity whose underlying assets include Plan
Assets (as defined below) by reason of a plan's investment in the entity (each,
a "Plan").
In accordance with ERISA's general fiduciary standards, before
investing in a Trust Certificate, a Plan fiduciary should determine whether such
an investment is permitted under the governing Plan instruments and appropriate
for the Plan in view of the Plan's overall investment policy and the composition
and diversification of its portfolio. Other provisions of ERISA and the Code
prohibit certain transactions involving the assets of a Plan and persons who
have certain specified relationships to the Plan ("Parties in Interest" within
the meaning of ERISA or "Disqualified Persons" within the meaning of the Code).
Thus, a Plan fiduciary considering an investment in Trust Certificates should
also consider whether such an investment might constitute or give rise to a
prohibited transaction under ERISA or the Code.
An investment in Trust Certificates by a Plan might result in the
assets of the Trust being deemed to constitute Plan Assets, which in turn might
mean that certain aspects of such investment, including the operation of the
Trust, might be prohibited transactions under ERISA and the Code. Neither ERISA
nor the Code defines the term "Plan Assets". Under Section 2510.3-101 of the
United States Department of Labor regulations (the "Regulation"), "Plan Assets"
may include an interest in the underlying assets of an entity (such as a trust)
for certain purposes, including the prohibited transaction provisions of ERISA
and the Code, if the Plan acquires an "equity interest" in such entity. Thus, if
a Plan acquired a Trust Certificate, for certain purposes under ERISA and the
Code (including the prohibited transaction provisions) the Plan would be
considered to own its share of the underlying assets of the Trust unless (1)
such Trust Certificate is a "publicly-offered security" or (2) equity
participation by "benefit plan investors" is not "significant".
Under the Regulation, a publicly offered security is a security that is
(1) freely transferable, (2) part of a class of securities that is owned by 100
or more investors independent of the issuer and of one another at the conclusion
of the initial offering and (3) either is (A) part of a class of securities
registered under Section 12(b) or 12(g) of the Exchange Act or (B) sold to the
Plan as part of an offering of securities to the public pursuant to an effective
registration statement under the Securities Act and the class of securities of
which such security is a part is registered under the Exchange Act within 120
days (or such later time as may be allowed by the Commission) after the end of
the fiscal year of the issuer during which the offering of such securities to
the public occurred.
Participation by benefit plan investors in the Trust Certificates would
not be significant if immediately after the most recent acquisition of a Trust
Certificate, whether or not from the Depositor or Merrill Lynch & Co., less than
25% of (1) the value of such Class of Trust Certificates and (2) the value of
any other Class of Trust Certificates that is not a publicly-offered security
under the Regulation, were held by benefit plan investors, which are defined as
Plans and employee benefit plans not subject to ERISA (for example, governmental
plans).
It is anticipated that certain offerings of Trust Certificates will be
structured so that assets of the Trust will not be deemed to constitute Plan
Assets. In such cases, the relevant Prospectus Supplement will indicate either
that the Trust Certificates will be considered publicly offered securities under
the Regulation or that participation by benefit plan investors will not be
significant for purposes of the Regulation.
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In other instances, however, the offering of Trust Certificates may not
be so structured. Thus, the assets of the Trust may be deemed to be Plan Assets
and transactions involving the Depositor, an underwriter, the Trustee, any
trustee with respect to Underlying Securities, any obligors with respect to
Underlying Securities or affiliates of such obligors might constitute prohibited
transactions with respect to a Plan holding a Trust Certificate unless (i) one
or more prohibited transaction exemptions ("PTEs") applies or (ii) in the case
of an issuer of Underlying Securities, it is not a Disqualified Person or party
in interest with respect to such Plan. Plans maintained or contributed to by the
Depositor, an underwriter, the Trustee, a trustee with respect to Underlying
Securities, any issuer of underlying securities, or any of their affiliates,
should not acquire or hold any Trust Certificate.
If the Trust is deemed to hold Plan Assets, the Underlying
Securities would appear to be an indirect loan between the issuer of the
Underlying Securities and any Plan owning Trust Certificates; however, such
loan, by itself, would not constitute prohibited transaction unless such issuer
is a party in interest or Disqualified Person with respect to such Plan.
If the underwriter with respect to an offering of Trust
Certificates is a broker-dealer registered under the Exchange Act, and
customarily purchases and sells securities for its own account in the ordinary
course of its business as a broker-dealer, sales of Trust Certificates by such
underwriter to Plans may be exempt under PTE 75-1 if the following conditions
are satisfied: (i) the underwriter is not a fiduciary with respect to the Plan
and is party in interest or Disqualified Person solely by reason of Section
3(14)(B) of ERISA or Section 4975(e)(2)(B) of the Code or a relationship to a
person described in such Sections, (ii) the transaction is at least as favorable
to the Plan as an arms-length transaction with an unrelated party and is not a
prohibited transaction within the meaning of Section 503(b) of the Code, and
(iii) the Plan maintains for at least six years such records as are necessary to
determine whether the conditions)s of PTE 75-1 have been met.
The custodial and other services tendered by the Trustee and any
trustee with respect to Underlying Securities might be exempt pursuant to
Section 408(b)(2) of ERISA and Section 4975(d)(2) of the Code, which exempt
services necessary for the establishment or operation of a Plan under a
reasonable contract or arrangement and for which no more than reasonable
compensation is paid. An arrangement would not be treated as reasonable unless
it can be terminated upon reasonably short notice under the circumstances
without penalty. The statutory exemption for services noted above does not
provide exemptive relief from prohibited transactions described in Section
406(b) of ERISA or Section 4975(c)(1)(E) or (F) of the Code.
Other prohibited transaction exemptions could apply to the
acquisition and holding of Trust Certificates by Plans, and the operation of the
Trust, including, but not limited to: PTE 84-14 (an exemption for certain
transaction determined by An independent qualified professional asset manager),
PTE 91-38 (an exemption for certain transactions involving bank collective
investment funds), PTE 90-1 (an exemption for certain transactions involving
insurance company pooled separate accounts) or PTE 95-60 (an exemption for
certain transactions involving insurance company pooled general accounts).
The Prospectus Supplement relating to any offering of Trust
Certificates that will result in the Trust Assets being deemed to constitute
Plan Assets will provide that, by acquiring and holding a Trust Certificate, a
Plan shall be deemed to have represented and warranted to the Depositor,
Trustee, and underwriter that such acquisition and holding of a Trust
Certificate does not involve a non-exempt prohibited transaction with respect to
such Plan, including with respect to the activities of the Trust.
ANY PLAN OR INSURANCE COMPANY INVESTING ASSETS OF ITS GENERAL ACCOUNT
PROPOSING TO ACQUIRE TRUST CERTIFICATES SHOULD CONSULT WITH ITS COUNSEL.
46
<PAGE>
PLAN OF DISTRIBUTION
Trust Certificates may be offered in any of three ways: (i) through
underwriters or dealers; (ii) directly to one or more purchasers; or (iii)
through agents. The applicable Prospectus Supplement will set forth the material
terms of the offering of any Series of Trust Certificates, which may include the
names of any underwriters, or initial purchasers, the purchase price of such
Trust Certificates and the proceeds to the Depositor from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, any securities exchanges on which such Trust
Certificates may be listed, and the place and time of delivery of the Trust
Certificates to be offered thereby.
If underwriters are used in the sale, Trust Certificates will be
acquired by the underwriters at a fixed price for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Such Trust Certificates may be offered to the public either
through underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Such managing underwriters or underwriters in
the United States will include Merrill Lynch & Co. The obligations of such
underwriters to purchase such Trust Certificates will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all such
Trust Certificates if any of such Trust Certificates are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Trust Certificates may also be sold through agents designated by the
Depositor from time to time. Any agent involved in the offer or sale of Trust
Certificates will be named, and any commissions payable by the Depositor to such
agent will be set forth, in the applicable Prospectus Supplement. Unless
otherwise indicated in the applicable Prospectus Supplement, any such agent will
act on a best-efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Depositor
will authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Trust Certificates at the public offering
price described in such Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a future date specified in such
Prospectus Supplement. Such contracts will be subject only to those conditions
set forth in the applicable Prospectus Supplement and such Prospectus Supplement
will set forth the commissions payable for solicitation of such contracts. Any
underwriters, dealers or agents participating in the distribution of Trust
Certificates may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of Trust Certificates may be deemed to be
underwriting discounts and commissions under the Securities Act. Agents and
underwriters may be entitled under agreements entered into with the Depositor to
indemnification by the Depositor against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments that the agents or underwriters or their affiliates may be required to
make in respect thereof. Agents and underwriters and their affiliates may be
customers of, engage in transactions with, or perform services for, the
Depositor or its affiliates in the ordinary course of business.
Only Trust Certificates rated in one of the investment grade rating
categories by a Rating Agency will be offered hereby. Affiliates of the
underwriters may act as agents or underwriters in connection with the sale of
the Trust Certificates. Any affiliate of the underwriters so acting will be
named, and its affiliation with the underwriters described, in the applicable
Prospectus Supplement. The underwriters or their affiliates may act as
principals or agents in connection with market-making transactions relating to
the Trust Certificates. The original Prospectus Supplement related to the Trust
Certificates for which a market is being made will be delivered with respect to
the Trust Certificates for use by such underwriters or affiliates in connection
with offers and sales related to market-making transactions in the Trust
Certificates.
The Depositor is an affiliate of Merrill Lynch & Co.
47
<PAGE>
LEGAL MATTERS
The validity of the Trust Certificates will be passed upon for the
Depositor and the underwriters by Shearman & Sterling, New York, New York or
other counsel identified in the applicable Prospectus Supplement.
48
<PAGE>
INDEX OF DEFINED TERMS
Page
----
Administration Agreements.....................................................33
Administrative Agent...........................................................1
Allocation Ratio .......................................................S-6, 22
Available Funds ..........................................................S-21
Base Rate ............................................................17
Business Day ............................................................16
Calculation Agent ............................................................17
Calculation Date ............................................................23
Call Price ............................................................23
Callable Series ............................................................23
CD Rate ............................................................18
CD Rate Trust Certificate.....................................................17
Cede ........................................................S-3, 1
Class .............................................................1
Class _-1 Allocation.........................................................S-6
Class _-2 Allocation.........................................................S-6
Clearing Agency ......................................................S-19, 23
clearing corporation..........................................................23
Closing Date ...........................................................S-2
Code ....................................................S-7, 5, 37
Commercial Paper Rate.........................................................19
Commercial Paper Rate Trust Certificate.......................................17
Commission ....................................................S-10, 1, 2
Composite Quotations..........................................................17
Concentrated Underlying Securities.............................................1
Credit Support .............................................................1
Cut-off Date ............................................................31
Debt Securities ...........................................................S-9
Definitive Trust Certificate..................................................23
Depositary ........................................................S-3, 1
Deposited Assets .........................................................1, 25
Depositor ...................................................S-1, S-4, 1
Disqualified Persons....................................................S-27, 45
Distribution Date ...................................................S-1, S-5, 2
DTC ...................................................S-3, S-7, 1
Eligible Investments........................................................S-21
Event of Default ..........................................................S-23
Exchangeable Series...........................................................22
Exchange Act ....................................................S-10, 1, 2
Extraordinary Expenses........................................................35
Federal Funds Rate............................................................19
Federal Funds Rate Trust Certificate..........................................17
Final Scheduled Distribution Date....................................S-1, S-5, 2
Fixed Rate Trust Certificates.................................................16
Floating Rate Trust Certificates..............................................17
Floating Trust Certificate Rate...............................................14
Foreign Trust Certificateholders............................................S-27
Global Security .............................................................1
Government Securities..........................................................1
grantor trust.................................................................38
H.15(519).....................................................................17
I-1
<PAGE>
Page
----
Indenture.........................................................S-10, S-15, 16
Index Maturity................................................................17
Interest Reset Date...........................................................18
Interest Reset Period.........................................................18
IRA..........................................................................S-8
Letter of Credit..............................................................30
Letter of Credit Bank.........................................................30
LIBOR.........................................................................20
LIBOR Reuters.................................................................20
LIBOR Telerate................................................................20
LIBOR Trust Certificate.......................................................17
Maximum Trust Certificate Rate................................................17
Merrill Lynch & Co........................................................S-2, 1
Minimum Trust Certificate Rate................................................17
Money Market Yield............................................................19
Moody's.................................................................S-1, S-7
Notional Amount...............................................................16
NYSE.................................................................S-1, S-7, 1
OID..........................................................................S-7
Optional Exchange Right.......................................................22
Ordinary Expenses...........................................................S-35
Original Issue Date...........................................................14
Participants.............................................................S-3, 23
Parties in Interest.....................................................S-27, 45
Plan............................................................S-8, S-27, 5, 45
Plan Assets...................................................................45
Prime Rate....................................................................21
Prime Rate Trust Certificate..................................................17
Prospectus Supplement..........................................................1
PTEs....................................................................S-27, 46
Put Date......................................................................23
Put Option....................................................................23
Puttable Underlying Securities................................................23
Purchase Price................................................................40
Rating Agency...........................................................S-10, 10
Rating Agent................................................................S-10
Realized Losses...............................................................22
Record Date...................................................................16
Reference Banks...............................................................20
Registration Statement.........................................................2
Regulation....................................................................45
Related Proceeds..............................................................33
Required Percentage...........................................................35
Required Percentage-Amendment...............................................S-24
Required Percentage-Remedies................................................S-23
Reserve Account...............................................................30
Retained Interest.............................................................12
Reuters Screen LIBO Page......................................................20
Reuters Screen NYMF Page......................................................20
Risk Factors-Derivatives......................................................25
S&P.....................................................................S-1, S-7
Secured Underlying Securities.................................................28
I-2
<PAGE>
Page
----
Securities Act.................................................................2
Senior Underlying Securities..................................................28
Series.........................................................................1
Specified Currency..................................................S-6, S-17, 2
Spread........................................................................17
Spread Multiplier.............................................................17
Standard Terms.................................................................1
Strip Trust Certificates......................................................15
Subordinated Underlying Securities............................................28
Surety........................................................................30
Surety Bond...................................................................30
Tax Event...................................................................S-16
Telerate Page 3750............................................................20
TOPrS(sm).....................................................................29
Treasury Rate.................................................................21
Treasury Rate Trust Certificate...............................................17
Trust................................................................S-1, S-4, 1
Trust Agreement...........................................................S-4, 1
Trust Certificate Account.....................................................31
Trust Certificate Rate........................................................14
Trust Certificateholders..................................................S-1, 1
Trust Certificates....................................................S-4, 1, 13
Trust Indenture Act...........................................................26
Trustee...................................................................S-1, 1
Trustee Fee..............................................................S-4, 12
U.S. dollars, US$, dollar or $.................................................3
Underlying Securities................................................S-1, S-4, 1
Underlying Securities Issuer..........................................S-1, 1, 25
Underlying Securities Rate....................................................28
Underlying Securities Prospectus............................................S-15
Underlying Securities Trustee...........................................S-10, 26
Underwriter..................................................................S-2
Underwriting Agreement......................................................S-29
United States Person........................................................S-27
Voting Rights.................................................................35
I-3
<PAGE>
================================================================================
No dealer, sales person or other person has been authorized to give any
information or make any representation not contained in this Prospectus and if
given or made, such information or representation must not be relied upon as
having been authorized by the Depositor or Merrill Lynch & Co. This Prospectus
does not constitute an offer to sell or a solicitation of an offer to buy, any
of the Trust Certificates offered hereby in any jurisdiction to any person to
whom it is unlawful to make such offer in such jurisdiction. Neither the
delivery of this Prospectus nor any sale hereunder shall, under any
circumstances, create any implication that the information herein is correct as
of any time subsequent to the date hereof or that there has been no change in
the affairs of the Company since such date.
------------------
TABLE OF CONTENTS
Page
----
PROSPECTUS SUPPLEMENT
PROSPECTUS SUPPLEMENT SUMMARY.............................................. S-4
RISK FACTORS...............................................................S-12
THE TRUST..................................................................S-13
DESCRIPTION OF THE UNDERLYING SECURITIES...................................S-14
DESCRIPTION OF THE TRUST CERTIFICATES......................................S-17
THE DEPOSITOR..............................................................S-22
DESCRIPTION OF THE TRUST AGREEMENT.........................................S-22
FEDERAL INCOME TAX CONSEQUENCES............................................S-25
ERISA CONSIDERATIONS.......................................................S-27
UNDERWRITING...............................................................S-29
VALIDITY OF THE TRUST CERTIFICATES.........................................S-29
RATINGS....................................................................S-29
PROSPECTUS
PROSPECTUS SUPPLEMENT....................................................... 2
AVAILABLE INFORMATION....................................................... 2
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE.............................................................. 2
REPORTS TO TRUST CERTIFICATEHOLDERS......................................... 3
PROSPECTUS SUMMARY.......................................................... 4
RISK FACTORS................................................................ 7
THE DEPOSITOR............................................................... 12
USE OF PROCEEDS............................................................. 12
FORMATION OF THE TRUST...................................................... 12
MATURITY AND YIELD CONSIDERATIONS........................................... 12
DESCRIPTION OF THE TRUST CERTIFICATES....................................... 13
DESCRIPTION OF DEPOSITED ASSETS............................................. 25
DESCRIPTION OF THE TRUST AGREEMENT.......................................... 31
CURRENCY RISKS.............................................................. 41
FEDERAL INCOME TAX CONSEQUENCES............................................. 42
ERISA CONSIDERATIONS........................................................ 45
PLAN OF DISTRIBUTION........................................................ 47
LEGAL MATTERS............................................................... 48
INDEX OF DEFINED TERMS......................................................I-1
Until [25][90] days after the date of this Prospectus, all dealers
affecting transactions in the offered Trust Certificates, whether or not
participating in this distribution, may be required to deliver a Prospectus
Supplement and the Prospectus to which it relates. This requirement is in
addition to the obligations of dealers to deliver a Prospectus Supplement and
Prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
================================================================================
<PAGE>
================================================================================
[ ]
STEERS(R) TRUST CERTIFICATES
Series 199_-[ ]
----------
PROSPECTUS
SUPPLEMENT
----------
Merrill Lynch & Co.
[ ] __, 1997
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses expected to be incurred in connection with the issuance and
distribution of the securities being registered, other than underwriting
compensation, are as set forth below. Except for the registration fee payable to
the Securities and Exchange Commission, all such expenses are estimated:
Securities and Exchange Commission registration fee................. $ 151,517
Fees and expenses of Trustee (including legal fees)................. 30,000
Printing and engraving expenses..................................... 10,000
Legal fees and expenses............................................. 300,000
Rating agency fees.................................................. 100,000
Miscellaneous....................................................... 33,483
---------
Total.................................... $ 625,000
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides, in
summary, that directors and officers of Delaware corporations are entitled,
under certain circumstances, to be indemnified against all expenses and
liabilities (including attorney's fees) incurred by them as a result of suits
brought against them in their capacity as directors or officers, if they acted
in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the company, and, with respect to any criminal action
or proceeding, if they had no reasonable cause to believe their conduct was
unlawful; provided that no indemnification may be made against expenses in
respect of any claim, issue or matter as to which they shall have been adjudged
to be liable to the company, unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, they are fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Any such indemnification may be made by the
company only as authorized in each specific case upon a determination by the
stockholders of disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
The Registrant's Amended and Restated Certificate of Incorporation
provides that no director of the Registrant shall be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability: (i) for any breach of the director's duty
of loyalty to the Registrant or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) in respect of certain unlawful dividend payments or stock redemptions
or purchases; or (iv) for any transaction from which the director derived an
improper personal benefit.
The Registrant's Amended and Restated Certificate of Incorporation and
By-Laws provide for indemnification of its directors and officers to the fullest
extent permitted by Delaware law, as the same may be amended from time to time.
Reference is made to Section 6 of the form of Underwriting Agreement
filed as Exhibit 1.1 hereto for provisions relating to the indemnification of
directors, officers and controlling persons against certain liabilities
including liabilities under the Securities Act of 1933, as amended.
II-1
<PAGE>
ITEM 16. EXHIBITS.
- -------- ---------
1.1 Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation of Merrill Lynch
Depositor, Inc.*
3.2 By-laws of Merrill Lynch Depositor, Inc.*
4.1 Standard Terms of Trust Agreement
5.1 Opinion of Shearman & Sterling as to legality (including consent of
such firm)
23.1 Consent of Shearman & Sterling (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of Amendment No. 2
to the Registration Statement)
26.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, of United States Trust Company of New York*
- ------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or
497(h) under the Securities Act of 1933 shall be deemed to be a part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. If a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant, will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant hereby certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Pre-Effective Amendment No. 3 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
on the 3rd day of September, 1997.
MERRILL LYNCH DEPOSITOR, INC.
By: /s/ Frank D. Ronan
------------------------
Name: Frank D. Ronan
Title: President
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 3 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Frank D. Ronan Chairman of the Board, September 3, 1997
- ------------------------- Principal Executive Officer
Frank D. Ronan and Director
II-4
<PAGE>
* Principal Accounting Officer, September 3, 1997
- ------------------------- Principal Financial Officer
Barry N. Finkelstein and Director
II-5
<PAGE>
- --------------------------------------------------------------------------------
*By: /s/ Frank D. Ronan Attorney-in-Fact September 3, 1997
---------------------
Frank D. Ronan
================================================================================
II-6
<PAGE>
INDEX TO EXHIBITS
Sequential page
Exhibits numbers
- -------- -------
1.1 Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation of Merrill Lynch
Depositor, Inc.*
3.2 By-laws of Merrill Lynch Depositor, Inc.*
4.1 Standard Terms of Trust Agreement
5.1 Opinion of Shearman & Sterling as to legality (including consent of
such firm)
23.1 Consent of Shearman & Sterling (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of Amendment No. 2
to the Registration Statement)
25.1 Form T-1 Statement of Eligibility and Qualification under the Trus
Indenture Act of 1939, of United States Trust Company of New York*
- ------------------
* Previously filed.
