PPLUS Trust Series GSC-2 10-K, filed Mar 22, 2024
PPLUS Trust Series GSC-2 (PYT)
About this 10-K
PPLUS Trust Series GSC-2 filed this 10-K on March 22, 2024, covering the fiscal year ended December 31, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
| ☒ Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 | |
| ☐ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 | |
| For the fiscal year ended: | Commission file number: | |
| December 31, 2023 | 001-32247 |
MERRILL LYNCH DEPOSITOR, INC.
(ON BEHALF OF PPLUS TRUST SERIES GSC-2)
(Exact name of registrant as specified in its charter)
| DELAWARE (State or other jurisdiction of incorporation) |
13-3891329 (I. R. S. Employer Identification No.) |
| ONE
BRYANT PARK, 4th FL NEW YORK, NEW YORK (Address of principal executive offices) |
10036 (Zip Code) |
Registrant’s telephone number, including area code: (646) 855-6745
Securities registered pursuant to Section 12(b) of the Act:
PPLUS Trust Certificates Series GSC-2 listed on The New York Stock Exchange. Trading Symbol: PYT
Securities registered pursuant to Section 12(g) of the Act:
Not Applicable.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes ☐ No ☑
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
Yes ☐ No ☑
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes ☑ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes ☐ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ Accelerated filer ☐ Non-accelerated filer ☑ Smaller reporting company ☐ Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C.7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements.
Yes ☐ No ☑
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b).
Yes ☐ No ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes ☐ No ☑
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter.
Not Applicable.
Indicate the number of shares outstanding for each of the registrant’s classes of common stock, as of the latest practicable date.
Not Applicable.
DOCUMENTS INCORPORATED BY REFERENCE
For information with respect to the underlying securities held by PPLUS Trust Series GSC-2, please refer to The Goldman Sachs Group, Inc.’s (Commission file number 001-14965) periodic reports, including annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, and other information on file with the Securities and Exchange Commission (the “SEC”). You can read and copy these reports and other information at the public reference facilities maintained by the SEC at Room 1580, 100 F Street, N.E., Washington, D.C. 20549. You may obtain copies of this material for a fee by writing to the Public Reference Section of the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information about the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. You can also access some of this information electronically by means of the SEC’s website on the Internet at http://www.sec.gov, which contains reports, proxy and information statements and other information that the underlying securities guarantor and the underlying securities issuer have filed electronically with the SEC.
Although we have no reason to believe the information concerning the underlying securities and the junior subordinated debentures or the underlying securities guarantor and the underlying securities issuer contained in the underlying securities guarantor’s Exchange Act reports is not reliable, neither the depositor nor the trustee participated in the preparation of such documents or made any due diligence inquiry with respect to the information provided therein. No investigation with respect to the underlying securities guarantor and underlying securities issuer (including, without limitation, no investigation as to their respective financial condition or creditworthiness) or of the underlying securities and the junior subordinated debentures has been made. You should obtain and evaluate the same information concerning the underlying securities issuer and the underlying securities guarantor as you would obtain and evaluate if your investment were directly in the underlying securities or in other securities issued by the underlying securities issuer or the underlying securities guarantor. There can be no assurance that events affecting the underlying securities and the junior subordinated debentures or the underlying securities issuer and underlying securities guarantor have not occurred or have not yet been publicly disclosed which would affect the accuracy or completeness of the publicly available documents described above.
TABLE OF CONTENTS
Not Applicable.
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Your investment in the trust certificates will involve certain risks. You should carefully consider the following discussion of risks, and the other information included or incorporated by reference in the applicable prospectus supplement and the accompanying prospectus. You should also carefully consider any risk factors and other information that the underlying securities guarantor may file in its Exchange Act reports as referenced in the “Documents Incorporated by Reference” section above.
IF THE UNDERLYING SECURITIES ARE REDEEMED PRIOR TO THE MATURITY DATE OF THE UNDERLYING SECURITIES OR IF ANY CALL WARRANTS ARE EXERCISED PRIOR TO THE STATED MATURITY DATE, YOU MAY NOT BE ABLE TO REINVEST YOUR REDEMPTION OR CALL PROCEEDS AT A YIELD COMPARABLE TO THE YIELD YOU WOULD HAVE RECEIVED ON YOUR TRUST CERTIFICATES
The yield you will realize on your trust certificates depends upon several factors, including:
| • | whether an early termination payment is payable by the trust to the swap counterparty, |
| • | the purchase price of trust certificates, |
| • | when you acquire your trust certificates, |
| • | whether the underlying securities issuer exercises its option to redeem the underlying securities, and |
| • | whether the call warrant holders exercise their optional rights to purchase outstanding trust certificates. |
The underlying securities issuer has the right to redeem the underlying securities in whole or in part at its option or in part if it becomes obligated to pay additional amounts. Because the underlying securities issuer has the right to redeem the underlying securities early, we cannot assure you that the trust will be able to hold the underlying securities until the maturity date of the underlying securities.
Although the call warrant holders are not obligated to exercise the call warrants, the yield you will realize on your trust certificates depends on whether the call warrant holders exercise their call warrants to purchase the trust certificates.
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Prevailing interest rates at the time of an early redemption or a call exercise may be lower than the yield on your trust certificates. Therefore, you may be unable to realize a comparable yield upon reinvesting the funds you receive from an early redemption or exercise of any call warrants. In addition, if the prevailing market value of the trust certificates exceeds the redemption price or call exercise price paid to you upon redemption of the underlying securities or the exercise of a call, you will not be able to realize such excess.
YOU MAY SUFFER LOSSES AS A RESULT OF ANY SWAP EARLY TERMINATION PAYMENT UPON THE LIQUIDATION OF THE UNDERLYING SECURITIES
In the event the underlying securities are liquidated as a result of a default by the underlying securities issuer on its obligations or the underlying securities issuer ceases to file Exchange Act reports, or upon an underlying securities bankruptcy event, trust swap payment default or a trust regulatory event, you will not receive any distributions payable to you until after the payment of the early termination payment (if any is then payable) to the swap counterparty. Unless the proceeds received from the liquidation of the underlying securities are sufficient to pay any early termination payment plus the certificate principal balance and accrued and unpaid interest then due on the trust certificates, you will suffer a loss as a result of such early termination payment and such liquidation. This loss could be quite substantial in relation to the total value of your trust certificates.
YOU MAY NOT BE PAID IF THE ASSETS OF THE TRUST ARE INSUFFICIENT
Currently, the trust has no significant assets other than the underlying securities, the underlying securities guarantee and the swap agreement. If the underlying securities or payments made under the underlying securities guarantee and the swap agreement are insufficient to make payments or distributions on the trust certificates, no other assets will be available for payment of the deficiency.
The underlying securities issuer conducts its business through subsidiaries. Accordingly, its ability to meet its obligations under the underlying securities is dependent on the earnings and cash flows of those subsidiaries and the ability of those subsidiaries to pay dividends or to advance or repay funds to the underlying securities issuer. In addition, the rights that the underlying securities issuer and its creditors would have to participate in the assets of any such subsidiary upon the subsidiary’s liquidation or recapitalization will be subject to the prior claims of the subsidiary’s creditors. Certain subsidiaries of the underlying securities issuer have incurred substantial amounts of debt in the expansion of their businesses, and the underlying securities issuer anticipates that certain of its subsidiaries will do so in the future.
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YOU MAY NOT RECOVER THE WHOLE OF THE PRESENT VALUE OR STATED AMOUNT (IF APPLICABLE) OF YOUR TRUST CERTIFICATES IF THE TRUST DISPOSES OF THE UNDERLYING SECURITIES ON A DEFAULT BY THE UNDERLYING SECURITIES ISSUER OR IN THE EVENT THE UNDERLYING SECURITIES GUARANTOR CEASES FILING EXCHANGE ACT REPORTS
If the underlying securities issuer defaults on its obligations under the underlying securities or the underlying securities guarantor ceases to file Exchange Act reports, then the trust will either distribute the underlying securities to the trust certificateholders or dispose of them and distribute the proceeds to the trust certificateholders. Your recovery in either of those events may be limited by three factors:
| • | if a default occurs, the market value of the underlying securities may be adversely affected and the proceeds of their disposition may be lower than the aggregate present value or stated amount (if applicable) of the trust certificates; |
| • | in either event, any distribution of funds or underlying securities by the trust to the trust certificateholders will be done in accordance with the allocation ratio as described in the applicable prospectus supplement relating to the trust certificates. The funds or aggregate principal amount of underlying securities you receive on that distribution may be less than the present value or stated amount (if applicable) of your trust certificates; and |
| • | any such distribution of funds will be subject to the payment by the trust to the swap counterparty of any early termination payment. |
THE TRUSTEE WILL NOT MANAGE THE UNDERLYING SECURITIES
Except as described below, the trust will not dispose of any underlying securities, even if an event occurs that adversely affects the value of the underlying securities or that adversely affects the underlying securities issuer or the underlying securities guarantor. As provided in the applicable trust agreement, the trust will dispose of the underlying securities only if:
| • | there is a payment default on any underlying securities, |
| • | there is another type of default that accelerates the maturity of the underlying securities, or |
| • | the underlying securities guarantor ceases to file Exchange Act reports. |
Under the first circumstance listed above, the trustee must sell the underlying securities on behalf of the trust, even if adverse market conditions exist. The trustee has no discretion to do otherwise. If adverse market conditions do exist at the time of the trustee’s sale of the underlying securities, you may incur greater losses than if the trust continued to hold the underlying securities.
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THE TRUST CERTIFICATES ARE SUBJECT TO THE CREDITWORTHINESS OF THE UNDERLYING SECURITIES ISSUER AND THE UNDERLYING SECURITIES GUARANTOR
The trust certificates represent interests in obligations of the underlying securities issuer and the underlying securities guarantor. In particular, the trust certificates will be subject to all the risks associated with directly investing in both the underlying securities issuer’s and the underlying securities guarantor’s unsecured subordinated debt obligations. None of the underlying indenture, the underlying securities or the underlying securities guarantee places a limitation on the amount of indebtedness that may be incurred by the underlying securities issuer or underlying securities guarantor.
THE TRUST’S RIGHT TO DIRECT ACTION AGAINST THE UNDERLYING SECURITIES GUARANTOR TO ENFORCE THE RIGHTS OF THE UNDERLYING SECURITIES HOLDERS IS LIMITED
If a debenture event of default occurs and is continuing, then the holders of the underlying securities would rely on, and in certain circumstances could cause, the trustee of the underlying securities issuer to enforce its rights as a holder of the underlying securities and the underlying securities guarantee on behalf of the underlying securities issuer against the underlying securities guarantor. In addition, any registered holder of underlying securities may institute a legal proceeding directly against the underlying securities guarantor to enforce its rights against the underlying securities guarantor without first instituting any legal proceeding against the underlying securities trustee or any other person or entity.
THE UNDERLYING SECURITIES GUARANTOR HAS THE ABILITY TO DEFER INTEREST PAYMENTS ON THE UNDERLYING SECURITIES
The underlying securities guarantor can, on one or more occasions, defer interest payments on the underlying securities for up to 10 consecutive semiannual interest periods, but not beyond the maturity date of the underlying securities. If the underlying securities guarantor defers interest payments on the underlying securities, the underlying securities issuer will defer distributions on the underlying securities. If the underlying securities issuer defers distributions on the underlying securities, the trust will defer distributions on the trust certificates during any deferral period. No additional amounts will accrue on the trust certificates or be owed to trust certificateholders as a result of any delay, but any additional amounts owed and paid by the underlying securities issuer as a result of the delay will be paid to the trust certificateholders. Prior to the termination of any deferral period, the underlying securities guarantor may further extend the deferment, but the total of all deferral periods must not exceed 10 consecutive semiannual interest periods or extend beyond the maturity date. Upon the termination of any deferral period and the payment of all amounts then due, the underlying securities guarantor may commence a new deferral period, subject to the above requirements.
6
Because the underlying securities guarantor has the right to defer interest payments, the market price of the underlying securities (which represent an undivided beneficial interest in the underlying securities) may be more volatile than other similar securities where the issuer does not have the right to defer interest payments.
IF THE UNDERLYING SECURITIES GUARANTOR EXERCISES ITS OPTION TO DEFER INTEREST PAYMENTS ON THE UNDERLYING SECURITIES, THE TRUST CERTIFICATEHOLDERS MAY FACE ADVERSE TAX CONSEQUENCES
Should the underlying securities guarantor exercise its right to defer any payment of interest on the underlying securities, each underlying securities holder will be required to accrue interest income (as original issue discount) in respect of the deferred stated interest allocable to its share of the underlying securities for United States federal income tax purposes. As a result, a trust certificateholder, as a beneficial owner of the underlying securities, would have to include this amount in gross income for United States federal income tax purposes prior to the receipt of any cash distributions. In addition, the trust certificateholder would not receive cash from the underlying security issuer related to this income if the trust certificateholder disposes of the trust certificates prior to the record date on which distributions of these amounts are made. To the extent the selling price is less than the trust certificateholder’s adjusted tax basis (which will include, in the form of original issue discount all accrued but unpaid interest), the trust certificateholder will recognize a capital loss. Subject to limited exceptions, capital losses cannot be applied to offset ordinary income for United States federal income tax purposes.
THE PAYMENTS OWED TO THE TRUST CERTIFICATEHOLDERS ARE UNSECURED OBLIGATIONS
In a liquidation, holders of the underlying securities, including the trust, will be paid only after holders of secured obligations of the underlying securities issuer. According to the underlying securities prospectus, the underlying securities are unsecured and rank equally with all other unsecured and unsubordinated indebtedness of the underlying securities issuer.
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IF THE SWAP AGREEMENT IS TERMINATED AS A RESULT OF A SWAP AGREEMENT TERMINATION EVENT WHICH IS NOT A TRUST TERMINATION EVENT, THEN THE YIELD ON THE TRUST CERTIFICATES WILL BE CONVERTED FROM A FLOATING RATE TO A FIXED RATE AND DISTRIBUTIONS TO YOU WILL BE MADE SEMIANNUALLY INSTEAD OF QUARTERLY
The ability of the trust to make quarterly payments on interest rate distributions on the trust certificates will be dependent on the performance by the swap counterparty of its payment obligations under the swap agreement. If the swap agreement were to be terminated as a result of a swap agreement termination event that is not also a trust termination event, then (i) the trust will remain in existence without any rights or obligations under the swap agreement and (ii) you will receive a pro rata share of the fixed rate interest payments received by the trust in respect of the underlying securities on a semiannual basis, instead of a pro rata share of the floating rate payments under the swap agreement received by the trust on a quarterly basis.
YOU WILL NOT RECEIVE TIMELY DISTRIBUTION ON THE TRUST CERTIFICATES IF THE TRUST DOES NOT RECEIVE TIMELY DISTRIBUTION ON THE UNDERLYING SECURITIES
The underlying issuer may defer the payment of interest on the junior subordinated debentures at any time and in each case for up to 10 semiannual consecutive interest periods, provided that (i) no extension period may extend beyond the stated maturity date of the junior subordinated debentures; and (ii) the underlying issuer is not in default under the subordinated debt indenture governing the junior subordinated debentures. If there is a deferral, the underlying securities issuer also will defer distributions on the underlying securities and the swap counterparty will not be obligated to make any payments to the trust pursuant to the swap agreement. Before any extension period ends, the underlying issuer may elect to extend the period further. At the end of any extension period and the payment of all interest then accrued and unpaid, the underlying issuer may elect to begin a new extension period. There is no limitation on the number of extension periods. If the underlying securities issuer does not pay amounts due under the underlying securities, as a result of a deferral, the swap counterparty is not obligated to make payments to the trust, and the trust will not make any corresponding payments on the trust certificates.
Should the underlying issuer elected to exercise its right to defer payments of interest on the junior subordinated debentures in the future, the market price of the underlying securities is likely to be adversely affected. In addition, merely as a result of the existence of the underlying issuer’s right to defer payments of interest on the junior subordinated debentures, the market price of the underlying securities may be more volatile than the market prices of other securities that are not subject to such deferrals.
8
DISTRIBUTIONS AND OTHER PAYMENTS WITH RESPECT TO YOUR TRUST CERTIFICATES AND YOUR EXPECTED INVESTMENT YIELD MAY BE AFFECTED BY FACTORS SUCH AS THE PERFORMANCE OF THE TRUST ASSETS, THE REDEMPTION OF THE UNDERLYING SECURITIES AND THE EARLY TERMINATION OF THE SWAP AGREEMENT
A number of factors may affect the timing of distributions with respect to your trust certificates and the yield that you realize on your trust certificates, including:
| • | the purchase price you pay for your trust certificates; |
| • | the interest rate on the trust certificates, which will be greater than or equal to 3.00% and will not exceed 8.00%; |
| • | the performance of the underlying securities; |
| • | whether the underlying securities issuer redeems, repurchases or repays the underlying securities before their maturity; |
| • | whether the underlying security guarantor elects to defer interest payments on the underlying securities; |
| • | whether the underlying securities issuer defaults under the underlying securities; |
| • | the possibility that if there is a swap termination event that is not a trust termination event a fixed rate of 6.345% per annum will be payable on the trust certificates, instead of the floating rate distribution amount payable under the swap agreement; |
| • | the possibility that the swap agreement may be terminated early in certain circumstances, resulting in the termination of the trust prior to its scheduled termination date; and |
| • | whether the holder of the call options exercises its call options on your trust certificates. |
We can not predict whether or when the call options will be exercised, whether the underlying securities will be redeemed, repaid, repurchased or accelerated or whether interest on the underlying securities will be deferred. If the trust certificates are prepaid or if the holder of the call options exercises its call options prior to the final distribution date, then the principal of your trust certificates or the call price will be paid to the extent funds are received on the underlying securities or the holder of the call options pays the call price and your investment in the trust certificates will have a shorter average maturity.
9
UPON A SWAP TERMINATION EVENT WHEREBY THE SWAP COUNTERPARTY IS THE DEFAULTING PARTY OR AFFECTED PARTY, YOU ARE NOT LIKELY TO RECEIVE FROM THE SWAP COUNTERPARTY ANY INTEREST THAT HAS ACCRUED
Upon a swap termination event that is not a trust termination event whereby the swap counterparty is the defaulting party (especially upon the bankruptcy, insolvency or reorganization of the swap counterparty), it is unlikely that you will receive from the swap counterparty any interest that has accrued since the last quarterly payment of the interest distribution amount.
IF THE TRUST CERTIFICATES ARE PREPAID WHEN PREVAILING MARKET INTEREST RATES FOR SECURITIES OF A COMPARABLE CREDIT RATING ARE LOWER THAN THE YIELD ON YOUR TRUST CERTIFICATES, YOU MAY BE UNABLE TO REALIZE A COMPARABLE YIELD WHEN YOU REINVEST THE FUNDS THAT YOU RECEIVE FROM THE PREPAYMENT OF YOUR TRUST CERTIFICATES
If the trust certificates are prepaid when prevailing market interest rates for securities of a comparable credit rating are lower than the yield on your trust certificates, you may be unable to realize a comparable yield when you reinvest the funds that you receive from the prepayment of your trust certificates. The interest rate cap on the trust certificates may limit your interest payments and may negatively impact the market value of your trust certificates.
The interest paid on the trust certificates is based on a floating rate that will not exceed 8.00%. If interest rates exceed 8.00%, your trust certificates will not receive interest based on the higher interest rate but rather will be capped at 8.00%. Therefore, the market value of your trust certificates will also be negatively affected as interest rates rise.
THE INTEREST RATE CAP ON THE TRUST CERTIFICATES MAY NEGATIVELY IMPACT THE MARKET VALUE OF YOUR TRUST CERTIFICATES
The interest paid on the trust certificates is based on a floating rate that will not exceed 8.00%. Therefore, the market value of your trust certificates may be negatively affected as interest rates rise.
THE RATINGS OF THE TRUST CERTIFICATES MAY CHANGE
At the time of issuance, S&P assigned ratings to the trust certificates equivalent to the ratings of the underlying securities, as of the date of the applicable prospectus supplement.
10
Any rating issued with respect to the trust certificates is not a recommendation to purchase, sell or hold a security. Ratings do not comment on the market price of the trust certificates or their suitability for a particular investor. We cannot assure you that the ratings will remain for any given period of time or that a ratings agency would not revise or withdraw entirely the ratings if, in its judgment, circumstances (including, without limitation, the rating of the underlying securities) merit. A revision or withdrawal of a rating may adversely affect the market price of the trust certificates.
ITEM 1B. UNRESOLVED STAFF COMMENTS
Not Applicable.
Not Applicable.
None.
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not Applicable.
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
The Trust Certificates issued by PPLUS Trust Series GSC-2 are represented by one or more physical certificates registered in the name of Cede & Co., the nominee of the Depository Trust Company. The Trust Certificates are listed on the New York Stock Exchange.
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Not Applicable.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not Applicable.
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ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Not Applicable.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
The Registrant has procedures so as to provide reasonable assurance that its future Exchange Act filings will be filed within the applicable time periods.
None.
ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not Applicable.
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Not Applicable.
ITEM 11. EXECUTIVE COMPENSATION
Not Applicable.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
| (a) | Securities Authorized For Issuance Under Equity Compensation Plans: None. | |
| (b) | Security Ownership Of Certain Beneficial Owners: None. | |
| (c) | Security Ownership Of Management: Not Applicable. | |
| (d) | Changes In Control: None. |
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
None.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Not Applicable.
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ITEM 15. EXHIBIT AND FINANCIAL STATEMENT SCHEDULES
(a)(1) Financial Statements: Not Applicable.
(a)(2) Financial Statement Schedules: Not Applicable.
(a)(3) List of Exhibits
The following exhibits are filed as part of, and incorporated by reference into, this Annual Report on Form 10-K:
(b) Exhibits
The Registrant hereby files as part of this Annual Report on Form 10-K the exhibits listed in Item 15(a)(3) set forth above.
(c) Financial Statement Schedules
Not Applicable.
13
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| MERRILL LYNCH DEPOSITOR, INC. |
||||
| Date: March 22, 2024 | By: | /s/ Matthew J. Nelson | ||
| Name: | Matthew J. Nelson | |||
| Title: | President | |||
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EXHIBIT 31.1
I, Matthew J. Nelson, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form 8-K containing distribution or servicing reports filed in respect of periods included in the year covered by this annual report, of Merrill Lynch Depositor, Inc., on behalf of PPLUS Trust Series GSC-2;
2. Based on my knowledge, the information in these reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required to be provided to the depositor by the trustee under the pooling and servicing, or similar, agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the depositor and the trustee under the pooling and servicing, or similar, agreement and based upon my knowledge and the annual compliance review required under that agreement, and except as disclosed in the reports, the depositor and trustee have each fulfilled its obligations under that agreement; and
5. The reports disclose all significant deficiencies relating to the compliance by the depositor or trustee with the minimum servicing or similar standards based upon the report provided by an independent public accountant, after conducting a review in compliance with the Uniform Single Attestation Program for Mortgage Bankers or similar procedure, as set forth in the pooling or servicing, or similar, agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties: The Bank of New York Mellon and its officers and agents.
| Date: March 22, 2024 | /s/ Matthew J. Nelson | |||
| Matthew J. Nelson President |
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EXHIBIT 97
Incentive Compensation Recoupment Policy
This Incentive Compensation Recoupment Policy (“Policy”) shall be administered by the Board of Directors (the “Board”) of Bank of America Corporation (the “Company”) or an appropriate Board committee. Any determinations made by the Board or committee shall be final and binding on all affected individuals. Additionally, this Policy incorporates by reference the requirements of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and its implementing rules and regulations thereunder and the New York Stock Exchange listing standards. This Policy operates in addition to any (a) recoupment provisions contained in the terms of other compensation awards or programs, and (b) recoupment requirements imposed under applicable laws.
Covered Officers
This Policy applies to all of the Company’s current and former “executive officers,” as determined by the Board pursuant to Rule 16a-1(f) promulgated under the Exchange Act (“Covered Officers”) and in accordance with Section 10D of the Exchange Act and the New York Stock Exchange listing standards. This Policy shall be binding and enforceable against all such Covered Officers and their beneficiaries, heirs, executors, administrators or other legal representatives.
Compensation Subject to Recoupment
For purposes of this Policy, covered compensation subject to recoupment includes any non-equity incentive plan awards, bonuses paid to a Covered Officer from a bonus pool, cash awards, equity or equity-based awards, or proceeds received upon sale of shares acquired through an incentive plan; provided that, such compensation is granted, earned, and/or vested based wholly or in part on the attainment of a financial reporting measure (“Incentive-based Compensation”). For purposes of this Policy, Incentive-based Compensation will also include any amounts which were determined based on (or were otherwise calculated by reference to) Incentive-based Compensation. A financial reporting measure includes those found in financial statements prepared under U.S. Generally Accepted Accounting Principles or derived in whole or in part from such measure (e.g., total shareholder return, stock price, revenue, net income, return on assets, tangible book value).
Incentive-based Compensation shall not include any salaries, discretionary cash bonuses, non-equity incentive plan awards earned by a Covered Officer upon satisfying a strategic measure or operational measure (e.g., completion of a project), or equity-based awards that are not contingent on achieving any financial reporting measure.
Required Recoupment; Accounting Restatement
In the event the Company is required to prepare an accounting restatement of its financial statements due to the Company’s material noncompliance with any financial reporting requirement under U.S. securities laws or regulations issued by the Securities and Exchange Commission, the Board or applicable committee shall require reimbursement, forfeiture, or other recovery of any excess Incentive-based Compensation (described below) received by any Covered Officer during the applicable look-back period (described below). Covered accounting restatements include those that either (a) correct an error in a previously issued financial statement that is material to such previously issued financial statement or (b) correct an error that is not material to a previously issued financial statement, but would result in a material misstatement if left uncorrected in a current report or the error correction was not recognized in the current period.
The amount of excess Incentive-based Compensation to be recouped due to a covered accounting restatement will be the amount the Covered Officer received in excess of the amount that would have otherwise been received by the Covered Officer had the Incentive-based Compensation been determined based on the restated amounts, calculated on a pre-tax basis. If the Board or committee cannot determine the amount of excess compensation received by the Covered Officer directly from the information in the accounting restatement, then it shall make its determination based on a reasonable estimate of the effect of the covered accounting restatement.
The look-back period will be the three completed fiscal years immediately preceding the earlier of the date on which (a) the Board or committee concludes or reasonably should have concluded that an accounting restatement is required or (b) a court, regulator, or other legally authorized body directs a restatement.
Additional Recoupment; Fraud or Intentional Misconduct
If the Board or an appropriate committee has determined that any fraud or intentional misconduct by one or more Covered Officers caused, directly or indirectly, the Company to restate its financial statements, the Board or committee shall take, in its sole discretion, such additional action, if any, as it deems necessary to remedy the misconduct and prevent its recurrence. Notwithstanding the “Compensation Subject to Recoupment” and “Required Recoupment; Accounting Restatement” sections above, this may include requiring reimbursement of any bonus or incentive compensation awarded to such officers and/or the cancellation of unvested equity-based awards previously granted to such Covered Officers in the amount by which compensation exceeded any lower payment that would have been made based on the restated financial results.
Recoupment Method
The Board or committee may determine, in its sole discretion, the method for recouping compensation from a Covered Officer reasonably promptly under this Policy including, without limitation: (a) requiring reimbursement of cash previously paid; (b) seeking recoupment of any gain realized on the vesting, exercise, settlement, sale, transfer, or other disposition of any equity or equity-based awards; (c) offsetting the recouped amount from any compensation otherwise owed to the Covered Officer; (d) cancelling outstanding vested or unvested equity or equity-based awards; (e) forfeiting any vested non-qualified deferred compensation account balances; and/or (f) taking any other remedial and recoupment action permitted by law, as determined by the Board or committee. The Board or committee shall not be required to seek to recoup compensation under this Policy if such recoupment would (i) be impracticable, (ii) violate home country laws, or (iii) likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of Section 401(a)(13) or Section 411(a) of the U.S. Internal Revenue Code of 1986, as amended; each as determined by the Board or committee in accordance with the New York Stock Exchange listing standards. Any such determination that recoupment is not required shall be evidenced by the Board or committee.
The Company shall not indemnify any Covered Officers against the loss of any compensation resulting from the application of this Policy.
EXHIBIT 99.1
THE BANK OF NEW YORK MELLON
Officer’s Certificate
March 18, 2024
MERRILL
LYNCH DEPOSITOR, INC.
One Bryant Park
4th Floor – Structured Credit Trading
New York, New York 10036
PREFERREDPLUS, PPLUS TRUST AND INDEXPLUS CERTIFICATE
The undersigned, Terrence White, Vice President of The Bank of New York Mellon (formerly The Bank of New York), a New York corporation (the “Trustee”), hereby certifies in such capacity that, based on his knowledge, the Trustee has complied, in all material respects, with all conditions and covenants applicable to the Trustee under the Standard Terms for Trust Agreements dated February 20, 1998 between MERRILL LYNCH DEPOSITOR, INC., as depositor (the “Depositor”) and the Trustee, as successor to United States Trust Company of New York, as trustee and securities intermediary (the “Securities Intermediary”), in each case as amended by a series supplement between the Depositor, the Trustee and the Securities Intermediary for each trust series listed in the attached schedule.
| Very truly yours, The Bank of New York Mellon (formerly The Bank of New York), as Trustee |
||||
| By: | /s/ | Terrence White | ||
| Name: | Terrence White | |||
| Title: | Vice President | |||
SCHEDULE
PPLUS
Trust Series GSC-2
INDEXPLUS Trust Series 2003-1
EXHIBIT 99.2
[PricewaterhouseCoopers Letterhead]
Report of Independent Accountants
To the Board of Directors and Management of Merrill Lynch Depositor, Inc.:
We have examined the accompanying management assertion of Merrill Lynch Depositor, Inc. (the “Company”) that the Company complied with the PPLUS Minimum Servicing Standards with respect to the PPLUS Trust Series GSC-2 as set forth in Appendix I as of and for the year ended December 31, 2023. The Company’s management is responsible for its assertion. Our responsibility is to express an opinion on management's assertion based on our examination.
Our examination was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants. Those standards require that we plan and perform the examination to obtain reasonable assurance about whether management's assertion is fairly stated, in all material respects. An examination involves performing procedures to obtain evidence about management’s assertion. The nature, timing and extent of the procedures selected depend on our judgment, including an assessment of the risks of material misstatement of management’s assertion, whether due to fraud or error. We believe that the evidence we obtained is sufficient and appropriate to provide a reasonable basis for our opinion.
We are required to be independent and to meet our other ethical responsibilities in accordance with relevant ethical requirements related to the engagement.
Our examination does not provide a legal determination on the Company’s compliance with the specified requirements.
In our opinion, management’s assertion that the Company complied with the PPLUS Minimum Servicing Standards with respect to the PPLUS Trust Series GSC-2 as set forth in Appendix I as of and for the year ended December 31, 2023 is fairly stated, in all material respects.
/s/ PricewaterhouseCoopers LLP
New York, New York
March 7, 2024
Management’s
Assertion on Compliance with PPLUS Minimum
Servicing Standards
March 7, 2024
As of and for the year ended December 31, 2023, Merrill Lynch Depositor, Inc. (the “Company”) has complied, in all material respects, with the Company’s established minimum servicing standards, as set forth in Appendix I, for servicing the securities in each of the Trust Series, as listed on Schedule A hereto, excluding those with respect to the Bank of New York Mellon as Trustee, Custodian, Paying Agent and Transfer Agent.
| By: | /s/ Matthew J. Nelson | |||
| Matthew J. Nelson | ||||
| President Merrill Lynch Depositor, Inc. |
||||
***************
SCHEDULE A
PPLUS Trust Series GSC-2
INDEXPLUS Trust Series 2003-1
Appendix I
PPLUS Minimum Servicing Standards intended for use
in connection with the Annual Accountants Report ("AAR")
Below is Merrill Lynch Depositor, Inc.'s ("the Depositor"), Merrill Lynch Structured Credit Derivatives ("SCD") and the Merrill Lynch Credit Derivatives Operations Group ("OG") (collectively, “Merrill Lynch”) minimum servicing standards for the PreferredPlus Program ("PPlus").
The Bank of New York Mellon ("the Bank" or “the Trustee”) acting as Trustee, Custodian, Paying Agent, and Transfer Agent on behalf of the PPlus Program has agreed to comply with all of the following minimum servicing standards. Merrill Lynch has obtained a certification from the Bank that it has complied with these criteria for the period January 1, 2023 to December 31, 2023.
| MINIMUM Servicing STANDARD | Applicable Servicing STANDARD | ||
| Reference | Criteria | Performed by the Depositor |
Performed by Bank/Trustee |
| CUSTODIAL BANK ACCOUNT RECONCILIATIONS | |||
| 1 | The Bank must reconcile all related custodial bank accounts. | X | |
| The Bank will include the Distribution report as Exhibit 99.1 in the Form 8-Ks filed with the SEC. | X | ||
| VERIFICATION OF INCOMING TRUST COLLATERAL INTEREST PAYMENTS | |||
| 2 | The Bank must have a tickler system in place so that they will be expecting and monitoring the custodial bank account for receipt of the collateral coupon interest. Each of the tickler systems shall be updated on an on-going basis as each new trust series is created. | X | |
| The Bank will ensure all interest payments are deposited into the custodial bank accounts and related bank clearing accounts on the day the Bank is in receipt of the funds. | X | ||
| The Bank must prove the arithmetic accuracy of the amount of interest received by the Trust from the underlying securities and ensure that the face amount, description, coupon rate, and maturity date of the securities held in the Trust agree to the PPM Supplement dated Date XX, 20XX. | X | ||
1
| MINIMUM Servicing STANDARD | Applicable Servicing STANDARD | ||
| Reference | Criteria | Performed by the Depositor |
Performed by Bank/Trustee |
TRUST DISBURSEMENTS | |||
| 3 | The Bank must prove the arithmetic accuracy of the amount of interest to be paid by the Trust to the Debt Unit holders by referring to the PPM Supplement dated Date XX, 20XX. | X | |
| The Bank will make all disbursements via wire transfer to The Depository Trust Company ("DTC") on the scheduled trust distribution date as soon as the amount of interest received from the underlying collateral into the custodial bank account has been received and verified for accuracy. | X | ||
| PARTIAL REDEMPTIONS | |||
| 4 | If there is a partial redemption of the trust certificates the Bank and the Depositor must ensure that the redemption proceeds received by the Trust and distributed by the Bank are in accordance with the series supplement. | X | X |
| DEFAULTS | |||
| 5 | If the Bank has actual knowledge of an event of default on the underlying securities that did not cause the Trust to liquidate, the Bank must distribute a formal notice of default to the Depositor, the certificateholders, the rating agencies and SCD/OG. | X | |
| If the Bank has actual knowledge of an event of default on the underlying securities that did not cause the Trust to liquidate, the procedures for a vote or consent of the certificateholders as set forth in the Standard Terms and series Supplement must be complied with. | X | ||
| CALL WARRANT EXERCISES AND OPTIONAL EXCHANGES | |||
| 6 | If there is an exercise of call warrants or an optional exchange of trust certificates for underlying securities that did not cause the Trust to liquidate, the Bank must give the Depositor and the affected certificateholders notice of any exercise of call warrants or optional exchange. Such notice must contain the amount of certificates to be purchased, the call price, and any other relevant information. | X | |
2
| MINIMUM Servicing STANDARD | Applicable Servicing STANDARD | ||
| Reference | Criteria | Performed by the Depositor |
Performed by Bank/Trustee |
| If there is an exercise of call warrants or an optional exchange of trust certificates for underlying securities that did not cause the trust to liquidate, the Bank must notify the rating agencies of the call exercise or optional exchange. | X | ||
| If there is an exercise of call warrants or an optional exchange of trust certificates for underlying securities that did not cause the trust to liquidate, the Bank must give notice of exercise or optional exchange to the Depositor and certificate registrar of any certificates that were called. | X | ||
| COMMUNICATIONS WITH CERTIFICATEHOLDERS | |||
| 7 | If there was any occasion for the exercise of voting rights or giving consents by the certificateholders, the Bank must provide notice to the certificateholders within 5 business days of the Trust's receipt of notice of the occasion and the Bank must vote or give consents as directed by certificateholders. | X | |
3
EXHIBIT 99.3
[KPMG LLP Letterhead]
KPMG
LLP
Aon Center
Suite 5500
200 E. Randolph Street
Chicago, IL 60601-6436
Independent Accountants’ Report
The
Board of Directors
The Bank of New York Mellon:
We have examined management of The Bank of New York Mellon’s (the “Bank”) assertion that the Bank complied with the PPLUS Minimum Servicing Standards (“Servicing Standards”) for the PPLUS Trust Series GSC-2 transaction as of and for the year ended December 31, 2023. With respect to Servicing Standards 4, 5, 6 and 7, the management assertion indicates that there were no activities performed as of and for the year ended December 31, 2023 with respect to the PPLUS Trust Series GSC-2 transaction, because there were no occurrences of the events that would require the Bank to perform such activities. The Bank’s management is responsible for its assertion. Our responsibility is to express an opinion on management’s assertion about the Bank’s compliance with the specified requirements based on our examination.
Our examination was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants. Those standards require that we plan and perform the examination to obtain reasonable assurance about whether management’s assertion about compliance with the specified requirements is fairly stated, in all material respects. An examination involves performing procedures to obtain evidence about whether management’s assertion is fairly stated, in all material respects. The nature, timing, and extent of the procedures selected depend on our judgment, including an assessment of the risks of material misstatement of management’s assertion, whether due to fraud or error. We believe that the evidence we obtained is sufficient and appropriate to provide a reasonable basis for our opinion.
We are required to be independent and to meet our other ethical responsibilities in accordance with relevant ethical requirements relating to the engagement.
Our examination does not provide a legal determination on the Bank’s compliance with specified requirements.
In our opinion, management’s assertion that the Bank complied with the aforementioned PPLUS Minimum Servicing Standards for the PPLUS Trust Series GSC-2 transaction as of and for the year ended December 31, 2023 is fairly stated, in all material respects.
We do not express an opinion or any other form of assurance on management’s statement referring to its responsibility for establishing and maintaining effective internal control over compliance with the Servicing Standards.
/s/ KPMG LLP
Chicago,
Illinois
February 21, 2024
MANAGEMENT ASSERTION
The Bank of New York Mellon (formerly The Bank of New York) (the “Bank”) is responsible for complying with the requirements of the PPLUS Minimum Servicing Standards (“Servicing Standards”) as they relate to the PPLUS Trust Series GSC-2 transaction. With respect to Servicing Standards 4, 5, 6 and 7, there were no activities performed as of and for the year ended December 31, 2023 with respect to the PPLUS Trust Series GSC-2 transaction, because there were no occurrences of events that would require the Bank to perform such activities. The Bank is responsible for establishing and maintaining effective internal control over compliance with the Servicing Standards. The Bank has performed an evaluation of its compliance with the requirements of the Servicing Standards as it relates to PPLUS Trust Series GSC-2 as of and for the year ended December 31, 2023. Based on this evaluation, the Bank asserts that as of and for the year ended December 31, 2023, it has complied with the requirements of the PPLUS Minimum Servicing Standards (attached).
/s/ Linda Derrick The
Bank of New York Mellon |
Appendix I
PPLUS Minimum Servicing Standards intended for use
in connection with the Annual Accountants Report ("AAR")
Below is Merrill Lynch Depositor, Inc.'s ("the Depositor"), Merrill Lynch Structured Credit Derivatives ("SCD") and the Merrill Lynch Credit Derivatives Operations Group ("OG") (collectively Merrill Lynch) minimum servicing standards for the PreferredPlus Program ("PPlus").
The Bank of New York Mellon ("the Bank" or “the Trustee”) acting as Trustee, Custodian, Paying Agent, and Transfer Agent on behalf of the PPlus Program has agreed to comply with all of the following minimum servicing standards. Merrill Lynch has obtained a certification from the Bank that it has complied with these criteria for the period January 1, 2023 to December 31, 2023.
| MINIMUM Servicing STANDARD | Applicable Servicing STANDARD | ||
| Reference | Criteria | Performed by the Depositor |
Performed by Bank/Trustee |
| CUSTODIAL BANK ACCOUNT RECONCILIATIONS | |||
| 1 | The Bank must reconcile all related custodial bank accounts. | X | |
| The Bank will include the Distribution report as Exhibit 99.1 in the Form 8-Ks filed with the SEC. | X | ||
| VERIFICATION OF INCOMING TRUST COLLATERAL INTEREST PAYMENTS | |||
| 2 | The Bank must have a tickler system in place so that they will be expecting and monitoring the custodial bank account for receipt of the collateral coupon interest. Each of the tickler systems shall be updated on an on-going basis as each new trust series is created. | X | |
| The Bank will ensure all interest payments are deposited into the custodial bank accounts and related bank clearing accounts on the day the Bank is in receipt of the funds. | X | ||
| The Bank must prove the arithmetic accuracy of the amount of interest received by the Trust from the underlying securities and ensure that the face amount, description, coupon rate, and maturity date of the securities held in the Trust agree to the PPM Supplement dated Date XX, 20XX. | X | ||
1
| MINIMUM Servicing STANDARD | Applicable Servicing STANDARD | ||
| Reference | Criteria | Performed by the Depositor |
Performed by Bank/Trustee |
TRUST DISBURSEMENTS | |||
| 3 | The Bank must prove the arithmetic accuracy of the amount of interest to be paid by the Trust to the Debt Unit holders by referring to the PPM Supplement dated Date XX, 20XX. | X | |
| The Bank will make all disbursements via wire transfer to The Depository Trust Company ("DTC") on the scheduled trust distribution date as soon as the amount of interest received from the underlying collateral into the custodial bank account has been received and verified for accuracy. | X | ||
| PARTIAL REDEMPTIONS | |||
| 4 | If there is a partial redemption of the trust certificates the Bank and the Depositor must ensure that the redemption proceeds received by the Trust and distributed by the Bank are in accordance with the series supplement. | X | X |
| DEFAULTS | |||
| 5 | If the Bank has actual knowledge of an event of default on the underlying securities that did not cause the Trust to liquidate, the Bank must distribute a formal notice of default to the Depositor, the certificateholders, the rating agencies and SCD/OG. | X | |
| If the Bank has actual knowledge of an event of default on the underlying securities that did not cause the Trust to liquidate, the procedures for a vote or consent of the certificateholders as set forth in the Standard Terms and series Supplement must be complied with. | X | ||
| CALL WARRANT EXERCISES AND OPTIONAL EXCHANGES | |||
| 6 | If there is an exercise of call warrants or an optional exchange of trust certificates for underlying securities that did not cause the Trust to liquidate, the Bank must give the Depositor and the affected certificateholders notice of any exercise of call warrants or optional exchange. Such notice must contain the amount of certificates to be purchased, the call price, and any other relevant information. | X | |
2
| MINIMUM Servicing STANDARD | Applicable Servicing STANDARD | ||
| Reference | Criteria | Performed by the Depositor |
Performed by Bank/Trustee |
| If there is an exercise of call warrants or an optional exchange of trust certificates for underlying securities that did not cause the trust to liquidate, the Bank must notify the rating agencies of the call exercise or optional exchange. | X | ||
| If there is an exercise of call warrants or an optional exchange of trust certificates for underlying securities that did not cause the trust to liquidate, the Bank must give notice of exercise or optional exchange to the Depositor and certificate registrar of any certificates that were called. | X | ||
| COMMUNICATIONS WITH CERTIFICATEHOLDERS | |||
| 7 | If there was any occasion for the exercise of voting rights or giving consents by the certificateholders, the Bank must provide notice to the certificateholders within 5 business days of the Trust's receipt of notice of the occasion and the Bank must vote or give consents as directed by certificateholders. | X | |
3