EXHIBIT 4
PREFERREDPLUS [ ]% TRUST CERTIFICATES SERIES QWS-2
SERIES SUPPLEMENT
between
XXXXXXX XXXXX DEPOSITOR, INC.,
as Depositor,
and
THE BANK OF NEW YORK,
as Trustee and Securities Intermediary
Dated as of December [ ], 2001
SERIES SUPPLEMENT, dated as of December [ ], 2001 (the "Supplement"),
by and between XXXXXXX XXXXX DEPOSITOR, INC., a Delaware corporation, as
Depositor, THE BANK OF NEW YORK, a New York corporation, as Trustee and
Securities Intermediary.
W I T N E S S E T H:
WHEREAS, the Depositor desires to create the Trust designated herein
(the "Trust") by executing and delivering this Supplement, which shall
incorporate the terms of the Standard Terms for Trust Agreements, dated as of
February 20, 1998 (the "Standard Terms" and, together with this Supplement, the
"Trust Agreement"), by and between the Depositor and the Trustee and Securities
Intermediary, as modified by this Supplement;
WHEREAS, the Depositor desires to deposit the Underlying Securities
set forth on Schedule I attached hereto into the Trust;
WHEREAS, in connection with the creation of the Trust and the deposit
therein of the Underlying Securities, it is desired to provide for the issuance
of the Certificates evidencing undivided interests in the Trust and Call Rights;
and
WHEREAS, the Trustee has joined in the execution of the Standard Terms
and this Supplement to evidence the acceptance by the Trustee of the Trust;
WHEREAS, the Securities Intermediary has joined in the execution of
the Standard Terms and this Supplement to evidence the acceptance by the
Securities Intermediary of its obligations thereunder and hereunder;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants expressed herein, it is hereby agreed by and between the
Depositor and the Trustee and Securities Intermediary as follows:
Section 1. Incorporation of Standard Terms. All of the provisions of
the Standard Terms, a copy of which is attached hereto as Exhibit A, are hereby
incorporated herein by reference in their entirety and this Supplement and the
Standard Terms shall form a single agreement among the parties. In the event of
any inconsistency between the provisions of this Supplement and the provisions
of the Standard Terms, the provisions of this Supplement will control with
respect to the transactions described herein.
Section 2. Definitions. Except as otherwise specified herein or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below for all purposes under this Supplement (Section 2(b)
hereof sets forth terms listed in the Standard Terms that are not applicable to
this Series). Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Standard Terms.
"Allocation Ratio": The allocation amongst the Certificateholders in
accordance with their pro rata interests in the Certificates.
"Authorized Denomination": With respect to Certificates, an aggregate
stated amount of $1,000.
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"Business Day": Any day that is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in the City of
New York are authorized or obligated by law, regulation or executive order to
close and that also is specified as a Business Day with respect to the
Underlying Securities.
"Call Date": Any Business Day that (i) a Call Holder designates as a
Call Date on or after February 15, 2007; (ii) a Call Holder designates as a Call
Date before February 15, 2007 after the announcement of any redemption of the
Underlying Securities or other unscheduled payment of the Underlying Securities
or after receipt by the Call Holder of notice of the termination of the Trust;
provided that if a Call Right is to be exercised after the announcement of any
redemption of the Underlying Securities or other unscheduled payment of the
Underlying Securities and prior to such redemption or other unscheduled payment,
then the Call Date designated by the Call Holder must be the second Business Day
prior to such redemption or other unscheduled payment; (iii) that at any time is
deemed a Call Date upon an acceleration of the Underlying Securities and payment
in full by the Underlying Securities Issuer of all amounts when due; or (iv) in
the case of a tender offer for the Underlying Securities, the date which a Call
Holder is deemed to designate as a Call Date pursuant to Section 2.02(i)(iv) of
the Warrant Agreement.
"Call Holder": The holder of a Call Right.
"Call Price": $[ ] per Certificate being called plus any accrued and
unpaid interest on each Certificate being called to the Call Date.
"Call Right": The right, but not the obligation, pursuant to the
Warrant Agreement and any related Warrant Certificates (as defined in the
Warrant Agreement) of one or more Call Holders to purchase from the
Certificateholders on a Call Date some or all of the Certificates for the Call
Price.
"Certificates": The [________] trust certificates issued in a stated
amount of $[ ] each and entitled to receive on each Distribution Date until the
Final Scheduled Distribution Date distributions at a rate of [ ]% per annum on
their stated amount.
"Closing Date": December [ ], 2001.
"Collection Period": (i) With respect to each August 15 Distribution
Date, the period beginning on the day after the February 15 Distribution Date of
the current year and ending on such August 15 Distribution Date, inclusive, and
(ii) with respect to each February 15 Distribution Date, the period beginning on
the day after the August 15 Distribution Date of the previous year and ending on
such February 15 Distribution Date, inclusive, except for the February 15, 2002
Distribution Date, as to which the Collection Period shall be the period
beginning on the Cut-off Date and ending on such February 15, 2002 Distribution
Date, inclusive; provided, however, that clauses (i) and (ii) shall be subject
to Section 9(c) hereof.
"Corporate Trust Office": The office of the Trustee located at 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Department; provided, however, that the office at which certificated
securities are delivered for registration of
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transfer, cancellation or exchange shall be the office of the Trustee, located
at 000 Xxxxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Cut-off Date": December [ ], 2001.
"Depository": The Depository Trust Company, its nominees and their
respective successors.
"Distribution Date": February 15 and August 15 of each year (or if
such date is not a Business Day, the next succeeding Business Day), commencing
on February 15, 2002 and ending on the Final Scheduled Distribution Date.
"Distribution Election": (a) If there occurs an Event of Default (as
defined in the Underlying Securities Indenture) on the Underlying Securities
under clauses (1) or (2) of section 6.01 of the Underlying Securities Indenture,
then the Trustee, upon receiving notice of such event, shall immediately direct
the Market Agent to sell the Underlying Securities and a pro rata portion of the
Related Assets held by the Trust, in accordance with the Sale Procedures, and
the Liquidation Proceeds, if any, shall be deposited into the Certificate
Account for distribution in accordance with the Allocation Ratio on the first
Business Day following such deposit into the Certificate Account.
(b) If there occurs an acceleration of the date of maturity of the
Underlying Securities and the Underlying Securities are declared to be
immediately due and payable in accordance with the Underlying Securities
Indenture, and the Underlying Securities Issuer:
(i) makes full payment of all amounts when due, then all holders of
outstanding Call Rights will be deemed to have exercised their Call Rights
automatically, and the Trustee, upon receiving such payment from the
Underlying Securities Issuer, shall, on the first Business Day following
receipt of such payment, distribute from such payment the following
amounts: (A) the Call Price per Certificate shall be distributed from such
payment on account of each Certificate called from the holder thereof
(which holders, pursuant to Section 2.02(d) of the Warrant Agreement, shall
exclude Certificateholders to whom Delivery Certificates (as defined in the
Warrant Agreement) were delivered in accordance with Section 2.02(d) of the
Warrant Agreement), (B) the stated amount per Certificate plus accrued and
unpaid distributions thereon, which shall be deemed to equal the Call Price
per Certificate, shall be distributed from such payment on account of each
Certificate held by Certificateholders to whom Delivery Certificates were
delivered in accordance with Section 2.02(d) of the Warrant Agreement, and
(C) any amounts remaining shall be distributed pro rata among the Call
Holders that are deemed to have exercised their Call Rights automatically
pursuant to this clause and the Certificateholders to whom Delivery
Certificates were delivered in accordance with Section 2.02(d) of the
Warrant Agreement;
(ii) makes a partial payment of all amounts when due, then the
Trustee, upon receiving such payment, shall (A) immediately deposit such
payment into the Certificate Account for distribution in accordance with
the Allocation Ratio on the first Business Day following such deposit into
the Certificate Account; provided, that if the Underlying
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Securities issuer places any condition, restriction or obligation on the
acceptance of such partial payment including but not limited to a waiver of
any right granted to a holder of the Underlying Securities, such partial
payment will be rejected by the Trustee and no deposit will be made into
the Certificate Account, (B) distribute a principal amount of the
Underlying Securities equal to the stated amount of outstanding Trust
Certificates and a pro rata portion of the Related Assets in accordance
with the Allocation Ratio to each Certificateholder's last address as it
appears in the Certificate Register within three Business Days of receiving
said notice, and (C) if any Underlying Securities are not distributed
pursuant to clause (B), immediately direct the Market Agent to sell all
Underlying Securities not so distributed and a pro rata portion of the
Related Assets held by the Trust, in accordance with the Sale Procedures,
and the Liquidation Proceeds, if any, shall be deposited into the
Certificate Account for distribution in accordance with the Allocation
Ratio on the first Business Day following such deposit into the Certificate
Account; or
(iii) fails to make such payment when due, then the Trustee, upon
receiving notice of such failure to make payment, shall (A) distribute a
principal amount of Underlying Securities equal to the stated amount of
outstanding Trust Certificates and a pro rata portion of the Related Assets
in accordance with the Allocation Ratio to each Certificateholder's last
address as it appears in the Certificate Register within three Business
Days of receiving said notice, and (B) if any Underlying Securities are not
distributed pursuant to clause (A), immediately direct the Market Agent to
sell all Underlying Securities not so distributed and a pro rata portion of
the Related Assets held by the Trust, in accordance with the Sale
Procedures, and the Liquidation Proceeds, if any, shall be deposited into
the Certificate Account for distribution in accordance with the Allocation
Ratio on the first Business Day following such deposit into the Certificate
Account.
(c) If the Underlying Securities Issuer of any Concentrated Underlying
Securities ceases to be a reporting company under the Exchange Act, and no
parent guarantor of such Underlying Securities Issuer, if any, includes in its
Exchange Act reports condensed consolidating financial statements setting forth
financial information for the Underlying Securities Issuer, then the Trustee,
upon receiving notice of such event shall (A) distribute a principal amount of
Underlying Securities equal to the stated amount of outstanding Trust
Certificates and a pro rata portion of the Related Assets in accordance with the
Allocation Ratio to each Certificateholder's last address as it appears in the
Certificate Register within three Business Days of receiving said notice, and
(B) if any Underlying Securities are not distributed pursuant to clause (A),
immediately direct the Market Agent to sell all Underlying Securities not so
distributed and a pro rata portion of the Related Assets held by the Trust, in
accordance with the Sale Procedures, and the Liquidation Proceeds, if any, shall
be deposited into the Certificate Account for distribution in accordance with
the Allocation Ratio on the first Business Day following such deposit into the
Certificate Account.
Upon receiving (A) notice of an acceleration of the date of maturity
of the Underlying Securities and the Underlying Securities Issuer's partial
payment of all amounts when due as described in subsection (ii) of clause (b)
above, or (B) notice of the events set forth in clause (c) above, the Trustee
shall, 10 days prior to the exercise of any remedy, provide
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written notice of the termination of the Trust to the Call Holders.
Notwithstanding subsection (ii) of clause (b) and clause (c), the Trustee shall
not distribute any such partial payment, Underlying Securities or Related Assets
to any Certificateholders before the earlier of (i) the expiration of the 10-day
notice of termination period, and (ii) receipt by the Trust of notice of all
Call Holders' election to exercise their Call Rights. If less than all
outstanding Call Rights are exercised, upon receiving such notice of election,
the Trustee shall select by lot (or by such other reasonable procedure as may be
established by the Trustee) for purchase by such exercising Call Holders the
stated amount of Trust Certificates equal to the stated amount of Call Rights
being exercised multiplied by the aggregate stated amount of the outstanding
Trust Certificates divided by the aggregate stated amount of the outstanding
Call Rights. The Certificateholders of the Trust Certificates to be purchased
shall not be entitled to any right other than the right to receive payment of an
amount equal to the Call Price on the date such Call Rights are exercised, and
such Trust Certificates shall be deemed to have been automatically surrendered
by the Certificateholders to the Trust for further transfer to the exercising
Call Holders. The share of the Underlying Securities and Related Assets to be
distributed with respect to such called Trust Certificates shall be distributed
to the exercising Call Holders. In the case of a sale by the Market Agent of
Underlying Securities and Related Assets pursuant to clause (a) above, the
Trustee shall deliver such Underlying Securities and Related Assets to the
purchaser of such Underlying Securities and Related Assets only against payment
in same day funds and the Trustee shall deposit the same into the Certificate
Account.
"Eligible Investments": As defined in the Standard Terms; provided,
however, that (i) the minimum required rating for long-term instruments will be
equal to the lower of the rating of the Underlying Securities or the Trust
Certificates, and (ii) the rating of any short-term instruments will be A-1+ by
S&P and P1 by Xxxxx'x; and provided, further, that any such investment matures
no later than the Business Day prior to the next succeeding Distribution Date.
"Escrow Agent": As will be set forth in the Escrow Agreement.
"Escrow Agreement": The escrow agreement to be entered into on the
Call Date among a given Call Holder, the Trustee and the Escrow Agent pursuant
to Section 14(c)(iii)(2) hereof.
"Event of Default": (i) A default in the payment of any interest on
any Underlying Security after the same becomes due and payable (subject to any
applicable grace period), (ii) a default in the payment of the principal of or
any installment of principal of any Underlying Security when the same becomes
due and payable and (iii) any other event specified as an event of default in
the Underlying Securities Indenture. For a summary of certain events of default
in the Underlying Securities Indenture, please refer to the Prospectus
Supplement.
"Final Scheduled Distribution Date": February 15, 2031 (or if such
date is not a Business Day, the next succeeding Business Day).
"Fixed Pass-Through Rate": [7.75]% per annum.
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"Optional Exchange Date": Any Distribution Date or such date as is
designated pursuant to Section 7(b) hereof.
"Ordinary Expenses": The compensation due to the Trustee for Ordinary
Expenses as defined in the Standard Terms, which, with respect to Ordinary
Expenses other than those referred to in clause (iii) of such definition and
other than the costs of converting to XXXXX format the periodic reports required
for the Trust under the Exchange Act, shall be fixed at $2,000 per annum
(payable in semi-annual installments of $1,000).
"Pass-Through Rate": The Fixed Pass-Through Rate.
"Prepaid Ordinary Expenses": Zero (0).
"Prospectus Supplement": The Prospectus Supplement dated December [ ],
2001 relating to the Certificates.
"Rating Agency": Xxxxx'x and S&P.
"Record Date": The Business Day immediately preceding each
Distribution Date.
"Series": PREFERREDPLUS [ ]% Trust Certificates Series QWS-2.
"Underlying Securities": The $[_________] aggregate principal amount
of 7.75% Notes due February 15, 2031 issued by the Underlying Securities
Issuer, as described in Schedule I hereto.
"Underlying Securities Indenture": As set forth in Schedule I.
"Underlying Securities Issuer": Qwest Capital Funding, Inc., (formerly
US West Capital Funding, Inc.) a Colorado corporation.
"Warrant Agreement": The Warrant Agreement, dated as of December [ ],
2001, by and between the Trust and the Warrant Agent (as defined in the Warrant
Agreement).
(b) The terms listed below are not applicable to this Series.
"Accounting Date"
"Administration Account"
"Administrative Agent"
"Administration Agreement"
"Administrative Agent Termination Event"
"Advance"
"Calculation Agent"
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"Eligible Expense"
"Exchange Rate Agent"
"Floating Pass-Through Rate"
"Letter of Credit"
"Limited Guarantor"
"Limited Guaranty"
"Notional Amount"
"Reserve Account"
"Requisite Reserve Amount"
"Retained Interest"
"Surety Bond"
"Swap Agreement"
"Swap Counterparty"
"Swap Distribution Amount"
"Swap Guarantee"
"Swap Guarantor"
"Swap Receipt Amount"
"Swap Termination Payment"
Section 3. Designation of Trust and Certificates. (a) The Trust
created hereby shall be known as the "PREFERREDPLUS Trust Series QWS-2. The
Certificates evidencing certain undivided ownership interests therein shall be
known as the "PREFERREDPLUS [ ]% Trust Certificates Series QWS-2".
(b) 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 authorized denominations of $[ ]
and integral multiples thereof. Except as provided in the Standard Terms, the
Trust shall not issue additional Certificates or incur any indebtedness;
provided, however, from time to time, upon obtaining prior written confirmation
by each Rating Agency that such action will not result in a downgrading or
withdrawal of its rating of the Certificates, the Depositor may, without the
consent of the Certificateholders, increase the amount of the Underlying
Securities in the Trust and the Trust may issue a corresponding
8
amount of additional Certificates in accordance with Section 5.12(a) of the
Standard Terms except that clauses (v), (vi) and (vii) of Section 5.12(a) shall
not apply to this Series.
(c) On each Distribution Date, commencing on February 15, 2002 and
ending on the Final Scheduled Distribution Date or such earlier date if the
Underlying Securities are redeemed prior to the Final Scheduled Distribution
Date, the Certificates will be entitled to receive distributions at a rate of [
]% per annum on the stated amount of the Certificates.
(d) On the Final Scheduled Distribution Date, the Certificates will be
entitled to a distribution of the aggregate principal amount of such Underlying
Securities.
(e) Any reference to the principal amount of the Certificates shall be
construed as a reference to the stated amount of the Certificates, unless
otherwise indicated.
Section 4. Satisfaction of Conditions to Initial Execution and
Delivery of Trust Certificates. The Trustee hereby acknowledges receipt, on or
prior to the Closing Date, of:
(i) the Underlying Securities set forth on Schedule I hereto; and
(ii) all documents set forth in Section 5.12 of the Standard Terms
except that clauses (v), (vi) and (vii) of Section 5.12(a) shall not apply
to this Series.
Section 5. Distributions. (a) On each Distribution Date, the Trustee
shall apply solely to the extent of Available Funds in the Certificate Account
as follows:
(i) first, to the Trustee, reimbursement for any approved
Extraordinary Trust Expenses incurred by the Trustee in accordance with
Section 6(b) hereof and approved by not less than 100% of the
Certificateholders;
(ii) second, to the Certificateholders, distributions accrued during
the related Collection Period at the rate of [ ]% per annum on the stated
amount of such Certificates and distributable on such Certificates on such
Distribution Date;
(iii) third, to the Certificateholders, if available, any additional
distribution owed and paid by the Underlying Securities Issuer as a result
of a delay in the receipt by the Trustee of any payment on the Underlying
Securities;
(iv) fourth, to the Certificateholders, on the Final Scheduled
Distribution Date only, a distribution of the aggregate principal amount of
the Underlying Securities;
(v) fifth, to the extent there remain Available Funds in the
Certificate Account, to any creditors of the Trust in satisfaction of
liabilities thereto; and
(vi) sixth, to the extent there remain Available Funds in the
Certificate Account, to Xxxxxxx Xxxxx Capital Services, Inc. and if no
Available Funds remain in the Certificate Account then no distribution will
be made pursuant to this Section 5(a)(vi).
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Subject to Section 9(c) hereof, to the extent Available Funds are insufficient
to make any required distributions due to the Certificates on any Distribution
Date, any shortfall will be carried over and will be distributed on the next
Distribution Date on which sufficient funds are available on the Available Funds
to pay such shortfall. Neither Xxxxxxx Xxxxx & Co. nor any of its Affiliates
will have any claim against the Trust pursuant to Section 5(a)(vi) if the Trust
fails to make a distribution on a Distribution Date to such person because no
Available Funds remain in the Certificate Account on such Distribution Date.
(b) On an Optional Exchange Date, the Trustee shall distribute to
Xxxxxxx Xxxxx & Co. or any of its Affiliates, other than the Depositor, or any
other Person exercising an optional exchange pursuant to Section 7 hereof, as
the case may be, Underlying Securities in accordance with Section 7 hereof.
Section 6. Trustee's Fees; Escrow Agent's Fees. (a) Payment to the
Trustee of Ordinary Expenses shall be as set forth in a separate agreement
between the Trustee and the Depositor. The Trustee agrees that in the event
Ordinary Expenses are not paid in accordance with such agreement, it shall (i)
not have any claim or recourse against the Trust or the property of the Trust
with respect thereto and (ii) continue to perform all of its services as set
forth herein unless it elects to resign as Trustee in accordance with Section
7.08 of the Standard Terms.
(b) Extraordinary Trust Expenses shall not be paid out of the
Deposited Assets unless (i) the Trustee is satisfied that it will have adequate
security or indemnity in respect of such costs, expenses and liabilities, and
(ii) all the Certificateholders of Certificates then outstanding have voted to
require the Trustee to incur such Extraordinary Trust Expenses. If Extraordinary
Trust Expenses are not approved unanimously as set forth in clause (ii), such
Extraordinary Trust Expenses shall not be an obligation of the Trust, and the
Trustee shall not file any claim against the Trust therefor notwithstanding
failure of Certificateholders to reimburse the Trustee. In addition, if the
conditions in (i) and (ii) are not both satisfied, the Trustee shall not be
obligated to incur any Extraordinary Trust Expense.
(c) In the event that one or more Call Holders is required to deposit
the Call Price with the Escrow Agent on the Exercise Date pursuant to Section
14(c)(iii)(2) hereof, the Depositor and the Escrow Agent shall enter into an
agreement reasonably acceptable to both parties thereto whereby the Depositor
shall pay to the Escrow Agent a fee in consideration for its services under the
Escrow Agreement or Escrow Agreements, as applicable.
Section 7. Optional Exchange. (a) Xxxxxxx Xxxxx & Co. or any of its
Affiliates (other than the Depositor), if it holds Certificates, or any other
Person (other than the Depositor) holding Certificates with an aggregate stated
amount of $5 million or more acquired pursuant to the exercise of Call Rights
held by it, may notify the Trustee, not less than 30 days but not more than 60
days prior to any Optional Exchange Date, that:
(i) such Person intends to tender an Authorized Denomination of
Certificates that it holds to the Trustee on such Optional Exchange Date in
exchange for a proportional amount of Underlying Securities;
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(ii) such exchange will not cause the Trust or Depositor to fail to
satisfy the applicable requirements for exemption under Rule 3a-7 under the
Investment Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of the Trust
as a "grantor trust" under the Code,
(iv) in the case of an exchange of less than all outstanding
Certificates, such exchange will not cause a failure to satisfy the minimum
requirements for the Certificates to remain listed on the New York Stock
Exchange, unless the Person tendering such Certificates will hold all
remaining outstanding Certificates upon completion of the exchange for such
Certificates pursuant to this Section 7;
(v) such exchange will not be made with respect to Certificates
subject to outstanding Call Rights held by any Person other than the Person
exercising such exchange; and
(vi) in the case of an exchange by a person other xxxx Xxxxxxx Xxxxx &
Co. or any of its Affiliates (other than the Depositor), such exchange will
be made with respect to an aggregate stated amount of Certificates equal to
the aggregate stated amount of Certificates acquired by such Person
pursuant to the exercise of Call Rights held by it.
Upon tender of such Certificates on such Optional Exchange Date, the Trustee
will deliver to the Person tendering such Certificates an amount of Underlying
Securities having a principal amount equal to the aggregate principal amount of
Underlying Securities then held by the Trust times the aggregate stated amount
of Certificates being tendered divided by the aggregate stated amount of
Certificates then outstanding.
(b) When a tender offer for the Underlying Securities is pending,
Xxxxxxx Xxxxx & Co. or any of its Affiliates (other than the Depositor), if it
holds Certificates, or any other Person (other than the Depositor, or an
Affiliate of the Person making such tender offer) holding Certificates with an
aggregate stated amount of $5 million or more acquired pursuant to the exercise
of Call Rights held by it, may notify the Trustee, not less than 5 days but not
more than 60 days prior to any such Optional Exchange Date as they may
designate, that:
(i) such Person intends to tender an Authorized Denomination of
Certificates that it holds to the Trustee on such Optional Exchange Date in
exchange for a proportional amount of Underlying Securities;
(ii) such exchange will not cause the Trust or Depositor to fail to
satisfy the applicable requirements for exemption under Rule 3a-7 under the
Investment Company Act of 1940, as amended;
(iii) such exchange will not affect the characterization of the Trust
as a "grantor trust" under the Code,
(iv) in the case of an exchange of less than all outstanding
Certificates, such exchange will not cause a failure to satisfy the minimum
requirements for the
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Certificates to remain listed on the New York Stock Exchange, unless the
Person tendering such Certificates will hold all remaining outstanding
Certificates upon completion of the exchange for such Certificates pursuant
to this Section 7;
(v) such exchange will not be made with respect to Certificates
subject to outstanding Call Rights held by any Person other than the Person
exercising such exchange; and
(vi) in the case of an exchange by a person other xxxx Xxxxxxx Xxxxx &
Co. or any of its Affiliates (other than the Depositor), such exchange will
be made with respect to an aggregate stated amount of Certificates equal to
the aggregate stated amount of Certificates acquired by such Person
pursuant to the exercise of Call Rights held by it.
Upon tender of such Certificates on such Optional Exchange Date, the Trustee
will deliver to the Person tendering such Certificates an amount of Underlying
Securities having a principal amount equal to the aggregate principal amount of
Underlying Securities then held by the Trust times the aggregate stated amount
of Certificates being tendered divided by the aggregate stated amount of
Certificates then outstanding.
(c) The requirements set forth in paragraphs (a)(ii), (a)(v) and
(a)(vi) of Section 4.07 of the Standard Terms do not apply to an Optional
Exchange pursuant to this Section 7.
(d) Any costs associated with the exercise of the rights granted under
paragraphs (a) and (b) of this Section 7 will be borne by the Person exercising
such rights and not by the Trust.
Section 8. Events of Default. Within 30 days of its receipt of notice
of the occurrence of an Event of Default, the Trustee will give notice to the
Certificateholders, transmitted by mail, of all such uncured or unwaived Events
of Default actually known to it. However, unless there is an Event of Default
relating to the payment of principal of or interest on any of the Underlying
Securities, the Trustee will be protected in withholding such notice if in good
faith it determines that the withholding of such notice is in the interest of
the Certificateholders.
Section 9. Miscellaneous. (a) The provisions of Section 4.04,
Advances, of the Standard Terms shall not apply to the Certificates.
(b) The Certificateholders shall not be entitled to terminate the
Trust or cause the sale or other disposition of the Underlying Securities;
provided, however, that Certificateholders holding all, but not less than all,
of the outstanding Certificates may exercise their rights under Section 13(b)
with respect to all such Certificates.
(c) If the Trustee has not received payment with respect to a
Collection Period on the Underlying Securities on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of such
payment. No additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of such delay; provided, however, that any
additional interest owed and paid by the Underlying Securities Issuer as a
result of such
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delay shall be paid to the Certificateholders, proportionately to the ratio of
their respective entitlements to interest payments.
(d) The outstanding principal balance of the Certificates shall not be
reduced by the amount of any Realized Loss.
(e) The Trust may not engage in any business or activities other than
in connection with, or relating to, the holding, protecting and preserving of
the Deposited Assets and the issuance of the Certificates and Call Rights, and
other than those required or authorized by the Trust Agreement or incidental and
necessary to accomplish such activities. The Trust may not issue or sell any
certificates or other obligations other than the Certificates and Call Rights,
or otherwise incur, assume or guarantee any indebtedness for money borrowed.
(f) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to, any another entity or permit any other entity
to consolidate, amalgamate, merge with or into, or replace the Trust.
(g) Except as expressly provided in the Trust Agreement, the Trust may
not sell the Underlying Securities.
(h) If the Trustee resigns or is removed as Trustee in accordance with
Section 7.08 of the Trust Agreement, in addition to providing the Depositor with
written notice, the Trustee shall also provide the Rating Agencies with written
notice.
(i) Xxxxxxx Xxxxx & Co. shall act as the Market Agent and shall serve
in such capacity in accordance with the terms of the Market Agent Agreement
attached hereto as Exhibit C.
(j) Notwithstanding anything in the Trust Agreement to the contrary,
the Trustee may be removed upon 60 days prior written notice delivered by
Certificateholders holding Certificates that represent the Required
Percentage-Removal, and such removal shall take effect upon the appointment of a
successor Trustee and its acceptance of such appointment as provided in the
Trust Agreement.
Section 10. Notices. (a) All directions, demands and notices hereunder
or under the Standard Terms shall be in writing and shall be delivered as set
forth below (unless written notice is otherwise provided to the Trustee).
If to the Depositor, to:
Xxxxxxx Xxxxx Depositor, Inc.
c/x Xxxxxxx Xxxxx & Co.
World Financial Center
New York, NY 10281
Attention: Xxxxx X. Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13
If to the Trustee, to:
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
-PREFERREDPLUS Trust Series QWS-2
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Securities Intermediary, to:
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
- PREFERREDPLUS Trust Series QWS-2
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Warrant Agent, to
The Bank of New York
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
-PREFERREDPLUS Trust Series QWS-2
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
14
and to:
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Copies of any tender offer materials and all directions, demands
and notices required to be given to the Certificateholders hereunder or under
the Standard Terms will be given to the Warrant Agent by facsimile transmission
and by mail.
Section 11. Governing Law. This Supplement and the transactions
described herein shall be construed in accordance with and governed by the law
of the State of New York.
Section 12. Counterparts. This Supplement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one and the same instrument.
Section 13. Termination of the Trust. (a) The Trust shall terminate
upon the earlier of (i) the payment in full at maturity or sale by the Trust
after a payment default on the Underlying Securities and the distribution in
full of all amounts due to the Certificateholders, (ii) the distribution to the
Certificateholders of all Underlying Securities in accordance with the
Distribution Election, (iii) the exchange of all outstanding Certificates for
Underlying Securities pursuant to one or more Optional Exchanges, (iv) the Final
Scheduled Distribution Date and (v) the holders of all, but not less than all,
of the Certificates exercising their election in Section 13(b) below.
(b) Certificateholders who hold all, but not less than all, of the
outstanding Certificates may, upon prior written notice to the Rating Agencies,
elect to terminate the Trust at any time; provided that (i) the exercise of such
termination right would not cause the Trust or the Depositor to fail to satisfy
the applicable requirements for exemption under Rule 3a-7 under the Investment
Company Act of 1940, as amended and (ii) if and for so long as the call warrants
remain outstanding, all of the Call Holders have consented to such termination.
(c) To the extent that the provisions of this Section 13 conflict with
Section 10.01 of the Standard Terms, the latter shall control.
Section 14. Sale of Underlying Securities; Call Right
(a) In the case of Extraordinary Trust Expenses approved by 100% of
the Certificateholders of a given Class, pursuant to Section 6(b) hereof, the
Trustee may sell all or a portion of the Underlying Securities to pay such
Extraordinary Trust Expenses.
(b) As a holder of the Underlying Securities, the Trust may receive
redemption proceeds upon the redemption of the Underlying Securities, in whole
or in part, by the Underlying Securities Issuer pursuant to the Underlying
Securities Indenture. (i) Upon the
15
redemption of the Underlying Securities in whole, but not in part (A) on the
stated maturity date of such Underlying Securities or (B) at the option of the
Underlying Securities Issuer upon at least 15 days, but not more than 60 days,
prior notice pursuant to the Underlying Securities Indenture, the redemption
proceeds will be distributed pro rata to the holders of the Underlying
Securities, including the Trust. Upon receiving such redemption proceeds, the
Trust shall distribute the proceeds pro rata to the Certificateholders entitled
to such proceeds upon the date such proceeds are received in immediately
available funds by the Trust if such proceeds are received prior to 1:00 p.m.
local time at the office of the Trustee and otherwise on the next Business Day.
(ii) Upon the redemption of the Underlying Securities in part at the option of
the Underlying Securities Issuer upon at least 15 days, but not more than 60
days, prior notice pursuant to the Underlying Securities Indenture, the
redemption proceeds will be distributed pro rata to the holders of the
Underlying Securities, including the Trust. Upon any such redemption in part,
the Trustee shall select by lot (or by such other reasonable procedure as may be
established by the Trustee) a stated amount of Certificates equal to the
aggregate stated amount of Certificates then outstanding multiplied by the
aggregate principal amount of Underlying Securities subject to redemption and
then held by the Trust divided by the aggregate principal amount of Underlying
Securities then held by the Trust (the "Redemption Amount"); provided that the
amount of Trust Certificates being selected by lot may be reduced by the
aggregate stated amount of Trust Certificates called pursuant to the exercise of
Call Rights prior to such redemption in accordance with the terms of the Warrant
Agreement. Upon receiving the redemption proceeds distributed to the Trust, the
Trustee shall distribute the proceeds pro rata to the Certificateholders
entitled to such proceeds upon the date such proceeds are received in
immediately available funds by the Trust if such proceeds are received prior to
1:00 p.m. local time at the office of the Trustee and otherwise on the next
Business Day. Upon distribution of the redemption proceeds by the Trustee, the
Trust Certificates called pursuant to the exercise of Call Rights and the Trust
Certificates selected by lot pursuant to this subsection shall be deemed to have
been surrendered for cancellation by the Trust, and the aggregate stated amount
of the outstanding Trust Certificates shall be reduced by the aggregate stated
amount of such Trust Certificates; provided that the right of a
Certificateholder to receive the Call Price will not be affected by any such
deemed surrender. Payment of redemption proceeds with respect to the
Certificates will be made to the Call Holder exercising the Call Rights.
(c) The Call Terms are as follows:
(i) The initial holder of the Call Rights is an affiliate of Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and such
affiliate may transfer the Call Rights, in whole or in part, to one or more
third parties in privately negotiated transactions;
(ii) A Call Holder that has met the exercise requirements set forth in
paragraph (c)(iii) of this Section 14 may, on the Call Date, exercise its
option to purchase, in whole or in part, an Authorized Denomination of
Certificates at the Call Price;
(iii) In order to exercise its Call Right on a Call Date, a Call
Holder must, not less than 30 days (or not less than three days in the case
of an announcement of any redemption of the Underlying Securities or other
unscheduled payment of the Underlying Securities or after receipt of notice
of termination of the Trust or not less than five
16
Business Days prior to the expiration of a tender offer for the Underlying
Securities) but not more than 60 days prior to such Call Date:
(1) notify the Trustee in writing of its intention to exercise
such Call Right (which notice is irrevocable, subject to Section
2.02(i)(v) of the Warrant Agreement) and whether such exercise is in
connection with a tender offer for the Underlying Securities. In the
event that such notice is provided in connection with a tender offer
for the Underlying Securities, if the exercising Holder did not
receive from the Warrant Agent notice of a Tender Offer, then such
Holder shall also provide the Warrant Agent with any information the
Holder may have from a third-party source indicating that such Tender
Offer is pending.
(2) deposit the Call Price with the Escrow Agent (the "Escrow
Deposit") to be held in escrow pursuant to an Escrow Agreement
reasonably satisfactory to the Trustee and substantially in the form
attached hereto as Exhibit D (to be entered into immediately preceding
delivery of the Call Price by such Call Holder to the Escrow Agent)
until such Call Price is paid by the Trustee to the Certificateholders
in accordance with paragraph (d) of this Section 14 or returned to the
exercising Holders pursuant to subsection (i) of Section 2.02 of the
Warrant Agreement, and
(3) provide the Trustee with any other documents customary for a
transaction of this nature, including a certificate of the Call Holder
certifying the solvency of such Call Holder on such date; provided
that the Call Holder need not provide any such solvency certificate if
the rating of the senior, unsecured long-term debt of the Call Holder,
or the Call Holder's credit support provider, if applicable, by
Moody's and S&P is in one of the investment grade categories of
Xxxxx'x and S&P, respectively, on such date.
The provision of this Section 14(c)(iii)(1) through (3) shall not apply if
Warrants are being exercised upon an acceleration of the Underlying Securities
and payment in full by the Underlying Securities Issuer of all amounts due upon
such acceleration.
(d) In connection with any exercise of the Call Rights, the Trustee
shall select by lot (or by such other reasonable procedure as may be established
by the Trustee) a stated amount of the outstanding Certificates to be
surrendered by the Certificateholders thereof to the Trustee upon any such
exercise, deliver such Certificates to the exercising Call Holder and the
proceeds of the Call Price shall be distributed pro rata among such
Certificateholders on the Call Date in accordance with the provisions of the
Warrant Agreement.
(e) The rights of the Certificateholders under the Trust Agreement and
the Certificates are limited by the terms, provisions and conditions of the
Trust Agreement and the Warrant Agreement with respect to the exercise of the
Call Rights by the Call Holder. The Certificateholders, by their acceptance of
Certificates, covenant and agree to tender any and all Certificates to the
Warrant Agent upon the Call Holder's exercise of Call Rights and deposit of the
Call Price with the Escrow Agent for such Certificates in accordance with the
applicable procedures in the Warrant Agreement.
17
(f) Upon receipt of a notice of a tender offer for the Underlying
Securities, the Trustee shall deliver notice of the tender offer to the Warrant
Agent and holders of Delivery Certificates (as defined in Section 2.02(d) of the
Warrant Agreement) within two Business Days after receipt of notice from the
Tender Offeror (as defined in the Warrant Agreement). Within two Business Days
of the expiration of the period for validly delivering tender offer exercise
notices pursuant to Section 2.02(i)(i) of the Warrant Agreement, the Trustee
shall (A) select by lot (or by such other reasonable procedure as may be
established by the Trustee) a stated amount of Certificates equal to the
aggregate stated amount of Certificates then outstanding multiplied by the
aggregate principal amount of Call Rights being exercised divided by the
aggregate principal amount of the outstanding Call Rights and (B) notify the
Certificateholders of the selected Certificates that, subject to Section 2.02(i)
of the Warrant Agreement, such Certificates will be purchased on the Call Date.
Upon the Trustee's receipt of the tender offer proceeds, the Call Price will be
distributed pursuant to Section 2.02(e) and Section 2.02(i)(vi) of the Warrant
Agreement pro rata to the Certificateholders whose Certificates have been
purchased and the tender offer proceeds will be distributed by the Trustee pro
rata to the exercising Call Holders pursuant to Section 2.02(i) of the Warrant
Agreement. Upon distribution of the Call Price and tender offer proceeds, the
Trust Certificates called pursuant to the exercise of Call Rights shall be
deemed to have been surrendered for cancellation by the Trustee and the
aggregate stated amount of the outstanding Trust Certificates shall be reduced
by the aggregate stated amount of such Trust Certificates; provided that the
right of a Certificateholder to receive the Call Price will not be affected by
any such deemed surrender.
Section 15. Amendments. Notwithstanding anything in the Trust
Agreement to the contrary, in addition to the other restrictions on modification
and amendment contained herein, the Trustee shall not enter into any amendment
or modification of the Trust Agreement that would adversely affect in any
material respect the interests of the Certificateholders or the Call Holders
without the consent of 100% of such Certificateholders or Call Holders, as the
case may be; provided, however, that no such amendment or modification will be
permitted if the Trustee has been advised by the Depositor that such amendment
or modification would alter the status of the Trust as a "grantor trust" for
federal income tax purposes. Further, no amendment shall be permitted pursuant
to paragraphs (vi), (vii) and (x) of Section 11.01(a) of the Standard Terms
without prior written confirmation by each Rating Agency that such amendment
will not result in a downgrading or withdrawal of its rating of the
Certificates. The Trustee may consult with counsel and shall be entitled to rely
upon an Opinion of Counsel for purposes of determining compliance with the
provisions of this Section 15.
Section 16. Voting of Underlying Securities, Modification of
Indenture. The Trustee, as holder of the Underlying Securities, has the right to
vote and give consents and waivers in respect of the Underlying Securities as
permitted by the Depository and except as otherwise limited by the Trust
Agreement. In the event that the Trustee receives a request from the Depository,
the Underlying Securities trustee or the Underlying Securities Issuer for its
consent to any amendment, modification or waiver of the Underlying Securities,
the Underlying Securities Indenture or any other document thereunder or relating
thereto, or receives any other solicitation for any action with respect to the
Underlying Securities, the Trustee shall mail a notice of such proposed
amendment,
18
modification, waiver or solicitation to each Certificateholder of record as of
such date. The Trustee shall request instructions from the Certificateholders as
to whether or not to consent to or vote to accept such amendment, modification,
waiver or solicitation. The Trustee shall consent or vote, or refrain from
consenting or voting, in the same proportion (based on the relative outstanding
principal balances of the Certificates) as the Certificates of the Trust were
actually voted or not voted by the Certificateholders thereof as of a date
determined by the Trustee prior to the date on which such consent or vote is
required; provided, however, that, notwithstanding anything in the Trust
Agreement to the contrary, the Trustee shall at no time vote on or consent to
any matter (i) unless such vote or consent would not (based on an Opinion of
Counsel) alter the status of the Trust as a "grantor trust" for federal income
tax purposes or result in the imposition of tax upon the Certificateholders, or
(ii) that would alter the timing or amount of any payment on the Underlying
Securities, including, without limitation, any demand to accelerate the
Underlying Securities, except in the event of a default under the Underlying
Securities or an event that with the passage of time would become an event of
default under the Underlying Securities and with the consent of 100% of the
Certificateholders, or (iii) that would result in the exchange or substitution
of any of the outstanding Underlying Securities pursuant to a plan for the
refunding or refinancing of such Underlying Securities except in the event of a
default under the Underlying Securities Indenture and only with the consent of
100% of the Certificateholders and 100% of the Call Holders. The Trustee shall
have no liability for any failure to act resulting from Certificateholders' or
Call Holders' late return of, or failure to return, directions requested by the
Trustee from the Certificateholders and Call Holders.
If an offer is made by the Underlying Securities Issuer to issue new
obligations in exchange and substitution for any of the Underlying Securities,
pursuant to a plan for the refunding or refinancing of the outstanding
Underlying Securities or any other offer is made for the Underlying Securities,
the Trustee shall notify the Certificateholders, the Call Holders and the Rating
Agencies of such offer promptly. The Trustee must reject any such offer unless
the Trustee is directed by the affirmative vote of 100% of the
Certificateholders and 100% of the Call Holders to accept such offer, the
Trustee has received the tax opinion described above and if the Trustee is so
directed, the Trustee shall promptly notify the Rating Agencies of such
direction accompanied by evidence of the affirmative vote of such
Certificateholders and Call Holders.
If an event of default under the Underlying Securities Indenture
occurs and is continuing, and if directed by 100% of the Certificateholders, the
Trustee shall vote the Underlying Securities in favor of directing, or take such
other action as may be appropriate to direct, the Underlying Securities trustee
to declare the unpaid principal amount of the Underlying Securities and any
accrued and unpaid interest thereon to be due and payable.
19
Section 17. Call Right Documentation. Simultaneously with the
execution hereof, the Depositor hereby directs the Trustee, in the name of and
on behalf of the Trust, to enter into a Warrant Agreement and any related
Warrant Certificates (as defined in the Warrant Agreement) evidencing the Call
Rights and to make representations contained therein on behalf of the Trust. At
the direction of the Depositor, the Trustee shall execute such further documents
as may be required to evidence any transfer of any or all of the rights,
interests or obligations under the Warrant Agreement and any related Warrant
Certificates.
Section 18. Third Party Beneficiary. The Escrow Agent and each Call
Holder shall be third party beneficiaries of this Trust Agreement.
Section 19. Nonpetition Covenant. Solely with respect to the Trust and
the Series and for no other purpose, Section 11.07 of the Standard terms is
hereby deleted and replaced with the following:
"Section 11.07. Nonpetition Covenant. Notwithstanding any prior
termination of this Trust Agreement, each of the Trustee (including any
Administrative Agent, Authenticating Agent and Paying Agent) and the Depositor
agrees that it shall not, until the date which is one year and one day after the
termination of the PREFERREDPLUS Trust Series QWS-2, acquiesce, petition or
otherwise invoke or cause the Trust to invoke the process of the United States,
any State or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government for the purpose of commencing or sustaining a case by
or against the Trust under a Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of such Trust or all or any part of the
property or assets of such Trust or ordering the winding up or liquidation of
the affairs of such Trust."
Section 20. Amendments to Standard Terms. Solely with respect to the
Trust and the Series and for no other purpose, the Standard Terms are hereby
amended as follows:
(a) Clause (iii) of Subsection (c) of Section 2.01 of the Standard
Terms shall be deleted and replaced with the following:
"at the time of delivery of the Underlying Securities, Depositor owns
such Underlying Securities, has the right to transfer its interest in such
Underlying Securities and such Underlying Securities are free and clear of any
lien, pledge, encumbrance, right, charge, claim or other security interest
(other than the lien created by this Trust Agreement); and"
(b) Subsection (e) of Section 2.01 of the Standard Terms shall be
deleted and replaced with the following:
"Any Trust created hereunder shall not engage in any business or
activities other than in connection with, or relating to, the holding,
protecting and preserving of the Deposited Assets and the issuance of the
Certificates and, if applicable, Call Rights, and other than those required
or authorized by this Trust Agreement or incidental to and necessary to
accomplish such activities. Any Trust created hereunder shall not issue or
20
sell any certificates or other obligations other than the Certificates or,
if applicable, Call Rights or otherwise incur, assume or guarantee any
indebtedness for money borrowed."
(c) Clause (v) of Subsection (b) of Section 4.08 of the Standard Terms
shall be deleted and replaced with the following:
"that Holders of Certificates receiving notice of Call Rights being
exercised with respect to the Certificates held by them shall not be
entitled to any interest on the Certificates for any period on and after
the Call Date, and the only remaining right of Holders of such Certificates
is to receive payment of the Call Price upon surrender of the Certificates
to the Warrant Agent; and"
(d) The first sentence of subsection (d) of Section 4.08 of the
Standard Terms shall be deleted and replaced with the following:
"Once such notice is mailed to a Holder, such Holder shall not be
entitled to any right as a Holder other than the right to receive payment
of the Call Price on the Call Date and the Certificates subject to the Call
Right shall be deemed to have been automatically surrendered to the Trust
for further transfer to the holder exercising its Call Right."
(e) Subsection (e) of Section 4.08 of the Standard Terms shall be
deleted and replaced with the following:
"At or prior to 12:00 noon on the Call Date, the holder of the Call
Right to be exercised shall deposit with the Escrow Agent by wire transfer
in same-day funds money sufficient to pay the Call Price of the
Certificates to be purchased on that date."
(f) Subsection (f) of Section 4.08 of the Standard Terms shall be
deleted and replaced with the following:
"This subsection has been intentionally left blank."
(g) Subsection (g) of Section 4.08 shall be deleted and replaced with
the following:
"Upon surrender of any Certificate that is purchased in part, the
Depositor shall execute and the Trustee shall authenticate and deliver to
the Holder a new Certificate equal in principal amount to the portion of
such surrendered Certificate not purchased."
21
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed by their respective authorized officers as of the date first
written above.
Xxxxxxx Xxxxx Depositor, Inc.,
as Depositor
By:
----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President
The Bank of New York,
not in its individual capacity
but as Trustee
By:
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
The Bank of New York,
as Securities Intermediary
By:
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
22
SCHEDULE I
PREFERREDPLUS [ ]% TRUST CERTIFICATES, SERIES QWS-2
UNDERLYING SECURITIES SCHEDULE
Underlying Securities: $[_________] 7.75% Notes (principal
amount $1,000 per note) due February
15, 2031 of the Underlying Securities
Issuer
Underlying Securities Indenture: Indenture dated as of June 29, 1998
among the Underlying Securities
Issuer, the Underlying Securities
Guarantor and the Underlying
Securities Trustee.
Underlying Securities Guarantor: Qwest Communications International
Inc., a Delaware corporation. Pursuant
to the guarantee endorsed by it on the
Underlying Securities, the Underlying
Securities Guarantor has guaranteed
the Underlying Securities to the
extent set forth in the Prospectus
Supplement.
Underlying Securities Issuer: Qwest Capital Funding, Inc., (formerly
US West Capital Funding, Inc.), a
Colorado corporation.
Underlying Securities Trustee: Bank One Trust Company, National
Association.
Underlying Securities 00000XXX0
CUSIP Number:
Underlying Securities February 14, 2001
Original Issue Date:
Underlying Securities $1,000,000,000 7.75% Notes due
Original Amount Issued: February 15, 2031 (principal amount
$1,000 per note)
Underlying Securities 333-64980
Commission Filing Number:
Underlying Securities February 15, 2031
Maturity Date:
Underlying Securities February 15, 2031
Principal Payment Date:
Underlying Securities February 15 and August 15, or if any
Interest Payment Dates: such date is not a business day, then
the next succeeding business day to
the persons in whose names the
Underlying Securities are registered
at the close of business on February 1
or August 1 prior to the payment date,
subject to certain exceptions.
Underlying Securities 7.75% per annum.
Interest Rate:
Underlying Securities February 1 and August 1.
Record Dates:
Underlying Securities None.
Collateral:
Underlying Securities None.
Amortization:
Underlying Securities Semi-annual.
Accrual Periods:
Underlying Securities The Underlying Securities are
Authorized Denomination denominated and payable in U.S.
and Specified Currency: dollars and are available in minimum
denominations of $1,000 and integral
multiples thereof.
Underlying Securities "Baa1" by Xxxxx'x and "BBB+" by S&P.
Rating as of Closing:
Underlying Securities Form: Book-entry security with DTC.
Underlying Securities In certain circumstances summarized in
Redemption: the Prospectus Supplement, the
Underlying Securities are redeemable
at the option of the Underlying
Securities Issuer, in whole or in
part, at any time at a redemption
price equal to the greater of (i) 100%
of the principal amount of the
Underlying Securities to be redeemed
or (ii) the sum of the present values
of the remaining scheduled payments of
principal and interest, exclusive of
interest accrued to the Redemption
Date, discounted to the date of
redemption on a semi-annual basis
(assuming a 360-day year consisting of
30-day months) at the Treasury Rate
(as defined in Prospectus Supplement)
plus 25 basis points plus accrued and
unpaid interest to the date of
redemption. Holders of the Underlying
Securities to be redeemed will receive
at least 15 days but not more than 60
days notice of that redemption.
EXHIBIT A
Standard Terms for Trust Agreements
(begins on next page)
EXHIBIT B
Form of Certificate
(begins on next page)
EXHIBIT C
Market Agent Agreement
(begins on next page)
EXHIBIT D
Form of Escrow Agreement
(begins on next page)
