SERIES SUPPLEMENT
TRUST CERTIFICATES (TRUCs)
SERIES 2001-4 TRUST
between
BEAR XXXXXXX DEPOSITOR INC.,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
TRUST CERTIFICATES (TRUCs)
Dated as of October 26, 2001
TABLE OF CONTENTS
Page
Section 1. INCORPORATION OF STANDARD TERMS............................ 1
Section 2. DEFINITIONS................................................ 1
Section 3. DESIGNATION OF TRUST AND CERTIFICATES...................... 6
Section 4. TRUST CERTIFICATES......................................... 7
Section 5. DISTRIBUTIONS.............................................. 7
Section 6. TRUSTEE'S FEES............................................. 9
Section 7. REDEMPTION UPON EXERCISE OF CALL WARRANTS.................. 10
Section 8. EVENTS OF DEFAULT.......................................... 11
Section 9. MISCELLANEOUS.............................................. 11
Section 10. GOVERNING LAW.............................................. 14
Section 11. COUNTERPARTS............................................... 14
Section 12. TERMINATION OF THE TRUST................................... 14
Section 13. SALE OF UNDERLYING SECURITIES.............................. 14
Section 14. AMENDMENTS................................................. 14
Section 15. VOTING OF UNDERLYING SECURITIES, MODIFICATION OF
INDENTURE................................................ 15
SCHEDULE I SERIES 2001-4 UNDERLYING SECURITIES SCHEDULE
EXHIBIT A-1 FORM OF TRUST CERTIFICATE CLASS A-1
i
SERIES SUPPLEMENT
TRUST CERTIFICATES (TRUCs)
TRUCs Series 2001-4 TRUST
SERIES SUPPLEMENT, Series 2001-4, dated as of October 26, 2001
(the "Series Supplement"), by and between BEAR XXXXXXX DEPOSITOR INC., as
Depositor (the "Depositor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated
herein (the "Trust") by executing and delivering this Series Supplement, which
shall incorporate the terms of the Standard Terms for Trust Agreements, dated as
of June 19, 2001 (the "Standard Terms"; together with this Series Supplement,
the "Trust Agreement"), by and between the Depositor and the Trustee, as
modified by this Series Supplement;
WHEREAS, the Depositor desires to deposit the Underlying
Securities set forth on Schedule I attached hereto (the "Underlying Securities
Schedule") and the Call Warrants into the Trust;
WHEREAS, in connection with the creation of the Trust and the
deposit therein of the Underlying Securities and the Call Warrants, it is
desired to provide for the issuance of a series of trust certificates evidencing
undivided interests in the Trust; and
WHEREAS, the Trustee has joined in the execution of the
Standard Terms and this Series Supplement to evidence the acceptance by the
Trustee of the Trust;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee as follows:
Section 1. Incorporation of Standard Terms. Except as otherwise provided
herein, all of the provisions of the Standard Terms are hereby incorporated
herein by reference in their entirety, and this Series Supplement and the
Standard Terms shall form a single agreement between the parties. In the event
of any inconsistency between the provisions of this Series Supplement and the
provisions of the Standard Terms, the provisions of this Series Supplement will
control with respect to the Series 2001-4 Certificates and the transactions
described herein.
Section 2. Definitions. (a) Except as otherwise specified herein or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below for all purposes under this Series Supplement. (Section
2(b) below sets forth terms listed in the Standard Terms which are not
applicable to this Series.) Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Standard Terms.
"Available Funds" shall have the meaning specified in the
Standard Terms, except that investment income earned on funds invested pursuant
to Section 3.05 of the Standard Terms shall be included in Available Funds.
"Business Day" shall mean any day other than (i) Saturday and
Sunday or (ii) a day on which banking institutions in New York City, New York
are authorized or obligated by law or executive order to be closed for business
or (iii) a day that is not a business day for the purposes of the Indenture.
"Call Date" shall mean any date occurring on or after October
26, 2006.
"Call Price" shall mean, for each related Call Date,
100.000000% of the outstanding principal amount of the Underlying Securities to
be called on such Call Date rounded upwards to the nearest whole multiple of
$25.00, plus in each case any accrued and unpaid interest on such Underlying
Securities to but excluding the Call Date.
"Call Request" shall have the meaning specified in Section
7(b) hereof.
"Call Rights" shall mean the rights to purchase in whole or in
part at the Call Price the Underlying Securities pursuant to the Call Warrants.
"Call Warrants" shall mean, collectively, that certain call
warrant on the Underlying Securities issued under the Warrant Agent Agreement.
"Certificate Account" shall mean the Certificate Account
established as specified in the Standard Terms with respect to the Series 2001-4
Certificates and which account shall not apply to or be used in connection with
any other Series.
"Certificates" shall have the meaning specified in Section 3
hereof.
"Class A-1 Certificates" shall mean the Certificates, so
designated in Section 3(a), to be issued by the Trust representing a
proportionate undivided beneficial ownership interest in certain distributions
to be made by the Trust and having the characteristics described herein.
"Closing Date" shall mean October 26, 2001.
"Collection Period" shall mean, (i) with respect to each June
Distribution Date, the period beginning on the day after the December
Distribution Date and ending on such June Distribution Date, inclusive and, (ii)
with respect to each December Distribution Date, the period beginning on the day
after the June Distribution Date of a given year and ending on the December
Distribution Date of the following year, inclusive; provided, however, that
clauses (i) and (ii) shall be subject to Section 9(f) hereof.
"Corporate Trust Office" shall mean the office of U.S. Bank
Trust National Association located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000.
"Currency" shall mean United States Dollars.
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"Depository" shall mean The Depository Trust Company.
"Distribution Date" shall mean June 1 and December 1 of each
year (or if such date is not a Business Day, the next succeeding Business Day),
commencing on December 1, 2001 and ending on the Final Scheduled Distribution
Date.
"Eligible Account" shall have the meaning specified in the
Standard Terms.
"Eligible Investments" shall be as defined in the Standard
Terms; provided, however, that the rating of any short-term instruments will be
A-1+ by S&P and P1 by Moody's; and provided, further, that any such investment
matures no later than the Business Day prior to any related Distribution Date
and that any such investment be denominated in U.S. dollars.
"Event of Default" shall mean (i) a default in the payment of
any interest on any Underlying Security after the same becomes due and payable
(subject to any permitted deferrals and 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.
"Extraordinary Trust Expenses" shall have the meaning
specified in the Standard Terms.
"Final Scheduled Distribution Date" shall mean
December 1, 2095.
"Indenture" shall mean the indenture pursuant to which the
Underlying Securities were issued.
"Interest Accrual Period" shall mean for any Distribution
Date, the period from and including the preceding Distribution Date (or in the
case of the first Interest Accrual Period, from and including October 26, 2001)
to but excluding the current Distribution Date.
"Liquidation Price" shall mean the price at which the Trustee
sells the Underlying Securities.
"Liquidation Proceeds" shall have the meaning specified in the
Standard Terms.
"Maturity Date" shall have the meaning specified in Schedule I
hereto.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Ordinary Expenses" shall mean the Trustee's ordinary expenses
and overhead in connection with its services as Trustee, including the items
referred to in the definition of Ordinary Expenses in the Standard Terms.
"Prepaid Ordinary Expenses" shall be zero for this Series.
"Prospectus Supplement" shall mean the Prospectus Supplement,
dated October 12, 2001, relating to the Certificates.
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"Rating Agency" shall mean Moody's and S&P.
"Record Date" shall mean, with respect to each Distribution
Date, the day immediately preceding the related Distribution Date.
"Required Interest" shall have the meaning specified in the
Standard Terms.
"Required Percentage-Amendment" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Direction of Trustee" shall be 66-2/3% of
the aggregate Voting Rights.
"Required Percentage-Remedies" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Percentage-Removal" shall be 66-2/3% of the
aggregate Voting Rights.
"Required Rating" shall mean, in the case of Moody's, the
rating assigned to the Underlying Securities by Moody's as of the Closing Date,
and, in the case of S&P, the rating assigned to the Underlying Securities by S&P
as of the Closing Date.
"Rights Holders" shall mean the holders of the Call Rights.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies Inc.
"Series" shall mean Series 2001-4.
"Trustee Fee" shall mean the amount paid to the Trustee by the
Depositor on the Closing Date.
"Trust Property" shall mean the Underlying Securities
described on Schedule I hereto and the Certificate Account.
"Underlying Securities" shall mean $25,000,000 aggregate
principal amount of 7.00% Debentures due 2095 issued by the Underlying
Securities Issuer, as set forth on Schedule I attached hereto (subject to
Section 3(d) hereof).
"Underlying Securities Guarantor" shall mean BellSouth
Corporation.
"Underlying Securities Issuer" shall mean BellSouth
Telecommunications, Inc.
"Underlying Securities Trustee" shall mean The Bank
of New York.
"Underwriters" shall mean Bear, Xxxxxxx & Co. Inc., an
affiliate of the Depositor, Prudential Securities Incorporated, McDonald
Investments Inc., and Xxxxxxx Xxxxxx & Co. Inc.
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"Voting Rights" shall, in the entirety, unless otherwise set
forth herein, be allocated among all Certificateholders in proportion to the
then unpaid principal amounts of their respective Certificates.
"Warrant Agent" shall mean initially, U.S. Bank Trust
National Association.
"Warrant Agent Agreement" shall mean that certain Warrant
Agent Agreement, dated as of the date hereof, between the Depositor and U.S.
Bank Trust National Association, as Warrant Agent and as Trustee, as the same
may be amended from time to time.
(b) The terms listed below are not applicable to this
Series.
"Accounting Date"
"Administrative Fees"
"Advance"
"Allowable Expense Amounts"
"Basic Documents"
"Calculation Agent"
"Call Premium Percentage"
"Credit Support"
"Credit Support Instrument"
"Credit Support Provider"
"Cut-off Date"
"Eligible Expense"
"Exchange Rate Agent"
"Fixed Pass-Through Rate"
"Floating Pass-Through Rate"
"Guaranteed Investment Contract"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
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"Minimum Wire Denomination"
"Notional Amount"
"Pass-Through Rate"
"Place of Distribution"
"Purchase Price"
"Required Premium"
"Required Principal"
"Requisite Reserve Amount"
"Retained Interest"
"Sale Procedures"
"Sub-Administration Account"
"Sub-Administration Agreement"
"Sub-Administration Agent"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. The Trust created hereby
shall be known as the "Trust Certificates (TRUCs), Series 2001-4 Trust." The
Certificates evidencing certain undivided ownership interests therein shall be
known as "Trust Certificates (TRUCs), Series 2001-4." The Certificates shall
consist of the Class A-1 Certificates (the "Certificates").
(a) The Class A-1 Certificates shall be held through the Depository in
book-entry form and shall be substantially in the form attached hereto as
Exhibit A-1. The Class A-1
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Certificates shall be issued in denominations of $25. Except as provided in the
Standard Terms and in paragraph (d) in this Section, the Trust shall not issue
additional Certificates or incur any indebtedness.
(b) The Class A-1 Certificates have an initial aggregate Certificate
Principal Amount of $25,000,000.00.
(c) The holders of the Class A-1 Certificates will be entitled to receive
on each Distribution Date the interest, if any, received on the Underlying
Securities, to the extent necessary to pay interest at a rate of 7.00% per annum
on the outstanding Certificate Principal Amount of the Class A-1 Certificates.
On December 1, 2001, the Trustee will pay to the Depositor the amount of
interest accrued on the Underlying Securities from June 1, 2001 to but not
including the Closing Date, to the extent such amount is paid on the Underlying
Securities on such date (and to the extent that the amount of such interest
accrued on the Underlying Securities from the Closing Date to but not including
December 1, 2001 has been fully paid).
(d) The Depositor may sell to the Trustee additional Underlying Securities
on any date hereafter upon at least 3 Business Days notice to the Trustee and
upon (i) satisfaction of the Rating Agency Condition and (ii) delivery of an
Opinion of Counsel to the effect that the sale of such additional Underlying
Securities will not materially increase the likelihood that the Trust would fail
to qualify as a grantor trust under the Code or cause the Trust to be required
to register as an "investment company" as such term is defined in the Investment
Company Act of 1940. Upon such sale to the Trustee, the Trustee shall deposit
such additional Underlying Securities in the Certificate Account, and shall
authenticate and deliver to the Depositor or its order Class A-1 Certificates in
a Certificate Principal Amount, that is an integral multiple of $25.00 and is at
least equal to 100.000000% of the principal amount of such additional Underlying
Securities. Any such additional Certificates authenticated and delivered or
otherwise issued shall have the same terms and rank pari passu with the
corresponding classes of Certificates previously issued in accordance with this
Series Supplement.
Section 4. Trust Certificates. The Trustee hereby acknowledges receipt, on
or prior to the Closing Date, of:
(i) the Underlying Securities set forth on the Underlying
Securities Schedule; and
(ii) all documents required to be delivered to the Trustee
pursuant to Section 2.01 of the Standard Terms.
Section 5. Distributions. (a) On each applicable Distribution Date, the
Trustee shall apply Available Funds in the Certificate Account as follows in the
following order of priority:
(i) the Trustee will pay the interest portion of Available Funds:
(1) first, to the Trustee, as reimbursement for any
Extraordinary Trust Expenses incurred by the Trustee in
accordance with Section 6(b) below and approved by
Certificateholders representing 100% of the Voting Rights with
respect thereto;
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(2) second, to the holders of the Class A-1 Certificates,
interest accrued and unpaid on such Class; and
(3) [reserved]; and
(ii) the Trustee will pay the principal portion of Available
Funds:
(1) first, to the Trustee, as reimbursement for any
remaining Extraordinary Trust Expenses incurred by the Trustee in
accordance with Section 6(b) below and approved by
Certificateholders representing 100% of the Voting Rights with
respect thereto; and
(2) second, to the holders of the Class A-1 Certificates
until the Certificate Principal Amount thereof has been reduced
to zero.
(b) Notwithstanding any other provision hereof (other than Section 3(c)) if
the Underlying Securities are redeemed, prepaid or liquidated in whole or in
part for any reason (including, without limitation, an Event of Default) other
than at their maturity, the Trustee shall apply Available Funds on the related
Distribution Date (or Special Distribution Date, if applicable) in the same
order of priority as is set forth in Section 5(a). In the event of any payment
on any such date of less than all of the outstanding Class A-1 Certificates, the
Class A-1 Certificates to be retired will be selected by the Trustee or DTC by
lot.
(c) Notwithstanding any other provision hereof, in the event of the
occurrence of (i) a payment default on the Underlying Securities or (ii) an
acceleration of the date of maturity of the Underlying Securities in connection
with a default thereon, the holders of the Certificates representing a majority
of the Voting Rights on the Class A-1 Certificates will be entitled to direct
the Trustee in any such proceeding or direct the Trustee to sell the Underlying
Securities. If the Trustee is directed to sell the Underlying Securities, the
Trustee shall solicit bids for the sale of the Underlying Securities with
settlement thereof on or before the third (3rd) Business Day after such sale
from three leading dealers in the relevant market. Any of the following dealers
(or their successors) shall be deemed to qualify as leading dealers: (1) Credit
Suisse First Boston Corporation, (2) Xxxxxxx, Xxxxx & Co., (3) Xxxxxx Brothers
Inc., (4) Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (5) Bear, Xxxxxxx
& Co. Inc., and (6) Xxxxxxx Xxxxx Xxxxxx Inc. The Trustee shall not be
responsible for the failure to obtain a bid so long as it has made reasonable
efforts to obtain bids. If a bid for the sale of the Underlying Securities has
been accepted by the Trustee but the sale has failed to settle on the proposed
settlement date, the Trustee shall request new bids from such leading dealers.
In the event of such sale or of an acceleration and a corresponding payment on
the Underlying Securities, the Trustee shall distribute the proceeds to the
Certificateholders no later than two Business Days after the receipt of
immediately available funds in accordance with Section 5(b) hereof.
(d) In the event that the Trustee receives non-cash property in respect of
the Underlying Securities as a result of a payment default on the Underlying
Securities (including from the sale thereof), the Trustee will promptly give
notice to the Depositary, or for any Certificates which are not then held by DTC
or any other depository, directly to the registered holders of the Certificates
then outstanding and unpaid. Such notice shall state that, not later
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than 30 days after the receipt of such moneys or other property, the Trustee
will allocate and distribute such property to the holders of Class A-1
Certificates then outstanding and unpaid, (after deducting the costs incurred in
connection therewith) in accordance with the priorities of distribution
established pursuant to Section 5(a) hereof. Property other than cash will be
liquidated by the Trustee, and the proceeds thereof distributed in cash, only to
the extent necessary to avoid distribution of fractional securities to
Certificateholders. In-kind distribution of such property to Certificateholders
will be deemed to reduce the principal amount of Certificates on a
dollar-for-dollar basis.
(e) Subject to Section 9(f) hereof, to the extent Available Funds are
insufficient to make any required distributions due to the Class A-1
Certificates on any Distribution Date, any shortfall will be carried over and
will be distributed on the next Distribution Date (or date referred to in
Section 5(f) hereof) on which sufficient funds are available on the Available
Funds to pay such shortfall.
(f) If a payment with respect to the Underlying Securities is made to the
Trustee after the payment date of the Underlying Securities on which such
payment was due, then the Trustee will distribute any such amounts received on
the next occurring Business Day (a "Special Distribution Date") as if the funds
had constituted Available Funds on the Distribution Date immediately preceding
such Special Distribution Date; provided, however, that the Record Date for such
Special Distribution Date shall be five Business Days prior to the day on which
the related payment was received from the Underlying Securities Trustee.
(g) [Reserved].
(h) Notwithstanding Section 3.12 of the Standard Terms, if the Underlying
Securities Guarantor ceases to file periodic reports as required under the
Exchange Act, the Depositor shall within 5 Business Days instruct the Trustee to
sell the Underlying Securities and distribute the proceeds of such sale to the
Certificateholders in accordance with the order of priority set forth in Section
5(a) provided, however, the Depositor shall not instruct the Trustee to
distribute or sell the Underlying Securities pursuant to this clause unless the
Underlying Securities Guarantor has either (x) stated in writing that it intends
permanently to cease filing reports required under the Exchange Act or (y)
failed to file any required reports for one full calendar year.
Section 6. Trustee's Fees. (a) As compensation for its services hereunder,
the Trustee shall be entitled to the Trustee Fee as agreed to separately in a
fee agreement among the Depositor and the Trustee. The Trustee Fee shall be paid
by the Depositor and not from Trust Property. The Trustee shall bear all
Ordinary Expenses. Failure by the Depositor to pay such amount shall not entitle
the Trustee to any payment or reimbursement from the Trust, nor shall such
failure release the Trustee from the duties it is required to perform under the
Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust Property
unless all the Certificateholders of each of Class A-1 Certificates then
outstanding have voted to require the Trustee to incur such Extraordinary
Expenses. The Trustee may incur other Extraordinary Expenses if any lesser
percentage of the Certificateholders requesting such action pursuant
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hereto reimburse the Trustee for the cost thereof from their own funds in
advance. If Extraordinary Expenses are not approved unanimously as set forth in
the first sentence of this Section 6(b), such Extraordinary Expenses shall not
be an obligation of the Trust, and the Trustee shall not file any claim against
the Trust therefor notwithstanding failure of certificateholders to reimburse
the Trustee.
Section 7. Redemption Upon Exercise of Call Warrants.
(a) [Reserved].
(b) On any Call Date, Class A-1 Certificates shall be redeemed at par plus
accrued and unpaid interest on the Class A-1 Certificates upon receipt by the
Trustee of the Call Price on or prior to such Call Date. On any Call Date on
which one or more of the Rights Holders duly exercises less than all of the Call
Warrants then outstanding, the Class A-1 Certificates shall be redeemed in part
and the Class A-1 Certificates to be redeemed will be selected by the Trustee or
DTC by lot and will be paid for on the Call Date.
(i) Any Rights Holder, in order for it to exercise its Call Rights in
whole or in part, shall provide notice to the Trustee (a "Call
Request") no more than 60 or less than 35 days prior to any Call
Date, that it is exercising its Call Rights on such Call Date,
indicating the principal amount of Underlying Securities as to
which such call will be exercised.
(ii) Deliveries of the Underlying Securities purchased on any Call
Date by a Rights Holder (the "Purchaser") will only be made
against payment by the Purchaser of the Call Price with respect
to such Underlying Securities in immediately available funds.
Such payment must occur no later than 10:00 a.m. New York City
time on the Call Date. In the event that the Purchaser fails to
make such payment by such time (a "Purchase Default"), the sale
shall be voided and the exercise of Call Rights will be deemed
not to be effective with respect to such Call Date, and the
Certificates and the Call Rights shall continue to remain
outstanding. Subject to receipt of the Call Price as aforesaid on
any Call Date, the Trustee shall pay the corresponding redemption
price set forth in clause (b), above, to the Class A-1
Certificateholders on such Call Date.
(iii)The Trustee shall not consent to any amendment or modification
of this Agreement (including the Standard Terms) which would
alter the timing or amount of any payment of the Call Price
without the prior written consent of the Rights Holders.
(iv) The Trustee shall not be obligated to determine whether an
exercise of Call Rights complies with the applicable provisions
for exemption under Rule 3a-7 of the Investment Company Act of
1940, as amended, or the rules or regulations promulgated
thereunder.
(v) This Section 7 shall not provide the Rights Holders with a lien
against, an interest in or a right to specific performance with
respect to the Underlying Securities.
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(vi) The Rights Holder shall initially be the Depositor and such Call
Rights may be transferred to one or more holders. However, the
Trustee is under no obligation to recognize any notice of
transfer unless it is signed by the transferor and the
transferee.
(vii) Any exercise of Call Rights by a Rights Holder must be in a
minimum principal amount of Underlying Securities equal to
$500,000 and integral multiples of $500,000 in excess thereof.
(viii) Any exercise of Call Rights by a Rights Holder must include a
certification by the Rights Holder that it is solvent as of the
Call Date.
Section 8. Events of Default.
Within 30 days of the occurrence of an Event of Default actually known to
the Trustee, the Trustee will give notice to the Certificateholders and the
Rating Agency, 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 of or interest on any of the Underlying Securities,
the Trustee will be protected in withholding such notice from the
Certificateholders if in good faith it determines that the withholding of such
notice is in the interest of the Certificateholders.
Section 9. Miscellaneous.
(a) The provisions of Section 4.04, Advances, of the Standard Terms shall
not apply to the Series 2001-4 Certificates.
(b) The provisions of Section 4.07, Optional Exchange, of the Standard
Terms shall not apply to the Series 2001-4 Certificates.
(c) The Trustee shall simultaneously forward reports to Certificateholders
pursuant to Section 4.03 of the Standard Terms and to the New York Stock
Exchange.
(d) Except as expressly provided herein, the Certificateholders shall not
be entitled to terminate the Trust or cause the sale or other disposition of the
Underlying Securities.
(e) The provisions of Section 3.07(d) of the Standard Terms shall not apply
to the Series 2001-4 Certificates.
(f) If the Trustee has not received payment with respect to a Collection
Period on the Underlying Securities on or prior to the related Distribution
Date, such distribution will be made promptly upon receipt of such payment. No
additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Certificateholders, pro rata in
proportion to their respective entitlements to interest.
(g) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Losses (as defined in the Standard Terms).
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(h) The Trust may not engage in any business or activities other than in
connection with, or relating to, the holding, protecting and preserving of the
Trust Property and the issuance of the Certificates, and other than those
required or authorized by the Trust Agreement or incidental and necessary to
accomplish such activities. The Trust may not issue or sell any certificates or
other obligations other than the Certificates or otherwise incur, assume or
guarantee any indebtedness for money borrowed.
(i) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee may be removed upon 60 days prior written notice delivered by the
holders of Class Certificates representing the Required Percentage-Removal.
(j) In the event that the Internal Revenue Service challenges the
characterization of the Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application of
Subchapter K of the Code and is hereby empowered to execute such forms on behalf
of the Certificateholders.
(k) Notwithstanding anything in the Standard Terms to the contrary, the
Trustee, upon written direction by the Depositor, will execute the Certificates.
(l) In relation to Section 7.01(f) of the Standard Terms, any periodic
reports filed by the Trustee pursuant to the Securities and Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder, in
accordance with the customary practices of the Depositor, need not contain any
independent reports.
(m) Notwithstanding anything in the Trust Agreement to the contrary, the
Trustee will have no recourse to the Underlying Securities.
(n) The Trust will not merge or consolidate with any other entity without
confirmation from each Rating Agency that such merger or consolidation will not
result in the qualification, reduction or withdrawal of its then-current rating
on the Certificates.
(o) All directions, demands and notices hereunder or under the Standard
Terms shall be in writing and shall be delivered as set forth below (unless
written notice is otherwise provided to the Trustee).
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If to the Depositor, to:
Bear Xxxxxxx Depositor Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Section 10. Governing Law. THIS SERIES SUPPLEMENT AND THE TRANSACTIONS
DESCRIBED HEREIN SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS PROVISIONS
THEREOF.
Section 11. Counterparts. This Series Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one and the same instrument.
Section 12. Termination of the Trust. The Trust shall terminate upon the
earliest to occur of (i) the payment in full at maturity or sale by the Trust
after a payment default on or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders; (ii) the payment in full of the Class A-1
Certificates upon exercise of all of the issued Call Rights under Section 7(b);
and (iii) the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Section 13. Sale of Underlying Securities. In the event of a sale of the
Underlying Securities pursuant to Section 5(d) hereof, the Liquidation Proceeds,
if any, shall be deposited into the Certificate Account for distribution to the
Class A-1 Certificateholders pursuant to Section 5(a). The Trustee shall only
deliver the Underlying Securities to the purchaser of such Underlying Securities
against payment in same day funds deposited into the Certificate Account.
Section 14. Amendments. Notwithstanding anything in the Trust Agreement to
the contrary, in addition to the other restrictions on modification and
amendment contained therein, the Trustee shall 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 any class of Certificates without the
consent of the holders of 100% of such class of Certificates; provided, however,
that no such amendment or modification will be permitted which would alter the
status of the Trust as a grantor trust for federal income tax purposes. Further,
no amendment shall be permitted which would adversely affect in any material
respect the interests of the Class A-1 Certificateholders unless the Rating
Agency Condition is satisfied with respect to such amendment.
Section 15. Voting of Underlying Securities, Modification of Indenture. The
Trustee, as holder of the Underlying Securities, has the right to vote and give
consents and waivers in respect of the Underlying Securities as permitted by the
Depository and except as otherwise limited by the Trust Agreement. In the event
that the Trustee receives a request from the Depository, the Underlying
Securities Trustee or the Underlying Securities Issuer for its consent to any
amendment, modification or waiver of the Underlying Securities, the Indenture or
any other document thereunder or relating thereto, or receives any other
solicitation for any action with respect to the Underlying Securities, the
Trustee shall mail a notice of such proposed amendment, modification, waiver or
solicitation to each Certificateholder of record as of such date. The Trustee
shall request instructions from the Certificateholders as to whether or not to
consent to or vote to accept such amendment, modification, waiver or
solicitation. The Trustee
14
shall consent or vote, or refrain from consenting or voting, in the same
proportion (based on the relative outstanding principal balances of the
Certificates) as the Certificates were actually voted or not voted by the
Certificateholders thereof as of a date determined by the Trustee prior to the
date on which such consent or vote is required, after weighing the votes of the
Certificateholders; provided, however, that, notwithstanding anything in the
Trust Agreement to the contrary, the Trustee shall at no time vote on or consent
to any matter (i) unless such vote or consent would not (based on an opinion of
counsel) alter the status of the Trust as a grantor trust for federal income tax
purposes or result in the imposition of tax upon the Certificateholders, (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 a default under the Underlying
Securities or an event which with the passage of time would become an event of
default under the Underlying Securities and with the unanimous consent of all
outstanding Class A-1 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 Certificateholders representing 100% of the Voting Rights with
respect thereto. The Trustee shall have no liability for any failure to act
resulting from Certificateholders' late return of, or failure to return,
directions requested by the Trustee from the Certificateholders.
In the event that 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 A-1 Certificateholders of such
offer promptly. The Trustee must reject any such offer unless the Trustee is
directed by the affirmative vote of the Certificateholders representing 100% of
the Voting Rights with respect thereto 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 Class A-1 Certificateholders representing 51% or more of the Voting
Rights with respect thereto, 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.
15
IN WITNESS WHEREOF, the parties hereto have caused this Series Supplement
to be duly executed by their respective authorized officers as of the date first
written above.
BEAR XXXXXXX DEPOSITOR INC.,
as Depositor
By: /s/ Xxxxxxx Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx Xxxxxx
Title: President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee on behalf
of the Trust Certificates (TRUCs)
Series 2001-4 Trust
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Trust Officer
16
SCHEDULE I
SERIES 2001-4
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: 7.00% Debentures due December 1, 2095.
Underlying Securities Issuer: BellSouth Telecommunications, Inc.
CUSIP Number: 079867 AP2
Principal Amount Deposited: $25,000,000.
Original Issue Date: December 1, 1995.
Principal Amount of
Underlying Securities
Originally Issued: $500,000,000.
Maturity Date: December 1, 2095
Principal Payment Date: December 1, 2095
Interest Rate: 7.00%.
Interest Payment Dates: June 1 and December 1 or if not a business
day, the next business day.
Underlying Securities Record Dates: The day immediately preceding each
Distribution Date.
Security The Underlying Securities are unsecured
obligations of the Underlying Securities
Issuer.
Redemption/Put/Other Features None.
Form of Security Book-entry debt securities with DTC
listed on the New York Stock Exchange.
Underlying Securities Trustee The Bank of New York.
Ratings "A+" by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx
Companies, Inc. and "Aa2" by Xxxxx'x
Investors Service, Inc."
Call Warrants The Underlying Securities will be
acquired by the Trust subject to
Call Warrants entitling the
holders thereof to purchase the
Underlying
17
Securities from the Trust, in whole or in
part, at the Call Price on any Business
Day on or after October 26, 2006.
18
FORM OF CLASS A-1 TRUST CERTIFICATE
NUMBER 1 1,000,000 $25 PAR CERTIFICATES
CUSIP NO. 89826 U108
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A PROPORTIONATE UNDIVIDED BENEFICIAL OWNERSHIP
INTEREST IN THE TRUST AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN,
AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE OR THE TRUST ASSETS ARE INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
BEAR XXXXXXX DEPOSITOR INC.
1,000,000 $25 PAR
TRUST CERTIFICATES (TRUCs),
SERIES 2001-4
7.00% INTEREST RATE
evidencing a proportionate undivided beneficial ownership interest in the Trust,
as defined below, the property of which consists principally of $25,000,000
aggregate principal amount of 7.00% Debentures due December 1, 2095, issued by
BellSouth Telecommunications, Inc. and all payments received thereon (the "Trust
Property"), deposited in trust by Bear Xxxxxxx Depositor Inc., (the
"Depositor").
THIS CERTIFIES THAT CEDE & CO. is the registered owner of $25,000,000 DOLLARS
nonassessable, fully-paid, proportionate undivided beneficial ownership interest
in the Trust Certificates (TRUCs), Series 2001-4 Trust, formed by the Depositor.
i
The Trust was created pursuant to a Standard Terms for Trust Agreements, dated
as of June 19, 2001 (the "Standard Terms"), between the Depositor and U.S. Bank
Trust National Association, a national banking association, not in its
individual capacity but solely as Trustee (the "Trustee"), as supplemented by
the Series Supplement, Series 2001-4, dated as of October 26, 2001 (the "Series
Supplement" and, together with the Standard Terms, the "Trust Agreement"),
between the Depositor and the Trustee. This Certificate does not purport to
summarize the Trust Agreement and reference is hereby made to the Trust
Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee with respect hereto. A copy of the Trust Agreement
may be obtained from the Trustee by written request sent to the Corporate Trust
Office. Capitalized terms used but not defined herein have the meanings assigned
to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as the
"Trust Certificates (TRUCs), Series 2001-4, Class A-1" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The Trust Property consists of: (i) Underlying
Securities described in the Trust Agreement; (ii) all payments on or collections
or other proceeds in respect of the Underlying Securities accrued on or after
October 26, 2001 and until, with respect to any portion of the Underlying
Securities as to which the Call Warrants are duly exercised in accordance with
the Trust Agreement, the payment of the related Call Price and the completion of
such exercise; (iii) the Call Warrants and any proceeds thereof; and (iv) all
funds from time to time deposited with the Trustee relating to the Certificates,
together with any and all income, proceeds and payments with respect thereto.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distributions) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, distributions
will be made on each Distribution Date, to the Person in whose name this
Certificate is registered on the applicable Record Date, in an amount equal to
such Certificateholder's proportionate undivided beneficial ownership interest
in the amount required to be distributed to the Holders of the Certificates on
such Distribution Date. The Record Date applicable to any Distribution Date is
the close of business on the day immediately preceding such Distribution Date
(whether or not a Business Day). If a payment with respect to the Underlying
Securities is made to the Trustee after the date on which such payment was due,
then the Trustee will distribute any such amounts received on the next occurring
Business Day (a "Special Distribution Date").
Each Certificateholder, by its acceptance of a Certificate, covenants and agrees
that such Certificateholder will not at any time institute against the Trust, or
join in any institution against the Trust of, any bankruptcy proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates or the Trust Agreement.
Distributions made on this Certificate will be made as provided in the Trust
Agreement by the Trustee by wire transfer in immediately available funds, or
check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon, except that with respect to Certificates registered on the
ii
Record Date in the name of the nominee of the Clearing Agency (initially, such
nominee shall be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the Corporate Trust Office or such other
location as may be specified in such notice.
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not entitle
the Holder hereof to any benefit under the Trust Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
iii
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
as of the date set forth below.
TRUST CERTIFICATES (TRUCs),
SERIES 2001-4 TRUST
By: U.S. BANK TRUST
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By: ________________________________________________
Authorized Signatory
Dated: October 26, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is on one of the Trust Certificates (TRUCs), Series 2001-4, described in
the Trust Agreement referred to herein.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as
Trustee,
By: ________________________________
Authorized Signatory
iv
(REVERSE OF CERTIFICATE)
The Certificates are limited in right of distribution to certain payments and
collections respecting the Underlying Securities, all as more specifically set
forth herein and in the Trust Agreement. The registered Holder hereof, by its
acceptance hereof, agrees that it will look solely to the Trust Property (to the
extent of its rights therein) for distributions hereunder.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent of
the holders of Class A-1 Certificates in the manner set forth in the Series
Supplement and the Standard Terms. Any such consent by the Holder of this
Certificate (or any predecessor Certificate) shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent in made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in denominations of
$25.
As provided in the Trust Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar maintained by the Trustee in
the Borough of Manhattan, the City of New York, duly endorsed by or accompanied
by an assignment in the form below and by such other documents as required by
the Trust Agreement, and thereupon one or more new Certificates of the same
class in authorized denominations evidencing the same principal amount will be
issued to the designated transferee or transferees. The initial Certificate
Registrar appointed under the Trust Agreement is U.S. Bank Trust National
Association.
No service charge will be made for any registration of transfer or exchange, but
the Trustee may require exchange of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
It is the intention of the parties to the Trust Agreement that the Trust created
thereunder shall constitute a fixed investment trust for federal income tax
purposes under Treasury Regulation Section 301.7701-4, and the Certificateholder
agrees to treat the Trust, any distributions therefrom and its beneficial
interest in the Certificates consistently with such characterization.
The Trust and the obligations of the Depositor and the Trustee created by the
Trust Agreement with respect to the Certificates shall terminate upon the
earliest to occur of (i) the payment in full at maturity or sale by the Trust
after a payment default or an acceleration or other early payment of the
Underlying Securities and the distribution in full of all amounts due to the
Class A-1 Certificateholders; (ii) the payment in full of the Class A-1
Certificates upon exercise of all of
v
the issued Call Rights under Section 7(b) of the Series Supplement; and (iii)
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
An employee benefit plan subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), a plan described in Section 4975(e) of the Code,
an entity whose underlying assets include plan assets by reason of any such
plan's investment in the entity, including an individual retirement account or
Xxxxx plan (any such, a "Plan") may purchase and hold Certificates if the Plan
can represent and warrant that its purchase and holding of the Certificates
would not be prohibited under ERISA or the Code.
vi
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ___________________ ____ Attorney to transfer said
Certificate on the books of the Certificate Register, with full power of
substitution in the premises.
Dated:
*
Signature Guaranteed:
*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Signatures must be guaranteed by
an "eligible guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Certificate Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
vii
