Exhibit 4.10
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"),
dated as of June 30, 2000, is entered into by and among U S WEST Capital
Funding, Inc., a Colorado corporation, (the "Company"), U S WEST, Inc., a
Delaware corporation (the "Guarantor"), Qwest Communications International Inc.,
a Delaware corporation ("Qwest"), and Bank One Trust Company, National
Association, a national banking association, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Guarantor have heretofore executed and
delivered to the Trustee an Indenture, dated as of June 29, 1998 (the
"Indenture"), providing for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as provided in the Indenture;
WHEREAS, pursuant to an Agreement and Plan of Merger, dated July 18, 1999,
by and between the Guarantor and Qwest, as amended (the "Merger Agreement"), the
Guarantor is merging (the "Merger") with and into Qwest, the separate existence
of the Guarantor shall cease and Qwest shall survive and continue to exist as
the continuing corporation (the "Continuing Corporation");
WHEREAS, Section 5.02 of the Indenture provides, in part, that the
Guarantor may merge into any person provided (i) that the person is a
corporation which assumes by supplemental indenture all of the obligations of
Guarantor under the Guarantees (as defined in the Indenture) and under the
Indenture and (ii) that after giving effect thereto, no Default or Event of
Default (as those terms are defined in the Indenture) shall have occurred and be
continuing;
WHEREAS, Section 9.01(2) of the Indenture provides that, without the
consent of any Securityholders (as defined in the Indenture), the Company, the
Guarantor and the Trustee may enter into a supplemental indenture to evidence
the succession of another corporation to the Guarantor and the assumption by any
such successor, all as set forth in Article Five of the Indenture;
WHEREAS, the Guarantor has delivered, or caused to be delivered on its
behalf, to the Trustee (i) an Opinion of Counsel, stating that the Merger and
this First Supplemental Indenture comply with Article Five and the applicable
provisions of Article Nine of the Indenture and that all conditions precedent
provided for in the Indenture relating to the Merger and the execution and
delivery of this First Supplemental Indenture have been complied with and (ii) a
copy of Guarantor's Board Resolution authorizing the Merger; and
WHEREAS, all things necessary to authorize the assumption by the Continuing
Corporation of the Guarantor's obligations under the Guarantees and the
Indenture and to make this First Supplemental Indenture when executed by the
parties hereto a valid and binding amendment of and supplement to the Indenture
have been done and performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby mutually covenant and agree as follows:
SECTION 1. Assumption of Obligations.The Continuing Corporation hereby
expressly assumes, from and after the Effective Time (as defined in the Merger
Agreement), all of the obligations of the Guarantor under the Guarantees and the
Indenture.
SECTION 2. Succession and Substitution. The Continuing Corporation, from
and after the Effective Time, by virtue of the aforesaid assumption and the
delivery of this First Supplemental Indenture, shall succeed to and be
substituted for and may exercise every right and power of the Guarantor under
the Indenture and under the Guarantees with the same effect as if the Continuing
Corporation had been named as the Guarantor in the Indenture and under the
Guarantees.
SECTION 3. Representations and Warranties. The Continuing Corporation, as
of the date of execution of this First Supplemental Indenture, represents and
warrants that: (i) it is a corporation duly organized and validly existing under
the laws of the State of Delaware; (ii) it has full corporate power and
authority to execute and deliver this First Supplemental Indenture and to
perform its obligations under the Indenture, the Guarantees, and this First
Supplemental Indenture in accordance with their terms; and that (iii) the
execution, delivery and performance of this First Supplemental Indenture will
not violate, conflict with or constitute a breach of, or a default under its
certificate of incorporation or bylaws, or any other material agreement or
instrument to which it is a party or which is binding on it or its assets, and
will not result in the creation of any lien on, or security interest in, any of
its assets.
SECTION 4. Covenants. All covenants and agreements in this First
Supplemental Indenture, the Indenture, the Guarantees and by the Continuing
Corporation shall bind its respective successors and assigns, whether so
expressed or not.
SECTION 5. Requests and Notices. Pursuant to Section 11.02 of the
Indenture, from and after the Effective Time, any request, demand,
authorization, direction, notice, consent, waiver or act to Securityholders or
other document provided or permitted by the Indenture to be made upon, given or
furnished to, or filed with the Guarantor shall be addressed to the Continuing
Corporation at 1801 California Street, Denver, Colorado 80202, Attention:
General Counsel or at any other address previously furnished to the Trustee by
the Continuing Corporation.
SECTION 6. Separability. In case any provision in this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 7. No Third Party Benefit. Nothing in the First Supplemental
Indenture, express or implied, shall give to any Person, other than the parties
hereto and their successors under the Indenture, and the Securityholders of the
Securities, any benefit or any legal or equitable right, remedy or claim under
the Indenture, as amended by this First Supplemental Indenture.
SECTION 8. Continuance of Indenture: Effectiveness. This First Supplemental
Indenture supplements the Indenture and shall be a part of and subject to all
the terms thereof. The Indenture, as supplemented by this First Supplemental
Indenture, shall continue in full force and effect. This First Supplemental
Indenture shall become effective at the Effective Time.
SECTION 9. Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 10. Counterparts. This First Supplemental Indenture may be executed
in any number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
U S WEST CAPITAL FUNDING, INC.
By: /s/ ALLAN R. SPIES
Name: Allan R. Spies
Title: President
(SEAL)
Attest: /s/ THOMAS O. MCGIMPSEY
Name: Thomas O. McGimpsey
Title: Secretary
U S WEST, Inc.
By: /s/ ALLAN R. SPIES
Name: Allan R. Spies
Title: Executive Vice President
and Chief Financial Officer
(SEAL)
Attest: /s/ THOMAS O. MCGIMPSEY
Name: Thomas O. McGimpsey
Title: Assistant Secretary
QWEST COMMUNICATIONS INTERNATIONAL INC.
By: /s/ DRAKE S. TEMPEST
Name: Drake S. Tempest
Title: Executive Vice President,
General Counsel, Chief Administrative
Officer and Secretary
(SEAL)
Attest: /s/ YASH A. RANA
Name: Yash A. Rana
Title: Associate General Counsel and Assistant Secretary
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION
(successors in interest to
The First National Bank of
Chicago), as Trustee
By: /s/ STEVEN M. WAGNER
Name: Steven M. Wagner
Title: Director
(SEAL)
Attest: /s/ JEFFREY KINNEY
Name: Jeffrey Kinney
Title: Director
