EXHIBIT 4.1
Series Supplement
Corporate Bond-Backed Trust, Series 1999-BellSouth-1
between
Southpoint Structured Assets, Inc.,
as Depositor
and
Bank One, West Virginia, N.A.,
as Trustee
Corporate Bond-Backed Certificates
Series 1999-BellSouth-1
Dated as of May 11, 1999
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TABLE OF CONTENTS
Section 1. Incorporation of Standard Terms................................................... 2
Section 2. Definitions....................................................................... 2
Section 3. Designation of Trust and Certificates............................................. 2
Section 5. Retained Interests................................................................ 2
Section 5. [Reserved]........................................................................ 2
Section 6. Satisfaction of Conditions to Initial Execution and Delivery of Trust
Certificates..................................................................... 2
Section 7. Distributions..................................................................... 2
Section 8. Trustee's Fees.................................................................... 2
Section 10. Events of Default................................................................. 2
Section 11. Assignment of Call Warrants and Retained Interests................................ 2
Section 12. Information to Warrantholders and Holders of Retained Interests................... 2
Section 13. Miscellaneous..................................................................... 2
Section 14. Notices........................................................................... 2
Section 15. Governing Law..................................................................... 2
Section 16. Counterparts...................................................................... 2
Schedule I Underlying Securities Schedule
Schedule II Description of the Retained Interest
Exhibit A Standard Terms for Trust Agreements
Exhibit B Form of Certificate
Exhibit C Form of Assignment for Retained Interest
Exhibit D Form of Transferee Letter for Retained Interest
CORPORATE BOND-BACKED CERTIFICATES
SERIES SUPPLEMENT
SERIES 1999-BELLSOUTH-1
Series Supplement, Series 1999-BellSouth-1, dated as of May 11, 1999 (the
"Series Supplement"), by and between Southpoint Structured Assets, Inc., as
Depositor (the "Depositor"), and Bank One, West Virginia, N.A., as Trustee (the
"Trustee").
WITNESSETH
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
November 1, 1996 (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 BellSouth Security set forth
on Schedule I hereto into the Trust (exclusive of the Retained Interest);
Whereas, in connection with the creation of the Trust, and the deposit
therein of the BellSouth Security it is desired to provide for (i) the issuance
of the Certificates (the "Certificates") evidencing undivided interests in the
Trust and (ii) the retention by the Depositor of the Retained Interest (the
"Retained Interest") evidencing the right to receive a portion of the interest
payments made on the BellSouth Security; 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 Trusts;
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. All of the provisions of the
Standard Terms, a copy of which is attached hereto as Exhibit A, are hereby
incorporated herein by reference in their entirety and this 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 transactions described herein.
Section 2. Definitions. Except as otherwise specified herein or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below for all purposes under this Series Supplement.
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Standard Terms.
"Available Funds" shall mean the sum of all amounts received on or with
respect to the BellSouth Security (including investment income on Eligible
Investments associated with the investment of any funds in the Trust) during the
preceding Collection Period.
"Certificates" shall mean those certificates in substantially the form set
forth in Exhibit B hereto.
"Closing Date" shall mean May 11, 1999.
"Collection Period" shall mean, (i) with respect to each June 15
Distribution Date, the period beginning on the day after the December 15
Distribution Date of the previous year and ending on such June 15 Distribution
Date, inclusive, except for the June 15, 1999, Distribution Date, as to which
the Collection Period shall be the period beginning on Closing Date and ending
on such June 15, 1999, Distribution Date, inclusive and, (ii) with respect to
each December 15 Distribution Date, the period beginning on the day after the
June 15 Distribution Date of that year and ending on such December 15
Distribution Date, inclusive; provided, however, that clauses (i) and (ii) shall
be subject to Section 13(f) hereof.
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"Corporate Trust Office" shall mean the office of Bank One West Virginia,
N.A. located at 000 Xxxxxxxx Xxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx
00000, Attention: Corporate Trust Department.
"Currency" shall mean United States dollars.
"Cut-off Date" shall mean May 11, 1999.
"Deceased Holder" shall mean a deceased person who was, during his
lifetime, entitled to substantially all of the beneficial interests of ownership
of a Certificate. For purposes of this definition, a Certificate held by tenants
by the entirety, joint tenants or tenants in common is considered to be held by
a single holder. However, a Certificate held by a trustee is considered to be
held by each beneficiary of the trust to the extent of such beneficiary's
beneficial interest therein. Also for purposes of these limitations, the death
of a tenant by the entirety, joint tenant or tenant in common will be deemed to
be the death of the holder of the Certificate and the entire principal amount of
the Certificate so held will be subject to priority in redemption, and the death
of a beneficiary of a trust will be deemed to be the death of the holder of a
Certificate held by the trustee of the trust to the extent of such beneficiary's
beneficial interest in such Certificate. A Deceased Holder will be deemed to be
the holder of such Certificate to the extent of his beneficial interest therein,
regardless of the registered Certificateholder, if such beneficial interest can
be established to the satisfaction of the Trustee. Such beneficial interest
will be deemed to exist in typical cases of street name or nominee ownership,
ownership by a trustee, ownership under the Uniform Gifts to Minors Act and
community property or other joint ownership arrangements between a husband and
wife and in trust arrangements and certain other arrangements where a person has
substantially all of the Certificateholdership interest in the Certificate
during his or her lifetime. Beneficial interests shall include the power to
sell, transfer or otherwise dispose of a Certificate and the right to receive
the proceeds therefrom, as well as interest and principal payable with respect
thereto.
"Depository" shall mean The Depository Trust Company.
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"Distribution Date" shall mean June 15 and December 15 of each year (or if
such date is not a Business Day, the next succeeding Business Day), commencing
on June 15, 1999 and ending on the earlier of the Final Scheduled Distribution
Date or the date that all Certificates have been redeemed.
"Eligible Account" shall have the meaning specified in the Standard Terms.
"Eligible Investments" shall any investment acceptable to the Rating Agency
as being consistent with the rating of the Certificates. Eligible Investments
must be limited to obligations or securities that mature not later than the
business day prior to the next succeeding Distribution Date.
"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 applicable grace period), and (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.
"Final Scheduled Distribution Date" shall mean June 15, 2033.
"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 the Cut-off Date) to but excluding
the current Distribution Date.
"Interest Strip" shall mean on any Distribution Date accrued but unpaid
interest equal to the outstanding principal amount of the BellSouth Security
multiplied by the difference between the 7 1/2% interest rate on the BellSouth
Security and the then current Pass-Through Rate for the Certificates minus an
amount equal to the Ordinary Expenses due and payable for such Distribution
Date.
"Ordinary Expenses" shall mean the compensation due the Trustee for
Ordinary Expenses (as defined in the Standard Terms), which shall be fixed in an
amount of $600 per Distribution Date and paid as set forth in Section 7 hereof.
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"Pass-Through Rate" shall mean from issuance through June 14, 2003, 6.25%
per annum; from June 15, 2003, through December 14, 2008, 6.75% per annum; and
from December 15, 2008, through June 2033, 7.25% per year.
"Prospectus Supplement" shall mean the Prospectus Supplement, dated May 6,
1999, relating to the Certificates.
"Rating Agency" shall mean S&P.
"Record Date" shall mean the day immediately preceding each Distribution
Date.
"Redemption Date" shall mean a Distribution Date.
"Required Rating" shall mean "AAA," as assigned by S&P as of the Closing
Date.
"Retained Interest" shall mean the right to receive, on any Distribution
Date on and after the date that the principal amount of the Certificates equals
the principal amount of the BellSouth Security, the Interest Strip. Collections
in respect of the Retained Interest shall be deposited in the Certificate
Account for the Certificates.
"Retained Interestholder" shall mean initially the Depositor and upon
assignment thereof the holder of the Retained Interest.
"S&P" shall mean Standard & Poor's Ratings Services, a subsidiary of The
XxXxxx-Xxxx Companies, Inc.
"Series" shall mean Series 1999-BellSouth-1.
"Trust Property" shall mean (i) the Underlying Security described on
Schedule I (exclusive of the Retained Interest) hereto; (ii) all payments on or
collections in respect of such Underlying Security accrued on or after the Cut-
off Date (exclusive of the Retained Interest) together with any proceeds
thereof; and (iii) all funds from time to time deposited with the Trustee
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relating to the Certificates and any investments thereof, together with any and
all income, proceeds and payments with respect thereto.
"BellSouth Security" or "Underlying Security" shall mean the BellSouth
Telecommunications, Inc. Forty Year 7 1/2% Debentures listed on the Underlying
Securities Schedule attached hereto as Schedule I.
"Underlying Securities Issuer" shall mean BellSouth Telecommunications,
Inc.
"Voting Rights" shall, in the entirety, be allocated separately to the
Certificateholders in proportion to the then outstanding principal balances of
the Underlying Securities and their respective Certificates, respectively.
Section 3. Designation of Trust and Certificates. (a) The Trust created
hereby shall be known as the "Corporate Bond-Backed Trust, Series
1999-BellSouth-1" and the Certificates evidencing certain undivided ownership
interests therein shall be known as "Corporate Bond-Backed Certificates, Series
1999-BellSouth-1."
(b) It is the intention of all of the parties hereto that the transfer of
the Trust Property hereunder and under the Standard Terms shall constitute a
sale and the Trust created hereunder and thereunder shall constitute a fixed
investment trust for federal income tax purposes under Treasury Regulation
Section 301.7701-4 and a grantor trust under the Internal Revenue Code of 1986,
as amended, and all parties hereto and thereto agree to treat the Trust, any
distributions therefrom and the beneficial interest in the Certificates
consistently with such characterization. The provisions of this Trust Agreement
shall be interpreted consistently with such characterization.
(c) The Certificates shall be held through the Depository in book-entry
form and shall be substantially in the form attached hereto as Exhibit B. The
Certificates shall be issued in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. Except as provided in the Standard
Terms, the Trust shall not issue additional Certificates or incur any
indebtedness.
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Section 4. Redemption. (a) Redemption Fund. The Trustee shall establish
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a separate Account to be designated the "Series 1999-BellSouth-1 Redemption
Fund" (the "Redemption Fund"). Moneys on deposit in the Redemption Fund shall be
held by the Trustee under the Trust Agreement and paid out by the Trustee solely
as provided in Section 4(b) herein; provided, however, that after such payment
as provided in Section 4(b), any moneys remaining in the Redemption Fund shall
be promptly released and distributed to the Depositor.
(b) Payments from Redemption Fund. On each Redemption Date, the Trustee
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shall apply, after deposit of funds, if any, under Section 7 hereof, available
funds in the Redemption Fund as follows:
(i) to redeem Certificates beneficially owned by the estates of
Deceased Holders, subject to a limitation of $100,000 principal
amount of Certificates beneficially owned by any one Deceased
Holder;
(ii) to redeem Certificates registered in the name of other
Certificateholders, subject to a limitation of $10,000 principal
amount of Certificates beneficially owned by any one
Certificateholder;
(iii) to redeem Certificates beneficially owned by the estates of Deceased
Holders in excess of such $100,000 limitation;
(iv) to redeem Certificates registered in the name of other
Certificateholders in excess of such $10,000 limitation;
(v) to redeem Certificates pursuant to the mandatory redemption
provisions of Section 4(c) hereof; and
(vi) on the date that all Certificates have been redeemed, the remainder
of funds to the Depositor.
provided, however, that (1) redemptions of Certificates will be made only
in principal amounts of $1,000 or integral multiples thereof and (2) redemptions
will be made only to the extent funds are available in the
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Redemption Fund as of such Redemption Date. Within any of the above categories,
Certificates will be redeemed in the order of receipt of requests for
redemption. The Trustee may establish such procedures as it deems fair and
equitable to establish the order of receipt of requests received on the same
day. The redemption price for the Certificates so redeemed will be 100% of the
principal amount thereof, plus accrued and unpaid interest to the Redemption
Date.
(c) Mandatory Redemption. In the case of redemption of less than all
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Certificates at the time outstanding, the Certificates to be redeemed shall be
selected by random lot. On the first Business Day of the month in which the
Redemption Date occurs (each, an "Accounting Date"), the Trustee will determine
the amount of Certificates for which requests for redemption have been accepted
through the related Tender Date (as hereinafter defined) and, thereby, determine
the principal amount, if any, of Certificates that will be subject to mandatory
redemption on the next Redemption Date. The Trustee shall notify DTC, and DTC
will allocate any amounts of Certificates to be subject to mandatory redemption
among DTC Participants by random lot in accordance with DTC's rules and
procedures, based upon the assumption that each DTC Participant holds individual
$1,000 Certificates aggregating the full amount of that DTC Participant's
holdings. DTC shall notify those DTC Participants whose holdings have been
selected for mandatory redemption on or before the Redemption Date on which
Certificates are to be redeemed. DTC Participants will then determine the
Certificateholders (or other indirect participants acting on behalf of
Certificateholders through such DTC Participants) whose Certificates have been
redeemed and will forward the mandatory redemption payment of the Certificates
to such Certificateholders or indirect participants. No notice of redemption
will be given to Certificateholders prior to the respective Redemption Dates on
which their Certificates are redeemed.
(d) Requests for redemption. Redemptions pursuant to Section 4(b)(i)-(iv)
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hereof shall only be made with respect to Certificateholders who have properly
requested redemption under this section. A request for redemption may be
initiated by delivering the following items to the Trustee on or before the last
day of the month preceding the month in which the Redemption Date occurs (each,
a "Tender Date") (1) a written request for
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redemption in form satisfactory to the Trustee by the Certificateholder, or his
legal representative, with appropriate evidence of authority; (2) notice of the
principal amount of Certificates to be redeemed or, in the case of Definitive
Certificates, the certificate or certificates representing the Certificate or
Certificates for which redemption is being requested, and (3) in the case of a
request on behalf of a Deceased Holder, appropriate evidence of death and any
tax waivers requested by the Trustee.
Subject to certain priorities of Deceased Holders and certain other
limitations, Certificates shall be redeemed in the order that timely requests
for redemption are received by the Trustee (as evidenced by the time-stamp
placed on such requests by the Trustee at the time of receipt). Requests for
redemptions received in proper form will be accepted by the Trustee only to the
extent funds are available in the Redemption Fund as described above. Requests
for redemption made after the Tender Date for a given Redemption Date, and
requests for redemption received in a timely manner but not accepted in respect
of a given Redemption Date, will be treated as requests for redemption on the
next succeeding Redemption Date and each succeeding Redemption Date thereafter
until the request is accepted or is withdrawn as described in the following
paragraph. Certificates submitted with a request for redemption will be held by
the Trustee until the request has been accepted or has been withdrawn and will
continue to bear interest until redeemed. Certificates, or portions thereof in
integral multiples of $1,000 principal amount, which have been accepted for
redemption shall become due and payable on the applicable Redemption Date and
shall cease to bear interest on such Redemption Date.
Any Certificateholder who has requested redemption may withdraw his request
at any time by causing delivery of written notice of withdrawal to the Trustee.
If such written notice has not been received on or before the Tender Date for a
given Redemption Date, the previously made redemption request will be
irrevocable with respect to the acceptance of Certificates for redemption on
such given Redemption Date.
The procedures to be used to determine the priority of requests for
redemption may be revised from time to time by the Trustee. Until redeemed
Certificates held for future redemption will continue to earn interest at the
appropriate Pass-Through Rate.
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(e) Cancelled Certificates. All Certificates that have been redeemed
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shall be cancelled by the Trustee and disposed of by the Trustee. A cancelled
Certificate shall not be reissued and a counterpart of the certificate
evidencing its disposition shall be furnished by the Trustee to the Depositor.
Section 5. Retained Interest. (a) The Trust Property does not include the
Retained Interest. The transfer and exchange of the Retained Interest shall be
administered by the Trustee on behalf of the Depositor.
(b) The Retained Interest will be uncertificated and shall be as
described in Schedule V attached hereto. The Retained Interest will be retained
by the Depositor and may be transferred by the Depositor or a Retained
Interestholder to another party in accordance with the provisions of Section 11
hereof at the sole option of the Depositor or the Retained Interestholder, as
applicable, without the consent of the Certificateholders or any other party.
The beneficial ownership interest in the Retained Interest will be recorded on
the records of the Trustee. Notwithstanding any other provision of this Trust
Agreement, the Trustee shall not agree to any amendment or modification of this
Trust Agreement (including the Standard Terms) which would adversely affect in
any material respect the holder of a Retained Interest without the consent of
such holder.
Section 6. Satisfaction of Conditions to Initial Execution and Delivery of
Trust Certificates. The Trustee hereby acknowledges receipt, on or prior to the
Closing Date, of:
(i) the Underlying Securities set forth on the Underlying
Securities Schedule; and
(ii) a letter from the Rating Agency indicating that they have
assigned the Required Rating to the Certificates.
Section 7. Distributions. (a) On each Distribution Date prior to the date
that the principal amount of the Certificates equals the principal amount of the
BellSouth Security, the Trustee shall apply Available Funds in the Certificate
Account as follows (subject to SECTION 7(c) below):
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(i) first, to the Trustee in an amount equal to the Ordinary
Expenses;
(ii) second, to the Certificateholders, the Required Interest and to
the Depositor, the Initial Accrued Interest;
(iii) third, to the Redemption Fund, the Interest Strip; and
(iii) fourth, to the Certificateholders, Required Principal, if
any.
(b) On each Distribution Date on and after the date that the
principal amount of the Certificates equals the principal amount of the
BellSouth Security, the Trustee shall apply Available Funds in the Certificate
Account as follows (subject to SECTION 7(c) below):
(i) first, to the Trustee in an amount equal to the Ordinary
Expenses;
(ii) second, to the Certificateholders, the Required Interest;
(iii) third, to the Retained Interest, the Interest Strip; and
(iii) fourth, to the Certificateholders, Required Principal, if
any.
(c) Amounts recovered in respect of the Underlying Securities
following a default by the Underlying Securities Issuer shall, to the extent
allocable to interest, be distributed in accordance with the provisions of
Section 7(a)(i), and, to the extent allocable to principal, in accordance with
the provisions of Section 7(a)(ii).
Section 8. Trustee's Fees. (a) As compensation for its services
hereunder, the Trustee shall be entitled to payment for Ordinary Expenses. The
Ordinary Expenses shall be paid to the Trustee as provided in Section 7 hereof.
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(b) Extraordinary Trust Expenses shall not be paid out of the Trust
Property unless (i) such Extraordinary Trust Expenses relate to a time when the
Underlying Securities Issuer was in default of any payment obligation under the
Underlying Securities, or (ii) Certificateholders representing 100% of the
aggregate Voting Rights of the Certificates have voted to require the Trustee to
incur such Extraordinary Trust Expenses.
Section 9. [Reserved].
Section 10. Events of Default. Within 3 Business Days of the
occurrence of an Event of Default, the Trustee will give notice to the
Certificateholders and the holders of the Retained Interest, transmitted by
facsimile communication, of all such uncured or unwaived Events of Default known
to it.
Section 11. Assignment of Retained Interest. The Retained Interestholder
may assign the Retained Interest pursuant to an assignment substantially in the
form of Exhibit C hereto. Any such assignee may enforce the assigned Retained
Interest directly against the Trustee as if such assignee had been an original
party to this Series Supplement. Notwithstanding anything else contained herein,
the Trustee shall only acknowledge and record such assignment of Retained
Interest upon receipt of a transferee letter in substantially the form of
Exhibit D hereto or an opinion of counsel acceptable to the Trustee to the
effect that such assignment does not require registration of such Retained
Interest under the Securities Act of 1933, as amended.
Section 12. Information to Holders of Retained Interests. The Trustee
shall furnish to any holder of a Retained Interest or any prospective purchasers
thereof, upon request, the information specified in, and meeting the
requirements of Rule 144A(d)(4) of the Securities Act of 1933, as amended.
Section 13. Miscellaneous. (a) The provisions of Section 3.04, 3.06 and
4.04 of the Standard Terms shall not apply to the Certificates.
(b) The provisions of Article VIII, Market Agent, of the Standard
Terms shall not apply to the Certificates.
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(c) The Trustee shall forward reports to Certificateholders pursuant
to Section 4.03 of the Standard Terms to the New York Stock Exchange.
(d) [Reserved].
(e) In any conflict between the provisions of the Prospectus
Supplement and this Agreement (including the Standard Terms), the provisions of
the Prospectus Supplement shall prevail. Any affirmative statement of rights or
obligations of Certificateholders or the parties hereto included in the
Prospectus Supplement shall be deemed to be included herein.
(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, proportionately to
the ratio of their respective entitlements to interest.
(g) In any conflict between the provisions of this Series Supplement
and the Standard Terms, the provisions of this Series Supplement shall control.
(h) The Trustee shall prepare any tax returns or other forms required
to be filed by the Trust. So long as no applicable statute, Treasury regulation
or applicable Internal Revenue Service ruling or other administration
pronouncement requires to the contrary, all such tax returns shall be prepared
in a manner consistent with tax information reporting positions described in the
Prospectus prepared in connection with the Certificates dated May 6, 1999.
Section 14. Notices. 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:
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, to:
Bank One West Virginia, N.A.
000 Xxxxxxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies, to:
Standard & Poor's
00 Xxxxx Xxxxxx
38/th/ flr
New York, New York 10041
Attention: Public Finance Structured 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 15. 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 16. 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.
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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.
SOUTHPOINT STRUCTURED ASSETS, INC.,
as Depositor
By ____________________________________
Name: C. Xxxxx Xxxxxx
Title: President
BANK ONE WEST VIRGINIA, N.A., not in its
individual capacity but solely as
Trustee on behalf of the Corporate Bond-
Backed Trust, Series 1999-BellSouth-1
By ____________________________________
Name: Xxxxxx Xxxxxxx
Title: Senior Trust Officer
SCHEDULE I
SERIES 1999-BELLSOUTH-1
UNDERLYING SECURITIES SCHEDULE
BellSouth Security: BellSouth Telecommunications, Inc. Forty Year 7 1/2%
Debentures
Principal Amount Deposited: $10,000,000
Original Issue Date: June 15, 1993
Maturity Date: June 15, 2033
Principal Payment Date: June 15, 2033
Interest Rate: 7 1/2%
Interest Payment Dates: June 15 and December 15
Initial Accrued Interest: $_______
Redemption Dates: In whole or in part at any time on or after June 15,
2003
Redemption Prices: As set forth in Appendix A to this Schedule I
Form of Underlying Securities: Book-entry, maintained in the book-entry
system operated by The Depository Trust Company
APPENDIX I TO SCHEDULE A
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If redeemed during the Redemption Price (%)
twelve months ending
June 14
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2004 104.75
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2005 104.51
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2006 104.27
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2007 104.04
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2008 103.80
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2009 103.56
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2010 103.32
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2011 103.09
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2012 102.35
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2013 102.61
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2014 102.37
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2015 102.14
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2016 101.90
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2017 101.66
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2018 101.42
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2019 101.19
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2020 100.95
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2021 100.71
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2022 100.47
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2023 100.24
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And thereafter at 100%.
SCHEDULE II
DESCRIPTION OF THE SERIES 1999-BELLSOUTH-1 RETAINED INTEREST
The holder of the Retained Interest will retain the right with respect to
the BellSouth Security to receive from payments received on the BellSouth
Security on each Distribution Date on and after the date that the principal
amount of the Certificates equals the principal amount of the BellSouth
Security, a distribution equal to the outstanding principal amount of the
BellSouth Security multiplied by the difference between the 7 1/2% interest rate
on the BellSouth Security and the then current Pass-Through Rate for the
Certificates (the "Interest Strip"). The rights of the holder of the Retained
Interest to the Interest Strip is of equal priority with the rights of the
Certificateholders to receive distributions of interest.
The Retained Interest will be retained by the Depositor and may be
transferred by the Depositor or a Retained Interestholder to another party in
accordance with the provisions of the Series Supplement at the sole option of
the Depositor or the Retained Interestholder without the consent of the
Certificateholders or any other party. The beneficial ownership interest in the
Retained Interest will be recorded on the records of the Trustee. On each
Distribution Date, payments will be made on the Retained Interest by wire
transfer to the account of the holder thereof on the related Record Date as
specified in written instructions to the Trustee. The Trustee shall not agree
to any amendment or modification of the Standard Terms or the Series Supplement
which would adversely affect in any material respect the holder of the Retained
Interest without the consent of the holder of the Retained Interest.
EXHIBIT A
STANDARD TERMS FOR TRUST AGREEMENTS
EXHIBIT B
FORM OF CERTIFICATE
R-__ $________
CUSIP No. 000000XX0
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 fractional undivided 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.
Southpoint Structured Assets, Inc.
Corporate Bond-Backed Certificates
Series 1999-BellSouth-1,
$_________ Certificate Principal Balance
6.25% Initial Interest Rate
evidencing a fractional undivided beneficial ownership interest in the Trust, as
defined below, the property of which consists principally of $10,000,000 in
aggregate principal amount of BellSouth Telecommunications, Inc. Forty Year 7
1/2% Debentures and all payments received thereon (exclusive of the
Retained Interest), deposited in trust by Southpoint Structured Assets, Inc.
(the "Depositor").
This certifies that _______ is the registered owner of ____________ Dollars
non-assessable, fully-paid, fractional undivided interest in the Corporate Bond-
Backed Trust, Series 1999-BellSouth-1, (the "Trust"), formed by the Depositor.
B-1-2
The Trust was created pursuant to a Standard Terms for Trust Agreements,
dated as of November 1, 1996 (the "Standard Terms"), between the Depositor and
Bank One, West Virginia, N.A., a national banking association, not in its
individual capacity but solely as Trustee (the "Trustee"), as supplemented by
the Series Supplement, Series 1999-BellSouth-1, dated as of May 11, 1999 (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 "Corporate Bond-Backed Certificates, Series 1999-BellSouth-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)
the Underlying Security described in the Trust Agreement (exclusive of the
Retained Interest); (ii) all payments on or collections in respect of the
Underlying Security accrued on or after May 11, 1999 (the "Cut-off Date")
together with any proceeds thereof; and (iii) all funds from time to time
deposited with the Trustee relating to the Certificates and any investments
thereof, together with any and all income, proceeds and payments with respect
thereto (the "Trust Property").
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 with respect to the Certificates 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 fractional undivided
interest in the amount required to be distributed to the Holders of
B-1-3
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 Security 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").
As provided in the Series Supplement, the "Pass-Through Rate" for the
Certificate shall be from issuance through June 14, 2003, 6.25% per annum; from
June 15, 2003, through December 14, 2008, 6.75% per annum; and from December 15,
2008, through June 2033, 7.25% per year.
Principal payments on this Certificate will be made, to the extent of
available funds, in the form of redemptions as explained below on each June 15
and December 15, commencing December 15, 1999 (each, a "Redemption Date"). The
aggregate principal amount of this Certificate redeemed on each Redemption Date
shall be the maximum principal amount of this Certificate which may be redeemed
from funds then on deposit in the Redemption Fund. On each Redemption Date, the
amount to be deposited into the Redemption Fund will be calculated as described
in the Series Supplement.
Funds on deposit in the Redemption Fund will be applied first to redemption
of this Certificate at the request of beneficial owners of this Certificate
("Beneficial Owner") and then to mandatory redemption of this Certificate under
the circumstances described hereafter.
All redemptions will be made at 100% of the principal amount redeemed plus
accrued and unpaid interest to the Redemption Date.
Subject to the limitations discussed below, any Beneficial Owner has the
right to request the redemption of this Certificate prior to maturity unless the
Certificates have been declared due and payable by reason of an Event of Default
under the Trust Agreement. Such redemptions will be made to the extent of
available funds on each Redemption Date. On each Redemption Date, redemptions
will be made in accordance with Beneficial Owners' requests in the order of
priority described below, subject to the
B-1-4
limitations that (a) redemptions of this Certificate will be made only in
principal amounts of $1,000 or integral multiples thereof and (b) redemptions
will be made only to the extent funds are available in the Redemption Fund as of
such Redemption Date.
On each Redemption Date, subject to the above limitations, the Trust will
redeem this Certificate to the extent redemption has been requested in the
following order: (a) Certificates beneficially owned by the estates of Deceased
Holders, subject to a limitation of $100,000 principal amount of Certificates
beneficially owned by any one Deceased Holder; (b) Certificates beneficially
owned by other Beneficial Owners, subject to a limitation of $10,000 principal
amount of Certificates beneficially owned by any one Beneficial Owner; (c)
Certificates beneficially owned by the estates of Deceased Holders in excess of
such $100,000 limitation; and (d) Certificates beneficially owned by other
Beneficial Owners in excess of such $10,000 limitation.
Within any of the above categories, this Certificate will be redeemed, but
only to the extent moneys are on deposit in the Redemption Fund, in the order of
receipt of requests for redemption. The Trustee may establish such procedures as
it deems fair and equitable to establish the order of receipt of requests
received on the same day.
"Deceased Holder" shall mean a deceased person who was, during his
lifetime, entitled to substantially all of the beneficial interests of ownership
of a Certificate. For purposes of this definition, a Certificate held by tenants
by the entirety, joint tenants or tenants in common is considered to be held by
a single holder. However, a Certificate held by a trustee is considered to be
held by each beneficiary of the trust to the extent of such beneficiary's
beneficial interest therein. Also for purposes of these limitations, the death
of a tenant by the entirety, joint tenant or tenant in common will be deemed to
be the death of the holder of the Certificate and the entire principal amount of
the Certificate so held will be subject to priority in redemption, and the death
of a beneficiary of a trust will be deemed to be the death of the holder of a
Certificate held by the trustee of the trust to the extent of such beneficiary's
beneficial interest in such Certificate. A Deceased Holder will be deemed to be
the holder of such Certificate to the extent of his beneficial interest therein,
regardless of the
B-1-5
registered Certificateholder, if such beneficial interest can be established to
the satisfaction of the Trustee. Such beneficial interest will be deemed to
exist in typical cases of street name or nominee ownership, ownership by a
trustee, ownership under the Uniform Gifts to Minors Act and community property
or other joint ownership arrangements between a husband and wife and in trust
arrangements and certain other arrangements where a person has substantially all
of the Certificateholdership interest in the Certificate during his or her
lifetime. Beneficial interests shall include the power to sell, transfer or
otherwise dispose of a Certificate and the right to receive the proceeds
therefrom, as well as interest and principal payable with respect thereto.
A Beneficial Owner may request redemption by delivering the following items
to the Trustee on or before the last day of the month preceding the month in
which the Redemption Date occurs (each, a "Tender Date"): (a) a written request
for redemption in form satisfactory to the Trustee by the Beneficial Owner, or
his legal representative, with appropriate evidence of authority; (b) notice of
the principal amount of this Certificate to be redeemed, and (c) in the case of
a request on behalf of a Deceased Holder, appropriate evidence of death and any
tax waivers requested by the Trustee.
Subject to certain priorities of Deceased Holders and certain other
limitations, Certificates will be redeemed in the order that timely requests for
redemption are received by the Trustee (as evidenced by the time-stamp placed on
such requests by the Trustee at the time of receipt). Requests for redemptions
received in proper form will be accepted by the Trustee only to the extent funds
are available in the Redemption Fund as described above. Requests for redemption
made after the Tender Date for a given Redemption Date, and requests for
redemption received in a timely manner but not accepted in respect of a given
Redemption Date, will be treated as requests for redemption on the next
succeeding Redemption Date and each succeeding Redemption Date thereafter until
the request is accepted or is withdrawn as described in the following paragraph.
This Certificate will be held by the Trustee until the request has been accepted
or has been withdrawn and will continue to bear interest until redeemed.
Certificates, or portions thereof in integral multiples of $1,000 principal
amount, which have been accepted for redemption shall become due and payable on
the
B-1-6
applicable Redemption Date and shall cease to bear interest on such Redemption
Date.
Any Beneficial Owner who has requested redemption may withdraw his request
at any time by causing delivery of written notice of withdrawal to the Trustee.
If such written notice has not been received on or before the Tender Date for a
given Redemption Date, the previously made redemption request will be
irrevocable with respect to the acceptance of Certificates for redemption on
such given Redemption Date.
The procedures to be used to determine the priority of requests for
redemption may be revised from time to time by the Trustee.
On each Redemption Date following the issuance of the Certificates, the
Trust is obligated to redeem Certificates on a mandatory basis to the extent
that the amount in the Redemption Fund on such Redemption Date exceeds the
aggregate amount of all redemptions to be made at the request of Beneficial
Owners.
On the first Business Day of the month in which the Redemption Date occurs
(each, an "Accounting Date"), the Trustee will determine the amount of
Certificates for which requests for redemption have been accepted through the
related Tender Date and, thereby, determine the principal amount, if any, of
Certificates that will be subject to mandatory redemption on the next Redemption
Date. The Trustee will notify DTC, and DTC will allocate any amounts of
Certificates to be subject to mandatory redemption among DTC Participants by
random lot in accordance with DTC's rules and procedures, based upon the
assumption that each DTC Participant holds individual $1,000 Certificates
aggregating the full amount of that DTC Participant's holdings. DTC shall notify
those DTC Participants whose holdings have been selected for mandatory
redemption on or before the Redemption Date on which Certificates are to be
redeemed. DTC Participants will then determine the Beneficial Owners (or other
indirect participants acting on behalf of Beneficial Owners through such DTC
Participants) whose Certificates have been redeemed and will forward the
mandatory redemption payment of the Certificates to such Beneficial Owners or
indirect participants. No notice of redemption will be given to Beneficial
Owners prior to the respective Redemption Dates on
B-1-7
which their Certificates are redeemed. The redemption price will be 100% of the
principal amount of the Certificates so redeemed plus accrued and unpaid
interest to the Redemption Date on which such Certificates are redeemed.
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
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.
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.
B-1-8
The Certificates are limited in right of distribution to certain payments
and collections respecting the Underlying Security, 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 Certificates evidencing greater than 66-2/3% of the aggregate
Voting Rights of the Certificates subject to certain provisions set forth in the
Trust Agreement. 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 minimum
original principal amounts of $1,000 and integral multiples of $1,000 in excess
thereof.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable 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 at 000 Xxxxxxxx Xxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx
00000, 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 the Trustee.
B-1-9
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 a grantor trust
under the Internal Revenue Code of 1986, as amended, and the Certificateholder
agrees to treat the Trust, any distributions therefrom and its beneficial
interest in the Certificates consistently with such characterization.
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.
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 distribution in full of all amounts due to
Certificateholders and retirement of the Underlying Security, and (ii) 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"), including an individual retirement account or
Xxxxx plan (any such, a "Plan") may purchase Certificates if either (i) the
Underwriter is able to confirm the
B-1-10
existence of at least 100 independent purchasers or (ii) the Plan can represent
that its purchase of the Certificates would not be prohibited under ERISA or the
Code.
B-1-11
In Witness Whereof, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Corporate Bond-Backed
Trust, Series 1999-
BellSouth-1
By: Bank One West
Virginia, N.A., not in
its individual capacity
but solely as Trustee,
By__________________________
Authorized Officer
Dated: May 11, 1999
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the Trust Agreement referred
to herein.
By: Bank One West
Virginia, N.A., not in
its individual capacity
but solely as Trustee,
By__________________________
Authorized Officer
B-1-12
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. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank or
trust company.
EXHIBIT C
FORM OF ASSIGNMENT OF RETAINED INTEREST
_________________________________ (the "Assignor"), for and in
consideration of the good and valuable consideration in hand paid by
_____________________________ (the "Assignee"), the receipt and sufficiency of
which consideration are hereby confessed and acknowledged by Assignor, does
hereby transfer, assign, sell, set over and deliver, unto Assignee, all of
Assignor's right, title and interest in and to that certain Series 1999-
BellSouth-1 Retained Interest.
Executed this __ day of _______________________
[Assignor]
By__________________________________
Name______________________________
Title_____________________________
Acknowledged and agreed to:
[Assignee]
By_______________________________
Name __________________________
Title__________________________
ACKNOWLEDGEMENT
The undersigned hereby acknowledges the assignment from the Assignor to the
Assignee of the Assignor's rights with respect to the assigned Retained Interest
and hereby agrees that the Assignee has all the rights of a Retained
Interestholder (as defined in the Series Supplement)
described in the Series Supplement with respect to such Retained Interest, such
rights being enforceable directly by the Assignee as if it were an original
party to the Series Supplement.
Bank One, West
Virginia, as Trustee
By
Name_____________________________
Title____________________________
EXHIBIT D
FORM OF TRANSFEREE LETTER FOR RETAINED INTEREST
[Date]
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Bank One, West Virginia, N.A.
000 Xxxxxxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Re: Transfer of Series 1999-BellSouth-1 Retained Interest
Ladies and Gentlemen:
In connection with the proposed acquisition of the above-captioned Series
1999-BellSouth-1 Retained Interest by the undersigned pursuant to Section 11 of
the Series Supplement dated as of May 11, 1999, between Bank One, West Virginia,
N.A., as trustee, and Southpoint Structured Assets, Inc., and Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"), the undersigned
hereby represents the following (check the appropriate boxes):
A. The undersigned is a "qualified institutional buyer" under Rule 144A(a)(1)
of the Securities Act because the undersigned is:
(i) One of the following entities, acting for its own account or the
accounts of other qualified institutional buyers, that in the
aggregate owns and invests on a discretionary basis at least $100
million in securities of issuers that are not affiliated with the
entity:
[_] (A) Any insurance company as defined in Section 2(13)
of the Securities Act;
[_] (B) Any investment company registered under the
Investment Company Act of 1940, as amended (the "Investment
Company Act") or any business development company as defined in
Section 2(a)(48) of the Investment Company Act;
[_] (C) Any Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958, as amended;
[_] (D) Any plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a
state or its political subdivisions, for the benefit of its
employees;
[_] (E) Any employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974;
[_] (F) Any trust fund whose trustee is a bank or trust
company and whose participants are exclusively plans of the types
identified in paragraphs (D) and (E) of this section, except
trust funds that include as participants individual retirement
accounts or H.R. 10 plans;
[_] (G) Any business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940 (the
"Investment Advisers Act");
[_] (H) Any organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, corporation (other
than a bank as defined in Section 3(a)(2) of the Securities Act
or a savings and loan association or other institution referenced
in Section 3(a)(5)(A) of the Securities Act or a foreign bank or
savings and loan association or equivalent institution),
partnership, or Massachusetts or similar business trust; and
D-2
(I) any investment adviser registered under the
Investment Advisers Act.
(ii) Any dealer registered pursuant to Section 15 of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), acting for its
own account or the accounts of other qualified institutional buyers,
that in the aggregate owns and invests on a discretionary basis at
least $10 million of securities of issuers that are not affiliated
with the dealer, provided that securities constituting the whole or a
part of an unsold allotment to or subscription by a dealer as a
participant in a public offering shall not be deemed to be owned by
such dealer;
(iii) Any dealer registered pursuant to Section 15 of the Exchange Act
acting in a riskless principal transaction on behalf of a qualified
institutional buyer;
(iv) Any investment company registered under the Investment Company Act,
acting for its own account or for the accounts of other qualified
institutional buyers, that is part of a family of investment companies
which own in the aggregate at least $100 million in securities of
issuers, other than issuers that are affiliated with the investment
company or are part of such family of investment companies. Family of
investment companies means any two or more investment companies
registered under the Investment Company Act, except for a unit
investment trust whose assets consist solely of shares of one or more
registered investment companies, that have the same investment adviser
(or, in the case of unit investment trusts, the same depositor),
provided that, for purposes of this paragraph:
(A) Each series of a series company (as defined in Rule
18f-2 under the Investment Company Act) shall be deemed to
be a separate investment company; and
(B) Investment companies shall be deemed to have the same
adviser (or depositor) if their advisers (or depositors)
are majority-owned subsidiaries of the same parent, or if
one investment company's adviser (or depositor) is a
majority-owned subsidiary of the other investment company's
adviser (or depositor);
(v) Any entity, all of the equity owners of which are qualified
institutional buyers, acting for its own account or the accounts of
other qualified institutional buyers; and
(vi) Any bank as defined in Section 3(a)(2) of the Securities Act, any
savings and loan association or other institution as referenced in
Section 3(a)(5)(A) of the Securities Act, or any foreign bank or
savings and loan association or equivalent institution, acting for its
own account or the accounts of other qualified institutional buyers,
that in the aggregate owns and invests on a discretionary basis at
least $100 million in securities of issuers that are not affiliated
with it and that has an audited net worth of at least $25 million as
demonstrated in its latest annual financial statements, as of a date
not more than 16 months preceding the date of sale of the Custodial
Receipt in the case of a U.S. bank or savings and loan association,
and not more than 18 months preceding the date of sale for a foreign
bank or savings and loan association or equivalent institution.
B. The undersigned is aware that the transferor may rely on the exemption from
the provisions of Section 5 of the Securities Act provided by Rule
144A(d)(2) of the Securities Act in connection with the transfer to the
undersigned contemplated by this certificate.
C. The transferor or the undersigned has received from the Agent, if so
requested, at or prior to the time of sale, the information required to be
delivered pursuant to Rule 144A(d)(4) of the Securities Act.
D. If the undersigned sells the Retained Interest at our option, the
undersigned will obtain from any institutional investor that purchases the
Retained Interest from the undersigned a certificate containing the same
representations, warranties and agreements contained in the foregoing
paragraphs A through C and this paragraph D.
[Transferee]
By
Name
Title
[Note: must be Chief Financial Officer or
other Executive Officer]
