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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 11, 1996
U S WEST, Inc.
(Exact name of registrant as specified in its charter)
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A Delaware Corporation Commission File IRS Employer Identification
(State of incorporation) Number 1-8611 No. 84-0926774
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7800 East Orchard Road, Englewood, Colorado 80111
(Address of principal executive offices, including Zip Code)
Telephone Number (303) 793-6500
(Registrant's telephone number, including area code)
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Item 7. Exhibits
Exhibit Description
4A Form of Distribution Agreement dated as of December 9, 1996, by and
among U S WEST Capital Funding, Inc., U S WEST, Inc. , Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner and Smith Incorporated, Goldman,
Sachs & Co., Lehman Brothers, Morgan Stanley & Co. Incorporated
Salomon Brothers Inc and Smith Barney Inc.
4B Form of Fixed Rate Note concerning the $500,000,000 U S WEST Capital
Funding, Inc. Medium-Term Notes due nine months or more from date of
issue, unconditionally guaranteed as to payment of principal premium,
if any, and interest by U S WEST, Inc.
4C Form of Floating Rate Note concerning the $500,000,000 U S WEST
Capital Funding, Inc. Medium-Term Notes due nine months or more
from date of issue, unconditionally guaranteed as to payment of
principal premium, if any, and interest by U S WEST, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
U S WEST, Inc.
/s/ STEPHEN E. BRILZ
By:___________________________
Stephen E. Brilz
Assistant Secretary
Dated: December 11, 1996
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EXHIBIT 4A
U S WEST CAPITAL FUNDING, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
among
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Goldman, Sachs & Co.
Lehman Brothers
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
Smith Barney Inc.
Dated: December 9, 1996
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Table of Contents
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SECTION 1.
(a) Appointment
(b) Sale of Notes
(c) Purchases as Principal
(d) Solicitations as Agent
(e) Reliance
SECTION 2.
(a)
(b) Additional Certifications
SECTION 3.
(a) Purchases as Principal
(b) Solicitations as Agent
(c) Administrative Procedures
SECTION 4.
(a) Copies of the Registration Statement
(b) Notice of Certain Proposed Filings and Certain Events
(c) Revisions of Prospectus -- Material Changes
(d) Earnings Statements
(e) Copies of the Prospectus
(f) Blue Sky Qualifications
(g) Copies of Public Reports
(h) Stand-Off Agreement
(i) Prospectus Revisions -- Periodic Financial Information
(j) Prospectus Revisions -- Audited Financial Information
(k) Suspension of Certain Obligations
SECTION 5.
(a) Compliance with the 1933 Act and the 1939 Act
(b) Legal Opinions
(c) Company Officers' Certificate
(d) US West Officers' Certificate
(e) Comfort Letters of Arthur Andersen LLP and Coopers & Lybrand L.L.P.
(f) Other Documents
SECTION 6.
SECTION 7.
SECTION 8.
(a) Reaffirmation of Representations and Warranties
(b) Subsequent Delivery of Certificates
(c) Subsequent Delivery of Legal Opinions
(d) Subsequent Delivery of Comfort Letters
SECTION 9.
SECTION 10.
SECTION 11.
SECTION 12.
(a) Termination of this Agreement
(b) Termination of Agreement to Purchase Notes as Principal
(c) General
SECTION 13.
SECTION 14.
SECTION 15.
SECTION 16.
SECTION 17.
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Page
1. Appointment as Agent 3
(a) Appointment 3
(b) Sale of Notes 3
(c) Purchases as Principal 3
(d) Solicitations as Agent 3
(e) Reliance 3
SECTION 2. Representations and Warranties 4
(a) 4
(b) Additional Certifications 4
SECTION 3. Purchases as Principal;
Solicitations as Agent 5
(a) Purchases as Principal 5
(b) Solicitations as Agent 5
(c) Administrative Procedures 5
SECTION 4. Covenants of the Company and U S WEST 6
(a) Copies of the Registration Statement 6
(b) Notice of Certain Proposed Filings and
Certain Events 6
(c) Revisions of Prospectus -- Material Changes 6
(d) Earnings Statements 6
(e) Copies of the Prospectus 7
(f) Blue Sky Qualifications 7
(g) Copies of Public Reports 7
(h) Stand-Off Agreement 7
(i) Prospectus Revisions -- Periodic Financial
Information 7
(j) Prospectus Revisions -- Audited Financial
Information 7
(k) Suspension of Certain Obligations 8
SECTION 5. Conditions of Agents' Obligations 8
(a) Compliance with the 1933 Act and the 1939 Act 8
(b) Legal Opinions 8
(c) Company Officers' Certificate 11
(d) US West Officers' Certificate 11
(e) Comfort Letters of Arthur Andersen LLP and
Coopers & Lybrand L.L.P. 11
(f) Other Documents 12
SECTION 6. Conditions of Company's Obligations 12
SECTION 7. Delivery of and Payment for Notes Sold
through an Agent 12
SECTION 8. Additional Covenants of the Company and
U S WEST 13
(a) Reaffirmation of Representations and Warranties 13
(b) Subsequent Delivery of Certificates 13
(c) Subsequent Delivery of Legal Opinions 13
(d) Subsequent Delivery of Comfort Letters 14
SECTION 9. Indemnification and Contribution 14
SECTION 10. Payment of Expenses 16
SECTION 11. Representations, Warranties, Indemnities
and Agreements to Survive Delivery 17
SECTION 12. Termination 18
(a) Termination of this Agreement 18
(b) Termination of Agreement to Purchase Notes
as Principal 18
(c) General 18
SECTION 13. Notices 19
SECTION 14. Governing Law; Forum 20
SECTION 15. Parties 20
SECTION 16. Prior Agreement 21
SECTION 17. Counterparts 21
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U S WEST CAPITAL FUNDING, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
December 9, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LEHMAN BROTHERS
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285-1200
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
SMITH BARNEY INC.
390 Greenwich Street
New York, New York 10013
Dear Sirs:
U S WEST Capital Funding, Inc., a Colorado corporation (the "Com-pany"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Goldman, Sachs & Co., Lehman Brothers, Lehman Brothers
Inc., Morgan Stanley & Co. Incorporated, Salomon Brothers Inc and Smith Barney
Inc. (each, an "Agent", and collectively, the "Agents") with respect to the
issue and sale by the Company of its Medium-Term Notes Due Nine Months or More
from Date of Issue (the "Notes"). The Notes are to be issued pursuant toan
Indenture, dated as of April 15, 1988, as amended by a First Supplemental
Indenture dated as of November 1, 1995 and as further amended, supplemented or
modified from time to time (as so amended, supplemented or modified, the
"Indenture"), among the Company, U S WEST, Inc., a Delaware corporation ("U S
WEST"), and First National Bank of Santa Fe, as trustee (the "Trustee"). The
Notes will be unconditionally guaranteed as to payment of principal, premium,
if any, and interest by U S WEST. As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $500,000,000 aggregate initial
offering price (or its equivalent, based upon the applicable exchange rate at
the time of issuance, in such foreign or composite currencies as the Company
shall designate at the time of issuance) of Notes to or through the Agents
pursuant to the terms of this Agreement. It is understood, however, that the
Company may from time to time authorize the issuance of additional Notes and
that such additional Notes may be sold to or through the Agents pursuant to
the terms of this Agreement, all as though the issu-ance of such Notes were
authorized as of the date hereof.
The Notes will have the benefit of a Guarantee (the "Guarantees") between
the Company and U S WEST. This Agreement provides both for the sale of Notes
by the Company to one or more Agents as principal for resale to investors and
other purchasers and for the sale of Notes by the Company directly to
investors (as may from time to time be agreed to by the Company and the
applicable Agent), in which case such Agent will act as an agent of the
Company in soliciting purchases of the Notes.
The Company and U S WEST have filed with the Securities and Exchange
Commission (the "SEC"), joint registration statements on Form S-3
(Registration Nos. 33-50049, 33-50049-01, 333-14865 and 333-14865-01) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accor-dance with Rule 415 of the rules and regulations of the SEC
under the 1933 Act (the "1933 Act Regulations"). Such registra-tion
statements have been declared effective by the SEC and the Indenture has been
qualified under the Trust Inden-ture Act of 1939, as amended (the "1939 Act").
Such registration statements (and any further regis-tration statements which
may be filed by the Company and U S WEST for the purpose of registering
additional Notes and in connection with which this Agreement is included or
incorporated by reference as an exhibit) and the prospectus constituting a
part thereof, and any prospectus supple-ment and pricing supplement relating
to the Notes, including all documents incor-porated therein by reference, as
from time to time amended or supplemented by the filing of documents pursuant
to the Securi-ties Exchange Act of 1934, as amended (the "1934 Act"), or the
1933 Act or otherwise, are re-ferred to herein as the "Registra-tion
Statement" and the "Prospec-tus," respective-ly, except that if any revised
prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
1. Appointment as Agent.
(a) Appointment. Subject to the terms and condi-tions stated herein
and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby agrees that Notes will be sold
exclusively to or through the Agents. The Company agrees that it will not,
without the consent of all such Agents, solicit any other agents to purchase
Notes or appoint any other agents to act on its behalf, or to assist it, in
the placement of the Notes; provided, however, the Company expressly reserves
the right to enter into an agreement or agreements substantially identical
hereto, upon notice to the Agents, with such other agent or agents as may
approach the Company from time to time for purposes of selling Notes with
specific terms to or through such agent or agents.
(b) Sale of Notes. The Company shall not sell or approve the
solicita-tion of purchases of Notes in excess of the amount which shall be
autho-rized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registra-tion
Statement. The Agents shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of Notes sold, or of
otherwise monitoring the availability of Notes for sale, under the
Registra-tion Statement.
(c) Purchases as Principal. The Agents shall not have any obligation
to purchase Notes from the Company as principal, but one or more Agents may
agree from time to time to purchase Notes as principal for resale to investors
and other purchasers determined by such Agent or Agents. Any such
purchase of Notes by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the
Company, such Agent, acting solely as agent for the Company and not as
principal, will solicit purchases of the Notes. Such Agent will communicate
to the Com-pany, orally, each offer to purchase Notes solicited by it on an
agency basis, other than those offers rejected by such Agent. Such Agent
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein. The Company
may accept or reject any proposed purchase of Notes, in whole or in part.
Such Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by it and accepted by the Company. Such Agent shall not have any
liability to the Company in the event that any such purchase is not
consum-mated for any reason. If the Company shall default on its obligation
to deliver Notes to a purchaser whose offer it has accepted, the Company shall
(i) hold such Agent harmless against any loss, claim or damage arising from or
as a result of such default by the Company and (ii) notwith-standing such
default, pay to such Agent any commission to which it would otherwise be
entitled.
(e) Reliance. The Company and the Agents agree that any Notes
purchased by one or more Agents as principal shall be pur-chased, and any
Notes the placement of which an Agent arranges as agent shall be placed by
such Agent, in reliance on the representations, warranties, covenants and
agreements of the Company and U S WEST contained herein and on the terms and
conditions and in the manner provided herein.
2. Representations and Warranties.
(a) The Company and U S WEST, jointly and severally, represent and
warrant to the Agents as of the date hereof, as of the date of each acceptance
by the Company of an offer for the purchase of Notes (whether to one or
more Agents as principal or through an Agent as agent), and as of the date of
each delivery of Notes (whether to one or more Agents as principal or through
an Agent as agent) (the date of each such delivery to one or more Agents as
prin-cipal being hereafter referred to as a "Settlement Date") (each of the
times refer-enced above being referred to herein as a "Representation Date"),
as follows:
(i) The Regis-tration Statement, including a prospectus relating to the
debt securities of the Company, has been filed with the SEC and has become
effective.
(ii) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus (including the documents
incorporated by reference therein) conformed in all respects to the
requirements of the 1933 Act, the 1939 Act, and the 1933 Act Regulations and
did not include any untrue statements of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and as of each applicable Representation
Date, the Registration Statement and the Prospectus will conform in all
respects to the requirements of the 1933 Act, the 1939 Act and the 1933 Act
Regulations and neither of such documents will include any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
foregoing does not apply to statements in or omissions from any such documents
based upon written information furnished to the Company by the Agents
specifically for use therein or based upon the Statement of Eligibility of the
Trustee under the Indenture or to statements in or omissions from such
Statement of Eligibility.
(b) Additional Certifications. Any certificate signed by any director
or officer of the Company or U S WEST and delivered to one or more Agents
or to counsel for the Agents in connection with an offering of Notes to one or
more Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company or U S WEST, as the case may be, to
such Agent or Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent and
the Com-pany, Notes shall be purchased by such Agent as principal. Such
purchases shall be made in accordance with terms agreed upon by one or more
Agents and the Company (which terms, unless otherwise agreed, shall, to the
extent applicable, include those terms specified in Exhibit A hereto and be
agreed upon orally, with written confirmation prepared by such Agent or Agents
and mailed to the Company). An Agent's commit-ment to purchase Notes as
principal shall be deemed to have been made on the basis of the
representa-tions and warranties of the Company and U S WEST herein contained
and shall be subject to the terms and conditions herein set forth. Unless the
context otherwise requires, references herein to "this Agreement" shall
include the agreement of one or more Agents to purchase Notes from the Company
as principal. Each purchase of Notes, unless otherwise agreed, shall be at a
discount from the principal amount of each such Note equivalent to the
applicable commis-sion set forth in Schedule A hereto for a Note of identical
maturity. The Agents may engage the services of any other broker or dealer in
connec-tion with the resale of the Notes pur-chased by them as principal and
may allow any portion of the discount received in connection with such
purchases from the Company to such brokers and dealers. At the time of each
purchase of Notes by one or more Agents as principal, such Agent or Agents
shall specify the requirements for the stand-off agreement, officers'
certifi-cates, opinions of counsel and comfort letter pursuant to Sections
4(h), 8(b), 8(c) and 8(d) hereof.
(b) Solicitations as Agent. On the basis of the represen-tations and
warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Company and an Agent, such Agent, as an agent of
the Company, will use its reasonable efforts to solicit offers to pur-chase
the Notes upon the terms and conditions set forth herein and in the
Prospectus. The Agents are not authorized to appoint sub-agents with respect
to Notes sold through them as agent. All Notes sold through an Agent as agent
will be sold at 100% of their principal amount unless otherwise agreed to by
the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing
at any time for any period of time or perma-nently. As soon as practicable
after receipt of instructions from the Company, such Agent will suspend
solicitation of purchases from the Company until such time as the Company has
advised such Agent that such solicita-tion may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicita-tion made by such Agent as
set forth in Schedule A here-to.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified
in Exhibit A hereto shall be agreed upon by the Company and the applicable
Agent or Agents and specified in a pricing supple-ment to the Prospectus
(each, a "Pricing Supplement") to be prepared in connection with each sale of
Notes. Except as may be otherwise specified in the applicable Pricing
Supple-ment, the Notes will be issued in denomi-nations of U.S. $1,000 or any
larger amount that is an inte-gral multiple of U.S. $1,000. Adminis-trative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Company, U S WEST, the Agents and Citibank, N.A., as
authenticating and paying agent (the "Proce-dures"). The Agents, the Company
and U S WEST agree to perform, and the Company agrees to cause Citibank, N.A.
to agree to perform, their respective duties and obligations specifically
provided to be performed by them in the Procedures.
4. Covenants of the Company and U S WEST.
The Company and U S WEST covenant with the Agents as follows:
(a) Copies of the Registration Statement. The Company and U S WEST
will furnish to counsel for the Agents one signed copy of the Registration
Statement, including all exhibits, relating to the Notes in the form it became
effective and of all amendments thereto and will furnish to the Agents copies
of the Registration Statement, including all exhibits, in the form it became
effective and of all amendments thereto.
(b) Notice of Certain Proposed Filings and Certain Events. The
Company and U S WEST will advise the Agents promptly of any amendment or
supplementation of the Registration Statement or the Prospectus and will not
effect such amendment or supplementation without the consent of counsel for
the Agents; the Company and U S WEST will also advise the Agents of any
official request made by the SEC for an amendment to the Registration
Statement or Prospectus or for additional information with respect thereto and
of the institution by the SEC of any stop order proceedings in respect of
the Registration Statement, and will use their best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued. The Company and U S WEST will not file any document pursuant to
the 1934 Act which is deemed to be incorporated by reference in the Prospectus
unless counsel to the Agents shall have been previously advised thereof.
(c) Revisions of Prospectus -- Material Changes. If, at any time when
a prospectus relating to the Notes is required to be delivered under the
1933 Act, any event occurs as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if
it is necessary at any time to amend or supplement the Registration Statement
or the Prospectus to comply with the 1933 Act, the Company and U S WEST will
immediately notify the Agents to cease the solicitation of offers to purchase
the Notes in their capacity as Agent and to cease sales of any Notes the
Agents may then own as principal, and the Company and U S WEST promptly will
prepare and file with the SEC an amendment or supplement which will correct
such untrue statement or omission or effect such compliance.
(d) Earnings Statements. U S WEST and, to the extent separately
required pursuant to Rule 158 under the Act, the Company will make generally
available to their security holders as soon as practicable, but not later than
ninety days after the close of the period covered thereby, earning
statements (in form complying with the provisions of Rule 158) covering a
twelve month period beginning not later than the first day of the fiscal
quarter of U S WEST and the Company next following the effective date of the
Registration Statement (as defined in Rule 158) with respect to each sale of
Notes.
(e) Copies of the Prospectus. The Company and U S WEST will furnish
to the Agents copies of the Prospectus and all amendments and supplements
thereto, in each case as soon as available and in such quantities as are
reasonably requested.
(f) Blue Sky Qualifications. The Company and U S WEST will use their
respective best efforts to arrange for the qualification of the Notes for sale
and the determination of their eligibility for investment under the laws
of such jurisdictions as the Agents designate and will continue such
qualifications in effect so long as required for their distribution.
(g) Copies of Public Reports. The Company and U S WEST will furnish
to the Agents, at the earliest time the Company and U S WEST make the same
available to others, a copy of their annual reports and other financial
reports furnished or made available to the public generally.
(h) Stand-Off Agreement. If specified by the applicable Agent or
Agents in connection with a purchase of Notes as principal, neither the
Company nor U S WEST will, without such Agents prior consent, between the date
of any agreement to purchase such Notes and the Settlement Date with
respect to such purchase, offer to sell any debt securities of the Company or
U S WEST having a maturity of more than one year, except as may otherwise be
provided in any such agreement.
(i) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the
date on which there shall be released to the general public interim financial
statement information related to the Company or U S WEST with respect to any
of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company and U S
WEST shall furnish such information to the Agents, confirmed in writing, and
shall cause the Prospectus to be amended or supplemented to include or
incorporate by reference capsule financial information with respect to the
results of operations of the Company or U S WEST, as the case may be, for the
period between the end of the preceding fiscal year and the end of such
quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding of such amounts, or as shall be required by the 1933 Act or the
1933 Act Regulations.
(j) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company or
U S WEST for the preceding fiscal year, the Company and U S WEST shall
cause the Registration Statement and the Prospectus to be amended, whether by
the filing of documents or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements, or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(k) Suspension of Certain Obligations. The Company and U S WEST shall
not be required to comply with the provisions of subsections (i) or (j)
of this Section during any period from the time (1) the Agents shall have
suspended solicitation of pur-chases of the Notes in their capacities as
agents pursuant to a request from the Company and (2) no Agent shall then hold
any Notes purchased as principal pursuant hereto, until the time the Company
shall determine that solicitation of pur-chases of the Notes should be resumed
or an Agent shall subsequently purchase Notes from the Company as principal.
5. Conditions of Agents' Obligations.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to pur-chase the Notes as agent of the Company, and the
obligations of any pur-chasers of the Notes sold through an Agent as agent,
will be subject to the accuracy of the repre-sentations and warranties on the
part of the Company and U S WEST herein and to the accuracy of the statements
of the officers of the Company and U S WEST made in any certificate furnished
pursuant to the pro-visions hereof, to the performance and observance by the
Company and U S WEST of all covenants and agreements herein contained on their
respective parts to be performed and observed and to the following additional
condi-tions prec-edent:
(a) Compliance with the 1933 Act and the 1939 Act. On the date
hereof, the Indenture shall be qualified under the 1939 Act and no stop order
suspending the effectiveness of the Registration Statement, as amended from
time to time, shall be in effect, no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company, U S WEST, or the Agents,
shall be contemplated by the SEC.
(b) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(1) Opinion of Counsel to the Company and U S WEST. The favorable
opinion of Stephen E. Brilz, counsel to the Company and U S WEST, or other
counsel satisfactory to the Agents, to the effect that:
(i) The Company is a corporation in good standing, duly
incorporated and validly existing under the laws of the State of Colorado, and
is authorized by its Articles of Incorporation to transact the business in
which it is engaged, as set forth in the Prospectus;
(ii) U S WEST is a corporation in good standing, duly incorporated
and validly existing under the laws of the State of Delaware, and is
authorized by its Certificate of Incorporation to transact the business in
which it is engaged, as set forth in the Prospectus;
(iii) The execution, delivery and performance of the Indenture by
the Company and U S WEST have been duly authorized by all necessary corporate
action on the part of the Company and U S WEST; the Indenture has been duly
and validly executed and delivered by the Company and U S WEST and (assuming
due authorization, execution and delivery by the Trustee) constitutes the
legal, valid, and binding agreement of the Company and U S WEST enforceable
against each of them in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting enforcement of creditors'
rights or by general equitable principles; and the Indenture has been duly
qualified under the 1939 Act;
(iv) The Notes, when duly executed and authenticated pursuant to the
Indenture and delivered in accordance with the provisions of this Agreement,
will constitute legal, valid, and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights or by general equitable principles;
(v) The execution, delivery and performance of this Agreement by
the Company and U S WEST have been duly authorized by all necessary corporate
action on the part of the Company and U S WEST, and this Agreement has been
duly and validly executed and delivered by each of the Company and U S WEST;
(vi) All federal and state regulatory consents, approvals,
authorizations, or other orders (except as to state securities or "blue sky"
laws, as to which such counsel need express no opinion) legally required for
the execution by the Company and U S WEST of the Indenture, and the issuance
and sale of the Notes and the Guarantees pursuant to the terms of this
Agreement, have been obtained;
(vii) Except as to financial statements and schedules contained therein,
which such opinion need not pass upon, the Registration Statement (including
the Prospectus) complies, and at the time it became effective complied, as to
form in all material respects with the requirements of the 1933 Act and the
applicable instructions, rules and regulations of the SEC thereunder;
(viii) The Guarantee, when duly executed pursuant to the Indenture and
delivered in accordance with the provisions of this Agreement, will constitute
legal, valid, and binding obligations of U S WEST, as guarantor, enforceable
against U S WEST in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights or by
general equitable principles;
(ix) The Registration Statement is effective under the 1933 Act and, to the
best of such counsel's knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the SEC; and
(x) Enforceability and legal, valid, and binding nature of the agreements and
obligations of the Company and U S WEST set forth in the Indenture, the
Guarantees, the Notes and this Agreement (the "Agreements") are not affected
by, and the performance of the obligations set forth in such Agreements, the
issuance and sale of the Notes and the Guarantees and the consummation of the
transactions contemplated in such Agreements are not prevented or restricted
by, any action, suit, proceeding, order, or ruling relating to, or issued or
arising as a result of, the Divestiture (as hereinafter defined).
In rendering such opinion, such counsel may rely (i) as to matters of New
York law upon the opinion referred to in Section 5(b)(2) hereof without
independent verification; and (ii) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Company,
U S WEST, and public officials.
In addition, such counsel shall state that it has not independently
verified the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus and does not assume any
responsibility for the accuracy, completeness or fairness of such statements;
however, nothing has come to such counsel's attention which leads such counsel
to believe that the Registration Statement and the Prospectus (except as to
the financial statements and the notes thereto, and the other financial and
statistical data included therein, as to which such counsel need express no
opinion), and each amendment or supplement thereto, as of their respective
effective or issue dates or, if an Annual Report on Form 10-K has been filed
by the Company or U S WEST with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent such filing, and
at the date of such opinion, contained or contains any untrue statements of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as amended or supplemented as of the date of such opinion
(or, if such opinion is being delivered in connection with the purchase of
Notes by an Agent as principal pursuant to Section 8(c) hereof, at the date of
any agreement by the Agent to purchase Notes as principal and at the
Settlement Date with respect thereto), contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Except as specifically provided in clause (ix) above, such opinion may
state that it does not address the impact on the opinions contained therein of
any litigation or ruling relating to the divestiture by American Telephone and
Telegraph Company of ownership of its operating telephone companies (the
"Divestiture").
(2) Opinion of Counsel to the Agents. The favorable opinion of Brown
& Wood LLP, counsel to the Agents, covering the matters referred to in
subsection (b)(1) under the subheadings (i), (ii), (iii), (iv), (v), (vii),
(viii) and (ix) and the penultimate paragraph of subsection (b)(1) above,
subject to the final paragraph of subsection (b)(1) above, and with respect to
such other matters as the Agents may reasonably request. In rendering such
opinion, Brown & Wood LLP may rely as to matters of Colorado law, upon the
opinion referred to in Section 5(b)(1) without independent verification.
(c) Company Officers' Certificate. On the date hereof, the Agents
shall have received a certificate of the President, any Vice President, an
assistant secretary or an assistant treasurer, and the chief financial
officer, chief accounting officer, treasurer, controller, or an assistant
treasurer or assistant controller of the Company in which such officers shall
state that the representations and warranties of the Company in this Agreement
are true and correct as if made at and as of such date, that the Company
has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to such date, that no stop
order suspending the effectiveness of the Registration Statement is in effect
and no proceedings for that purpose are pending or are contemplated by the
SEC, and that, subsequent to the date of the most recent financial statements
in the Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company and its subsidiaries, taken
as a whole, except as set forth in or contemplated by the Prospectus.
(d) US West Officers' Certificate. On the date hereof, the Agents
shall have received a certificate of the President, any Vice President, an
assistant secretary or an assistant treasurer, and the chief financial
officer, chief accounting officer, treasurer, controller, or an assistant
treasurer or controller of U S WEST in which such officers shall state that
the representations and warranties of U S WEST in this Agreement are true and
correct as if made at and as of such date, that U S WEST has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such date, that no stop order suspending
the effectiveness of the Registration Statement is in effect and no
proceedings for that purpose are pending or are contemplated by the SEC, and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of U S WEST and its subsidiaries, taken as a
whole, except as set forth in or contemplated by the Prospectus.
(e) Comfort Letters of Arthur Andersen LLP and Coopers & Lybrand
L.L.P. On the date hereof, the Agents shall have received a letter from each
of Arthur Andersen LLP and Coopers & Lybrand L.L.P. addressed to the Company,
U S WEST and the Agents, dated as of the date hereof and in form and substance
satis-fac-tory to the Agents.
(f) Other Documents. On the date hereof and on each Settle-ment Date,
counsel to the Agents shall have been fur-nished with such docu-ments and
opinions as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representa-tions and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company and U S WEST in connection with the issuance and sale of Notes as
herein contem-plated shall be satisfactory in form and substance to the Agents
and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agree-ment may be
terminated by the applicable Agent or Agents by written notice to the Company
and U S WEST at any time and any such termination shall be without liability
of any party to any other party, except that the cove-nant regarding provision
of an earnings statement set forth in Section 4(d) hereof, the indemnity and
contribution agreement set forth in Section 9 hereof, the provi-sions
concerning payment of expenses under Section 10 hereof, the provisions
concerning the representations, warranties, indemnities and agreements to
survive delivery of Section 11 hereof, the provisions relating to notices set
forth in Section 13 hereof, the provisions relating to governing law and forum
set forth in Section 14 hereof, and the provisions relating to parties set
forth in Section 15 hereof shall remain in effect.
6. Conditions of Company's Obligations.
The obligation of the Company to deliver the Notes upon payment therefor
will be subject to the conditions that (i) the Indenture will be qualified
under the 1939 Act, (ii) no stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall be in effect, and
(iii) no proceedings for that purpose shall be pending before, or threatened
by, the SEC.
If any condition specified in this Section 6 shall not have been
fulfilled when required to be fulfilled, this Agreement may be terminated by
the Company by written notice to the Agents at any time and such termination
shall be without liability of any party to any other party, except that the
covenant regarding provision of an earnings statement set forth in Section
4(d) hereof, the indemnity and contribution agreement set forth in Section 9
hereof, the provisions regarding payment of expenses under Section 10 hereof,
the provisions concerning the representations, warranties, indemnities and
agreements to survive delivery of Section 11 hereof, the provisions relating
the notices set forth in Section 13 hereof, the provisions relating to
governing law and forum set forth in Section 14 hereof, and the provisions
relating to parties set forth in Section 15 hereof shall remain in effect.
7. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to such Agent. If
such failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the
period such funds were credited to the Company's account.
8. Additional Covenants of the Company and U S WEST.
The Company and U S WEST covenant and agree with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance
by the Company of an offer for the purchase of Notes (whether to one or more
Agents as principal or through an Agent as agent), and each delivery of Notes
(whether to one or more Agents as principal or through an Agent as agent),
shall be deemed to be an affirmation that the represen-tations and warran-ties
of the Company and U S WEST contained in this Agreement and in any certificate
theretofore delivered to the Agents pursuant hereto are true and correct at
the time of such acceptance or sale, as the case may be, and an undertaking
that such representa-tions and warranties will be true and correct at the time
of delivery to such Agent or Agents or to the purchaser or its agent, as the
case may be, of the Note or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it is under-stood
that such representations and warranties shall relate to the Registration
Statement and Prospectus as amended and supple-mented to each such time).
(b) Subsequent Delivery of Certificates. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or sup-plement providing solely for a change in
the interest rate or formula applicable to the Notes or a change in the
principal amount of Notes remaining to be sold or similar changes), or there
is filed with the SEC any document incorporated by reference into the
Prospectus or (if required in connection with the purchase of Notes by one or
more Agents as principal) the Company sells Notes to such Agent or Agents as
principal, each of the Company and U S WEST shall furnish or cause to be
furnished to the Agent(s) forthwith a certifi-cate in form satisfac-tory to
the Agent(s) to the effect that the statements contained in the certificates
referred to in Sections 5(c) and 5(d) hereof which were last furnished to the
Agents are true and correct at the time of such amend-ment or supplement or
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Regis-tration
State-ment and the Prospectus as amend-ed and supple-mented to such time) or,
in lieu of such certifi-cates, certificates of the same tenor as the
certificates referred to in Sections 5(c) and 5(d) hereof, modi-fied as
necessary to relate to the Regis-tration Statement and the Pro-spectus as
amended and supple-mented to the time of delivery of such certifi-cates.
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes or a change in the
principal amount of Notes remaining to be sold or similar changes), or there
is filed with the SEC any document incorporated by reference into the
Prospectus (other than a document setting forth or incorporating by reference
financial statements or other information as of and for a fiscal quarter,
unless specifically requested by all of the Agents) or (if required in
connection with the purchase of Notes by one or more Agents as principal) the
Company sells Notes to such Agent or Agents as principal, the Company and U S
WEST shall furnish or cause to be furnished to the Agent(s) and to counsel to
the Agents a written opinion of counsel to the Company and U S WEST,
satisfactory to the Agent(s), dated the date of delivery of such opinion, in
form satisfac-tory to the Agent(s), of the same tenor as the opinion referred
to in Section 5(b)(1) hereof but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supple-mented to the
time of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agent(s) with a letter
to the effect that the Agent(s) may rely on such last opinion to the same
extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registra-tion Statement and the Prospectus as amended and supple-mented to the
time of delivery of such letter authorizing reli-ance).
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
docu-ment incorporated by refer-ence into the Prospectus which contains
additional financial information, or (if required in connection with the
purchase of Notes by one or more Agents as principal) the Company sells Notes
to such Agent or Agents as principal, the Company and U S WEST shall cause
Arthur Andersen LLP forthwith to furnish to the Agent(s) a letter, dated the
date of filing of such amendment, supplement or document with the SEC, or the
date of such sale, as the case may be, in form satis-factory to the Agent(s),
of the same tenor as the portions of the letter referred to in Section 5(g)
hereof, but modified to relate to the Regis-tration Statement and Prospectus,
as amended and supple-mented to the date of such letter, and with such other
changes as may be necessary to reflect changes in the financial state-ments
and other information derived from the accounting records of the Company and U
S WEST; provided, however, that if the Registration Statement or the
Prospectus is amended or supplemented solely to include financial information
as of and for a fiscal quarter, Arthur Andersen LLP may limit the scope of
such letter to the unaudited financial statements included in such amendment
or supplement, unless any other information included therein of an accounting,
financial, or statistical nature is of such a nature that, in the reasonable
judgment of the Agent(s), such letter should cover such other information.
9. Indemnification and Contribution.
(a) The Company and U S WEST, jointly and severally, will indemnify and
hold each Agent harmless against any losses, claims, damages, or liabilities,
joint or several, to which such Agent may become subject, under the 1933 Act
or otherwise, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse each Agent for any legal or other expenses
reasonably incurred by such Agent, as such expenses are incurred in connection
with investigating or defending any such loss, claim, damage, liability
or action or amounts paid in settlement of any litigation or investigation or
proceeding related thereto if such settlement is effected with the written
consent of the Company and U S WEST; provided, however, that the Company and U
S WEST will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any of such documents in reliance upon and in conformity with written
information furnished to the Company or U S WEST by the Agents specifically
for use therein or in reliance upon and in conformity with the Statement of
Eligibility of the Trustee under the Indenture.
(b) The Agents will indemnify and hold harmless the Company and U S WEST
against any losses, claims, damages, or liabilities to which they may
become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or U S WEST by
the Agents specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company or U S WEST, as such expenses are
incurred in connection with investigating or defending any such loss, claim,
damage, liability, or action or amounts paid in settlement of any litigation
or investigation or proceeding related thereto if such settlement is effected
with the consent of the Agents.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 9 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. The indemnifying party or
parties shall not be liable under this Agreement with respect to any
settlement made by any indemnified party or parties without prior written
consent by the indemnifying party or parties to such settlement.
(d) If the indemnification provided for in this Section 9 is unavailable
or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages, or liabilities referred to in subsection (a) or (b) above in such
proportion as is appropriate to reflect the relative benefits received by the
Company and U S WEST on the one hand and the Agents on the other from the
offering of the Notes and also to reflect the relative fault of the Company
and U S WEST on the one hand and the Agents on the other in connection with
the statements or omissions which resulted in such losses, claims, damages, or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company and U S WEST on the one hand and the
Agents on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering of Notes by the Agents (before deducting
expenses) received by the Company and U S WEST bear to the total underwriting
discounts and commissions received by the Agents. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company, U S
WEST, or the Agents and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages, or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the Agents shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Notes sold by such Agents and distributed to the public
were offered to the public exceeds the amount of any damages which such Agents
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company and U S WEST under this Section 9
shall be in addition to any liability which the Company or U S WEST may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls each Agent within the meaning of the Act or the
1934 Act; the Agents' obligations under this Section 9 shall be in addition to
any liability which the Agents may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company or U S WEST, to
each officer of the Company or U S WEST who has signed the Registration
Statement, and to each person, if any, who controls the Company or U S WEST
within the meaning of the 1933 Act or the 1934 Act.
10. Payment of Expenses.
The Company will pay all expenses incident to the perfor-mance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration State-ment and all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agree-ment;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of Notes in book-entry
form;
(d) The fees and disbursements of the Company's accoun-tants and
counsel, of the Trustee and its counsel, and of any calculation agent or
exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securi-ties laws in
accordance with the provisions of Section 4(f) hereof, including filing fees
and the reasonable fees and disburse-ments of counsel for the Agents in
connection there-with and in connec-tion with the preparation of any Blue Sky
or Legal Investment Survey;
(g) The printing and delivery to the Agents in such quanti-ties as are
reasonably requested of copies of the Registration State-ment and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the Prospectus and any amendments
or supple-ments thereto in connection with solicitations or confirma-tions of
sales of the Notes;
(h) The preparation, reproducing and delivery to the Agents of copies of
the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(k) The fees and expenses incurred with re-spect to any filing with the
National Association of Securi-ties Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
(m) The cost of providing any CUSIP or other identifi-cation numbers for
the Notes.
11. Representations, Warranties, Indemnities and Agreements to Sur-vive
Delivery.
All representations, warranties, indemnities and agreements contained in
this Agreement or in certifi-cates of officers of the Company or U S WEST
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Agents
of the Company, or U S WEST, or any of their officers, directors or any
controlling person, and shall survive each delivery of and payment for any of
the Notes. In no event shall the Company or U S WEST be liable to the Agents
for damages on account of loss of anticipated profits.
12. Termination.
(a) Termination of this Agreement. This Agreement (exclud-ing any
agreement hereunder by one or more Agents to purchase Notes as principal) may
be terminated, for any reason at any time, by any Agent as to itself or by the
Company as to all or any of the Agents upon the giving of 7 days written
notice of such termination to the other parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may termi-nate any agreement hereunder by such
Agent or Agents to purchase Notes as principal, immediate-ly upon notice to
the Company and U S WEST, at any time prior to the Settlement Date relating
there-to if (i) there has been, since the respective dates as of which
informa-tion is given in the Registration Statement, any change in the
financial condi-tion of the Company or of U S WEST and its subsidiaries
consid-ered as one enterprise, or in the earnings, affairs, or business
prospects of the Company or of U S WEST and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
the effect of which is, in the judgment of such Agent or Agents, so material
and adverse as to make it impracticable to market the Notes or enforce
contracts for the sale thereof; or (ii) trading in any securities of the
Company or U S WEST shall have been suspended by the SEC or the New York Stock
Exchange, or trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such exchange; or (iii) a banking morato-rium shall have been
declared either by Federal or New York State authorities or a banking
moratorium shall have been declared by the relevant authori-ties in the
country or countries of origin of any foreign currency or currencies in which
the Notes are denominated or payable, or (iv) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which in the financial markets in the United States is such as to
make it, in the judgment of such Agent or Agents, impracticable to market the
Notes or enforce contracts for the sale thereof; or (v) the rating assigned by
any nationally recognized securities rating agency to any debt securities of
the Company or U S WEST as of the date of the agreement to purchase the Notes
shall have been lowered since that date or any such rating agency shall have
publicly announced that it has any of such debt securities under consideration
for possible downgrade.
(c) General. In the event of any such termination, no party will have
any liability to any other party hereto, except that (i) the Agents shall
be entitled to any commissions earned in accordance with the third paragraph
of Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall
own any Notes purchased by it as principal with the intention of reselling
them or (b) an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or his agent of the Notes
relating thereto has not occurred, the conditions set forth in Sections 5 and
6 hereof shall remain in effect until such Notes are so resold or deliv-ered,
as the case may be, and (iii) the covenant set forth in Section 4(d) hereof,
the indemnity and contribution agreements set forth in Section 9 hereof, and
the provisions of Sections 10, 11, 13, 14 and 15 hereof shall remain in
effect.
13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail
or by telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
U S WEST Capital Funding, Inc.
7800 East Orchard Road
Englewood, Colorado 80111
Attention: Treasurer
Telecopy No.: (303) 793-6657
If to U S WEST:
U S WEST, Inc.
7800 East Orchard Road
Englewood, Colorado 80111
Attention: Treasurer
Telecopy No.: (303) 793-6657
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Telecopy No.: (212) 363-7609
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285-1200
Attention: MTN Department
Telecopy No.: (212) 528-1718
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Attention: Manager-Continuously Offered Products
Telecopy No.: (212) 764-7490
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: Medium-Term Note Department
Telecopy No.: (212) 783-2274
Smith Barney Inc.
390 Greenwich Street - 4th Floor
New York, New York 10013
Attention: MTN Product Management/Origination
Telephone: (212) 723-5123
Telecopy No.: (212) 723-8854
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
14 Governing Law; Forum.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company or U S WEST against any Agent in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Company, U S WEST and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the control-ling persons and officers and directors
referred to in Section 9 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or
any provision herein con-tained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respec-tive successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall
be deemed to be a successor by reason merely of such purchase.
16. Prior Agreement.
This Agreement supersedes the Distribution Agreement, dated October 13,
1995, among the Company, U S WEST and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Lehman Brothers,
Lehman Brothers Inc., Morgan Stanley & Co. Incorporated and Salomon Brothers
Inc.
17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed coun-terparts hereof shall
constitute a single instrument.
If the foregoing is in accordance with the Agents' under-standing of our
agreement, please sign and return to the Company a counter-part hereof,
whereupon this instrument along with all counter-parts will become a binding
agreement among the Agents, U S WEST and the Company in accordance with its
terms.
Very truly yours,
U S WEST CAPITAL FUNDING, INC.
By:_________________________________
Name:
Title:
U S WEST, INC.
By:_________________________________
Name:
Title:
<PAGE>
Confirmed and Accepted, as of the date
first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_______________________________
Name:
Title:
__________________________________
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
By:_______________________________
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:_______________________________
Name:
Title:
SALOMON BROTHERS INC
By:________________________________
Name:
Title:
SMITH BARNEY INC.
By_________________________________
Name:
Title:
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis or Bases:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
If LIBOR,
__ LIBOR Telerate
__ LIBOR Reuters
Designated LIBOR Currency:
Initial Interest Rate, if any:
Spread and/or Spread Multiplier, if any:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date:
Fixed Interest Rate:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Stated Maturity Date:
Purchase Price: ___%, plus accrued interest, if any, from
______________________
Settlement Date and Time:
Specified Currency:
Authorized Denominations:
Additional/Other Terms:
Also, in connection with the purchase of Notes by one or more Agents as
principal, agreement as to whether the following will be required:
Officers' Certificates pursuant to Section 8(b) of the Distribution
Agree-ment.
Legal Opinion pursuant to Section 8(c) of the Distribution Agree-ment.
Comfort Letter pursuant to Section 8(d) of the Distribution Agree-ment.
Stand-off Agreement pursuant to Section 4(h) of the Distribution Agree-ment.
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
<TABLE>
<CAPTION>
<S> <C>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- - ----------------------------------- -----------------
From 9 months to less than 1 year . .125%
From 1 year to less than 18 months .150
From 18 months to less than 2 years .200
From 2 years to less than 3 years .250
From 3 years to less than 4 years .350
From 4 years to less than 5 years .450
From 5 years to less than 6 years .500
From 6 years to less than 7 years .550
From 7 years to less than 10 years .600
From 10 years to less than 15 years .625
From 15 years to less than 20 years .700
From 20 years to 40 years .750
Greater than 40 years.. *
</TABLE>
* As agreed to by the Company and the applicable Agent at the time of sale.
(..continued)
<PAGE>
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTA-TIVE OF THE
DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.1/
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR.1/
<TABLE>
<CAPTION>
<S> <C> <C>
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. FXR- _____________ ____________ _____________________
</TABLE>
U S WEST CAPITAL FUNDING, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
IINTEREST PAYMENT DATE(S) : DEFAULT RATE
[ ] May 15 and November 15
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE:
REDUCTION
</TABLE>
_______________________
1/ This paragraph applies to global Notes only.
<PAGE>
OPTIONAL REPAYMENT
DATE(S):
[ ] CHECK IF A
DISCOUNT NOTE:
Issue Price: %
Total Amount of OID:
Initial Accrual Period:
Yield to Maturity:
SPECIFIED CURRENCY:
[ ] United States dollars
[ ] Other:
OPTION TO ELECT PAYMENT
IN SPECIFIED CURRENCY (only
applicable if Specified Currency
is other than United States dollars):
[ ] Yes
[ ] No
EXCHANGE RATE AGENT:
AUTHORIZED DENOMINATIONS:
[ ] $1,000 and integral multiples thereof
[ ] Other:
DEFAULT RATE: %
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
<PAGE>
U S WEST Capital Funding, Inc., a Colorado corporation (the "Company", which
terms include any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of , on the
Stated Maturity Date specified above (or any Redemption Date or Optional
Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity Date, Redemption Date or Optional Repayment Date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the Interest Rate per annum
specified above, until the prin-cipal hereof is paid or duly made available
for payment, and (to the extent that the payment of such interest shall be
legally enforceable) at the Default Rate per annum, if any, specified above on
any overdue principal, premium, if any, and/or interest, if any. The Company
will pay interest in arrears on each Interest Payment Date, if any, specified
above (each, an "Interest Payment Date"), commencing with the first Interest
Payment Date next succeeding the Original Issue Date specified above, and on
the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the holder of this
Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will be computed on the basis of a 360-day year of
twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no interest
has been paid or duly provided for with respect to this Note) to, but
excluding, the applicable Interest Payment Date or the Maturity Date, as the
case may be (each, an "Interest Period"). The interest so pay-able, and
punctually paid or duly provided for, on any Interest Payment Date will,
subject to certain exceptions described herein, be paid to the person in whose
name this Note (or one or more predecessor Notes) is registered at the close
of business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"); pro-vided, however, that interest payable on the Maturity Date
will be payable to the person to whom the princi-pal hereof and premium, if
any, hereon shall be payable. Any such interest not so punctually paid or
duly provided for ("Defaulted Interest") will forthwith cease to be payable to
the holder on any Record Date, and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed
by the Issuing and Paying Agent (as defined on the reverse hereof), notice
whereof shall be given to the holder of this Note by the Issuing and Paying
Agent not less than 10 calendar days prior to such Special Record Date or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided for in the Indenture (as defined on the reverse hereof).
Payment of principal, premium, if any, and interest, if any, in respect
of this Note due on the Maturity Date will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, a duly completed election form as
contemplated on the reverse hereof) at the corporate trust office of the
Issuing and Paying Agent maintained for that purpose in the Borough of
Manhattan, The City of New York, currently located at 111 Wall Street, New
York, New York 10043, or at such other paying agency as the Company may
determine; provided, however, that if such payment is to be made in a
Specified Currency other than United States dollars as set forth below, such
payment will be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed election
form) is presented and surrendered at the aforementioned office of the Issuing
and Paying Agent in time for the Issuing and Paying Agent to make such payment
in such funds in accordance with its normal procedures. Payment of interest
due on any Interest Payment Date other than the Maturity Date will be made by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register maintained at the aforementioned office
of the Issuing and Paying Agent; provided, however, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or
more in aggregate principal amount of Notes (whether having identical or
different terms and provisions) will be entitled to receive interest payments
on such Interest Payment Date by wire transfer of immediately available funds
if appropriate wire transfer instruc-tions have been received in writing by
the Issuing and Paying Agent not less than 15 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Issuing and Paying Agent shall remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest, if any, shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be, to
the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order
to close in The City of New York; provided, however, that if the Specified
Currency is other than United States dollars and any payment is to be made in
the Specified Currency in accordance with the provisions hereof, such day is
also not a day on which banking institutions are authorized or required by
law, regulation or executive order to close in the Principal Financial Center
(as defined below) of the country issuing the Specified Currency unless the
Specified Currency is the European Currency Unit ("ECU"), in which case such
day is also not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor Money Rates Service (or is not a
day designated as an ECU non-settlement day by the ECU Banking Association)
or, if ECU non-settlement days do not appear on that page (and are not so
designated), a day that is not a day on which payments in ECU cannot be
settled in the international interbank market. "Principal Financial Center"
means (i) the capital city of the country issuing the Specified Currency
(except as described in the above with respect to ECU) or (ii) the capital
city of the country to which the Designated LIBOR Currency, if applicable,
relates (or, in the case of ECU, Luxembourg), except in such case, that with
respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, Frankfurt,
Amsterdam, Milan (solely in the case of clause (i) above) and Zurich,
respectively.
The Company is obligated to make payment of principal, premium, if any,
and interest, if any, in respect of this Note in the Specified Currency (or,
if the Specified Currency is not at the time of such payment legal tender for
the payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is
other than United States dollars, any such amounts so payable by the Company
will be converted by the Exchange Rate Agent specified above into United
States dollars for payment to the holder of this Note; provided, however,
that the holder of this Note may elect to receive such amounts in the
Specified Currency pursuant to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or
interest, if any, in respect of this Note in the Specified Currency, any
United States dollar amount to be received by the holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Company for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Notes scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this
Note by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest, if any, in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Issuing and Paying Agent at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest, if any, and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Issuing and Paying Agent, but written notice
of any such revocation must be received by the Issuing and Paying Agent on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars and the
holder of this Note shall have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or
interest, if any in respect of this Note in the Specified Currency and if the
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to the holder of this Note by making such
payment in United States dollars on the basis of the Market Exchange Rate (as
defined below), computed by the Exchange Rate Agent, on the second Business
Day prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as otherwise specified on the face hereof. The "Market Exchange Rate" for the
Specified Currency other than United States dollars or a composite currency
means the noon dollar buying rate in The City of New York for cable transfers
for such Specified Currency as certified for customs purposes by (or if not so
certified, as otherwise determined by) the Federal Reserve Bank of New York.
Any payment made under such circumstances in United States dollars will not
constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest, if any, in respect
of this Note in the Specified Currency and if such composite currency is
unavailable due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United States
dollars on the basis of the equivalent of the composite currency in United
States dollars. The component currencies of the composite currency for this
purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the Market Exchange Rate on the second Business Day prior to the
required payment or, if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be replaced by an amount in such single currency equal to the
sum of the amounts of the consolidated Component Currencies expressed in such
single currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced by
the amounts of such two or more currencies, the sum of which shall be equal to
the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth
on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms
set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature of one of its authorized officers, or on behalf of
the Trustee by the manual signature of an authorized officer of the Trustee's
authenticating agent, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, U S WEST Capital Funding, Inc. has caused this Note
to be executed, manually or by facsimile, and its corporate seal or a
facsimile of its corporate seal to be imprinted hereon.
Dated:
U S WEST Capital Funding, Inc.
By:_______________________________
James T. Anderson
President
(SEAL)
By:_______________________________
J. Roger Fox
Assistant Treasurer
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein, issued
under the Indenture described herein.
FIRST NATIONAL BANK OF SANTA FE
By CITIBANK, N.A., as Authenticating Agent
By:___________________________
Authorized Officer
<PAGE>
GUARANTEE OF U S WEST, INC.
FOR VALUE RECEIVED, U S WEST, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Guarantor"), hereby
unconditionally guarantees to the holder of the Note upon which this Guarantee
is endorsed the due and punctual payment of the principal, premium, if any,
and interest, if any, on, said Note, when and as the same shall become due and
payable, whether at maturity, upon redemption or repayment, or otherwise,
according to the terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal, premium, if any, and/or interest, if
any, on said Note is due and payable, whether U S WEST Capital Funding, Inc.,
a Colorado corporation (the "Company"), has available the funds to make such
payment as the same shall become due and payable. In case of the failure of
the Company punctually to pay any such principal, premium, if any, or
interest, if any, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable, whether at
maturity, upon redemption or repayment, or otherwise, and as if such payment
were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Note or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the holder of said
Note with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to said Note or
indebtedness evidenced thereby, and all demands whatsoever and covenants that
this Guarantee will not be discharged except by complete performance of the
obligations contained in said Note and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Note against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the holders of all of the Notes
then outstanding, be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal, premium,
if any, and interest, if any, on, all Notes of the Company known as
"Medium-Term Notes Due Nine Months or More from Date of Issue" shall have been
paid in full or payment thereof shall have been provided for in accordance
with said Indenture.
Notwithstanding anything to the contrary contained herein, if following
any payment of principal, premium, if any, or interest, if any, by the Company
in respect of the Notes to the holders of the Notes it is determined by a
final decision of a court of competent jurisdiction that such payment shall be
avoided by a trustee in bankruptcy (including any debtor-in-possession) as a
preference under 11 U.S.C Section 547 and such payment is paid by such holder
to such trustee in bankruptcy, then, and to the extent of such repayment, the
obligations of the Guarantor hereunder shall remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Note until the certificate of authentication of such Note
shall have been signed by the Trustee or on its behalf by the Trustee's
authenticating agent.
This Guarantee shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, U S WEST, Inc. has caused this Guarantee to be
executed, manually or by facsimile, and its corporate seal or a facsimile of
its corporate seal to be imprinted hereon.
U S WEST, Inc.
By:______________________________
James T. Anderson
Vice President and Treasurer
By:_______________________________
Stephen E. Brilz
Assistant Secretary
(SEAL)
_________________________________
<PAGE>
[REVERSE OF NOTE]
U S WEST CAPITAL FUNDING, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of April 15, 1988, as amended by a First Supplemental Indenture dated
as of November 1, 1995, and as further amended, modified or supplemented from
time to time (as so amended, modified or supplemented, the "Indenture"), among
the Company, U S WEST, Inc., a Delaware corporation ("U S WEST"), and First
National Bank of Santa Fe, as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the holders of the Debt Securities, and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. Citibank, N.A. ("Citibank"), pursuant to an agreement with U S
WEST and the Company dated December 3, 1996, will act as paying agent ("Paying
Agent") for the payment of principal, premium, if any, and interest, if any,
on, this Note as well as the registrar (the "Security Registrar"). The
Trustee has appointed Citibank as the authenticating agent (the
"Authenticating Agent"), with respect to this Note. Citibank, as Paying
Agent, Security Registrar and Authenticating Agent together with any
successors in such capacities, is hereinafter referred to as the "Issuing and
Paying Agent." This Note is one of the series of Debt Securities designated
as "Medium-Term Notes Due Nine Months or More From Date of Issue" (the
"Notes"). All terms used but not defined in this Note specified on the face
hereof or in an Addendum hereto shall have the meanings assigned to such terms
in the Indenture.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated
Maturity Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with
unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 90 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemp-tion
Percentage specified on the face hereof (as adjusted by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof) multiplied by the
unpaid principal amount of this Note to be redeemed. The Initial Redemption
Percentage shall decline at each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction, if any, specified on the face
hereof until the Redemp-tion Price is 100% of unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same
terms as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
relevant Optional Repayment Date. For this Note to be repaid, this Note must
be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Issuing and Paying Agent at its corporate
trust office not more than 60 nor less than 20 calendar days prior to the
relevant Optional Repayment Date. Exercise of such repayment option by the
holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of
the holder hereof upon the presentation and surrender hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the holder of this Note in the event of redemption,
repayment or acceleration of maturity will be equal to (i) the Amortized Face
Amount (as defined below) as of the date of such event, plus (ii) with respect
to any redemption of this Note, the Initial Redemption Percentage specified on
the face hereof (as adjusted by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof) minus 100% multiplied by the Issue Price
specified on the face hereof (the "Issue Price"), net of any portion of such
Issue Price which has been paid prior to the date of redemption, or the
portion of the Issue Price (or the net amount) proportionate to the portion of
the unpaid principal amount to be redeemed, plus (iii) any accrued interest to
the date of such event the payment of which would constitute qualified stated
interest payments within the meaning of Treasury Regulation 1.1273-1(c) under
the Internal Revenue Code of 1986, as amended (the "Code"). The "Amortized
Face Amount" of this Note, if it is a Discount Note, means an amount equal to
(i) the Issue Price hereof plus (ii) the aggregate portions of the original
issue discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" hereof within the meaning of Section 1273(a)(2)
of the Code, whether denominated as principal or interest, over the Issue
Price) which shall have accrued hereon pursuant to Section 1272 of the Code
(without regard to Section 1272(a)(7) of the Code) from the date of issue of
this Note to the date of determination, minus (iii) any amount considered as
part of the "stated redemption price at maturity" hereof which has been paid
from the date of issue to the date of determination.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and U S WEST and the rights of the holders of the Debt Securities at
any time by the Company, U S WEST and the Trustee with the consent of the
holders of not less than a majority of the aggregate principal amount of all
Debt Securities at the time outstanding and affected thereby. The Indenture
also contains provisions permitting the holders of not less than a majority of
the aggregate principal amount of the outstanding Debt Securities of any
series, on behalf of the holders of all such Debt Securities, to waive
compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Debt Securities
of any series, in certain instances, to waive, on behalf of all of the holders
of Debt Securities of such series, certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the holder of this Note
shall be conclusive and binding upon such holder and upon all future holders
of this Note and other Notes issued upon the registration of transfer hereof
or in exchange heretofore or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company or U S WEST,
which is absolute and unconditional, to pay principal, premium, if any, and
interest, if any, in respect of this Note or the Guarantee, respectively, at
the times, places and rate of formula, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the
principal hereof premium, if any, or interest hereon is payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the holder hereof or
by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Issuing and Paying Agent and any agent of the Company or the
Issuing and Paying Agent may treat the holder in whose name this Note is
registered as the owner thereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Issuing and Paying Agent nor any such
agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State.
<PAGE>
_____________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Note, shall be construed as though they were written out in full according to
applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian ________
TEN ENT - as tenants by the entireties (Minor) (Cust)
JT TEN - as joint tenants with right of
survivorship and not as tenants in common under Uniform Gifts to Minors Act_____________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
__________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
_____________________________|______________________________________________
____________________________________________________________________________
Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________________________
the within Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer said Note on the books of the Trustee, with full power of
substitution in the premises.
<TABLE>
<CAPTION>
<S> <C>
Dated:__________________________________ _______________________________________________
_______________________________________________
Notice: The signature(s) on this assignment must
correspond with the name(s) as written upon the face of
the within Note in every particular, without alteration or
enlargement or any change whatsoever.
</TABLE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms
at a price equal to 100% of the principal amount to be repaid, together with
unpaid interest accrued hereon to the relevant Optional Repayment Date, to the
undersigned, at
____________________________________________________________________________
___________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Issuing and Paying Agent must receive at
its corporate trust office, not more than 60 nor less than 20 calendar days
prior to the Optional Repayment Date, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if
the Specified Currency specified on the face hereof is other than United
States dollars, the minimum Authorized Denomination specified on the face
hereof)) which the holder elects to have repaid and specify the denomination
or denominations (which shall be an Authorized Denomination) of the Notes to
be issued to the holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the
portion not being repaid).
<TABLE>
<CAPTION>
<S> <C>
Principal Amount
to be Repaid: __________________ ______________________________
---------------------------------
Notice: The signature(s) on this
Date:_________________________ Option to Elect Repayment must
correspond with the name(s) as
written upon the face of the
within Note in every particular
without alteration or enlargement
or any change whatsoever.
</TABLE>
(..continued)
EXHIBIT 4C
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.1/
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR.1/
<TABLE>
<CAPTION>
<S> <C> <C>
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. FLR-____ ______________________ ____________________
</TABLE>
U S WEST CAPITAL FUNDING, INC.
MEDIUM-TERM NOTE
(Floating Rate)
<TABLE>
<CAPTION>
<S> <C> <C>
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate Designated CMT Maturity Index:
</TABLE>
DESIGNATED LIBOR CURRENCY:
<TABLE>
<CAPTION>
<S> <C> <C>
INDEX MATURITY: INITIAL INTEREST RATE: INITIAL INTEREST RESET DATE:
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: INTEREST PAYMENT DATE(S):
</TABLE>
_______________________________
1/ This paragraph applies to global Notes only.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT INTEREST PERIOD: CALCULATION AGENT:
DATE(S):
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
Total Amount of OID:
Initial Accrual Period:
Yield to Maturity:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN
[ ] United States dollars SPECIFIED CURRENCY (only applicable
[ ] Other: if Specified Currency is other than
United States dollars):
[ ] Yes
[ ] No
</TABLE>
EXCHANGE RATE AGENT:
AUTHORIZED DENOMINATIONS:
[ ] $1,000 and integral multiples
thereof
[ ] Other:
DEFAULT RATE: %
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER ADDITIONAL PROVISIONS:
<PAGE>
U S WEST Capital Funding, Inc., a Colorado corporation (the "Company",
which terms include any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of , on the
Stated Maturity Date specified above (or any Redemption Date or Optional
Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity Date, Redemption Date or Optional Repayment Date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof with respect to one or
more Interest Rate Bases specified above until the principal hereof is paid or
duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum, if any,
specified above on any overdue principal, premium and/or interest, if any.
The Company will pay interest in arrears on each Interest Payment Date, if
any, specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date; provided, however, that if the Original
Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date next succeeding the Original Issue Date to the
holder of this Note on the Record Date with respect to such second Interest
Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no interest
has been paid or duly provided for with respect to this Note) to, but
excluding, the applicable Interest Payment Date or the Maturity Date, as the
case may be (each, an "Interest Period"). The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will,
subject to certain exceptions described herein, be paid to the person in whose
name this Note (or one or more predecessor Notes) is registered at the close
of business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"); provided, however, that interest payable on the Maturity Date will
be payable to the person to whom the principal hereof and premium, if any,
hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to the
holder on any Record Date, and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed
by the Issuing and Paying Agent (as defined on the reverse hereof) notice
whereof shall be given to the holder of this Note by the Issuing and Paying
Agent not less than 10 calendar days prior to such Special Record Date or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided for in the Indenture (as defined on the reverse hereof).
<PAGE>
Payment of principal, premium, if any, and interest, if any, in respect
of this Note due on the Maturity Date will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, a duly completed election form as
contemplated on the reverse hereof) at the corporate trust office of the
Issuing and Paying Agent maintained for that purpose in the Borough of
Manhattan, The City of New York, currently located at 111 Wall Street, New
York, New York 10043, or at such other paying agency as the Company may
determine; provided, however, that if such payment is to be made in a
Specified Currency other than United States dollars as set forth below, such
payment will be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed election
form) is presented and surrendered at the aforementioned office of the Issuing
and Paying Agent in time for the Issuing and Paying Agent to make such payment
in such funds in accordance with its normal procedures. Payment of interest
due on any Interest Payment Date other than the Maturity Date will be made by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register maintained at the aforementioned office
of the Issuing and Paying Agent; provided, however, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or
more in aggregate principal amount of Notes (whether having identical or
different terms and provisions) will be entitled to receive interest payments
on such Interest Payment Date by wire transfer of immediately available funds
if appropriate wire transfer instructions have been received in writing by the
Issuing and Paying Agent not less than 15 calendar days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Issuing and
Paying Agent shall remain in effect until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and/or
interest, if any, shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and
after the Maturity Date to the date of such payment on the next succeeding
Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order
to close in The City of New York; provided, however, that if the Specified
Currency is other than United States dollars and any payment is to be made in
the Specified Currency in accordance with the provisions hereof, such day is
also not a day on which banking institutions are authorized or required by
law, regulation or executive order to close in the Principal Financial Center
(as defined below) of the country issuing the Specified Currency unless the
Specified Currency is the European Currency Unit ("ECU"), in which case such
day is also not a day that appears as an ECU non-settlement day on the display
designated as "ISDE"
<PAGE>
on the Reuter Monitor Money Rates Service (or is not a day designated as an
ECU non-settlement day by the ECU Banking Association) or, if ECU
non-settlement days do not appear on that page (and are not so designated), a
day that is not a day on which payments in ECU cannot be settled in the
international interbank market; provided, further, that if LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day (as
defined below). "London Business Day" means a day on which dealings in the
Designated LIBOR Currency (as defined below) are transacted in the London
interbank market. "Principal Financial Center" means (i) the capital city of
the country issuing the Specified Currency (except as described in the above
with respect to ECU) or (ii) the capital city of the country to which the
Designated LIBOR Currency, if applicable, relates (or, in the case of ECU,
Luxembourg), except in such case, that with respect to United States dollars,
Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian
lire and Swiss francs, the "Principal Financial Center" shall be The City of
New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan (solely in the case of
clause (i) above) and Zurich, respectively.
The Company is obligated to make payment of principal, premium, if any,
and interest, if any, in respect of this Note in the Specified Currency (or,
if the Specified Currency is not at the time of such payment legal tender for
the payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is
other than United States dollars, any such amounts so payable by the Company
will be converted by the Exchange Rate Agent specified above into United
States dollars for payment to the holder of this Note; provided, however,
that the holder of this Note may elect to receive such amounts in the
Specified Currency pursuant to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or
interest, if any, in respect of this Note in the Specified Currency, any
United States dollar amount to be received by the holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Company for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Notes scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this
Note by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest, if any, in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Issuing and Paying Agent at its corporate trust office in The City of New
<PAGE>
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest, if any, and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Issuing and Paying Agent, but written notice
of any such revocation must be received by the Issuing and Paying Agent on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars and the
holder of this Note shall have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or
interest, if any, in respect of this Note in the Specified Currency and if the
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to the holder of this Note by making such
payment in United States dollars on the basis of the Market Exchange Rate (as
defined below), computed by the Exchange Rate Agent, on the second Business
Day prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as otherwise specified on the face hereof. The "Market Exchange Rate" for the
Specified Currency other than United States dollars on a composite currency
means the noon dollar buying rate in The City of New York for cable transfers
for such Specified Currency as certified for customs purposes by (or if not so
certified, as otherwise determined by) the Federal Reserve Bank of New York.
Any payment made under such circumstances in United States dollars will not
constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal of, any premium, if any, and/or interest, if any, in
respect of this Note in the Specified Currency and if such composite currency
is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to the holder of this Note by making such payment
in United States dollars. The amount of each payment in United States dollars
shall be computed by the Exchange Rate Agent on the basis of the equivalent of
the composite currency in United States dollars. The component currencies of
the composite currency for this purpose (collectively, the "Component
Currencies" and each, a "Component Currency") shall be the currency amounts
that were components of the composite currency as of the last day on which the
composite currency was used. The equivalent of the composite currency in
United States dollars shall be calculated by aggregating the United States
dollar equivalents of the Component Currencies. The United States dollar
equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the Market Exchange Rate on the second
Business Day prior to the required payment or, if such Market Exchange Rate is
not then available, on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified on
the face hereof.
<PAGE>
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be replaced by an amount in such single currency equal to the
sum of the amounts of the consolidated Component Currencies expressed in such
single currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced by
the amounts of such two or more currencies, the sum of which shall be equal to
the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth
on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms
set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature of one of its authorized officers, or on behalf of
the Trustee by the manual signature of an authorized officer of the Trustee's
authenticating agent, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, U S WEST Capital Funding, Inc. has caused this Note
to be executed, manually or by facsimile, and its corporate seal or a
facsimile of its corporate seal to be imprinted hereon.
Dated:
U S WEST Capital Funding, Inc.
By:_______________________________
James T. Anderson
President
(SEAL)
By:_______________________________
J. Roger Fox
Assistant Treasurer
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein, issued
under the Indenture described herein.
FIRST NATIONAL BANK OF SANTA FE
By CITIBANK, N.A., as Authenticating Agent
By:___________________________
Authorized Officer
<PAGE>
GUARANTEE OF U S WEST, INC.
FOR VALUE RECEIVED, U S WEST, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Guarantor"), hereby
unconditionally guarantees to the holder of the Note upon which this Guarantee
is endorsed the due and punctual payment of the principal, premium, if any,
and interest, if any, on, said Note, when and as the same shall become due and
payable, whether at maturity, upon redemption or repayment, or otherwise,
according to the terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal, premium, if any, and/or interest, if
any, on, said Note is due and payable, whether U S WEST Capital Funding, Inc.,
a Colorado corporation (the "Company"), has available the funds to make such
payment as the same shall become due and payable. In case of the failure of
the Company punctually to pay any such principal, premium, if any, or
interest, if any, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable, whether at
maturity, upon redemption or repayment, or otherwise, and as if such payment
were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Note or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the holder of said
Note with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to said Note or
indebtedness evidenced thereby, and all demands whatsoever and covenants that
this Guarantee will not be discharged except by complete performance of the
obligations contained in said Note and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Note against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the holders of all of the Notes
then outstanding, be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal, premium,
if any, and interest, if any, on, all Notes of the Company known as
"Medium-Term Notes Due Nine Months or More from Date of Issue" shall have been
paid in full or payment thereof shall have been provided for in accordance
with said Indenture.
Notwithstanding anything to the contrary contained herein, if following
any payment of principal, premium, if any, or interest, if any, by the Company
in respect of the Notes to the holders of the Notes it is determined by a
final decision of a court of competent jurisdiction that such payment shall be
avoided by a trustee in bankruptcy (including any debtor-in-possession) as
<PAGE>
a preference under 11 U.S.C Section 547 and such payment is paid by such
holder to such trustee in bankruptcy, then, and to the extent of such
repayment, the obligations of the Guarantor hereunder shall remain in full
force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Note until the certificate of authentication of such Note
shall have been signed by the Trustee or on its behalf by the Trustee's
authenticating agent.
This Guarantee shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, U S WEST, Inc. has caused this Guarantee to be
executed, manually or by facsimile, and its corporate seal or a facsimile of
its corporate seal to be imprinted hereon.
U S WEST, Inc.
By:______________________________________
James T. Anderson
Vice President and Treasurer
By:_______________________________________
Stephen E. Brilz
Assistant Secretary
(SEAL)
<PAGE>
[REVERSE OF NOTE]
U S WEST CAPITAL FUNDING, INC.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of April 15, 1988, as amended by a First Supplemental Indenture dated
as of November 1, 1995, and as further amended, modified or supplemented from
time to time (as so amended, modified or supplemented, the "Indenture"), among
the Company, U S WEST, Inc., a Delaware corporation ("U S WEST"), and First
National Bank of Santa Fe, as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the holders of the Debt Securities, and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. Citibank, N.A. ("Citibank"), pursuant to an agreement with U S
WEST and the Company dated December 9, 1996, will act as paying agent (the
"Paying Agent") for the payment of principal, premium, if any, and interest,
if any, on, this Note, as well as the registrar (the "Security Registrar").
The Trustee has appointed Citibank as the authenticating agent (the
"Authenticating Agent"), with respect to this Note. Citibank, as Paying
Agent, Security Registrar and Authenticating Agent, together with any
successors in such capacities, is hereinafter referred to as the "Issuing and
Paying Agent". This Note is one of the series of Debt Securities designated
as "Medium-Term Notes Due Nine Months or More From Date of Issue" (the
"Notes"). All terms used but not defined in this Note specified on the face
hereof or in an Addendum hereto shall have the meanings assigned to such terms
in the Indenture.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated
Maturity Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with
unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 90 nor less than 30 calendar
days prior to the Redemption Date and in
<PAGE>
accordance with the provisions of the Indenture. The "Redemption Price" shall
initially be the Initial Redemption Percentage specified on the face hereof
(as adjusted by the Annual Redemption Percentage Reduction, if any, specified
on the face hereof) multiplied by the unpaid principal amount of this Note to
be redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified on the face hereof until the Redemption Price is
100% of unpaid principal amount to be redeemed. In the event of redemption of
this Note in part only, a new Note of like tenor for the unredeemed portion
hereof and otherwise having the same terms as this Note shall be issued in the
name of the holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
relevant Optional Repayment Date. For this Note to be repaid, this Note must
be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Issuing and Paying Agent at its corporate
trust office not more than 60 nor less than 20 calendar days prior to the
relevant Optional Repayment Date. Exercise of such repayment option by the
holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of
the holder hereof upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof as
a Discount Note, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to (i) the
Amortized Face Amount (as defined below) as of the date of such event, plus
(ii) with respect to any redemption of this Note, the Initial Redemption
Percentage specified on the face hereof (as adjusted by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof) minus 100%
multiplied by the Issue Price specified on the face hereof (the "Issue
Price"), net of any portion of such Issue Price which has been paid prior to
the date of redemption, or the portion of the Issue Price (or the net amount)
proportionate to the portion of the unpaid principal amount to be redeemed,
plus (iii) any accrued interest to the date of such event the payment of which
would constitute qualified stated interest payments within the meaning of
Treasury Regulation 1.1273-1(c) under the Internal Revenue Code of 1986, as
amended (the "Code"). The "Amortized Face Amount" of this Note, if the
Interest Category of this Note is specified on the face hereof as a Discount
Note, means an amount equal to (i) the Issue Price hereof plus (ii) the
aggregate portions of the original issue discount (the excess of the amounts
considered as part of the "stated redemption price at maturity" hereof within
the meaning of Section 1273(a)(2) of the Code, whether denominated as
principal or interest, over the Issue Price) which shall have accrued hereon
pursuant to Section 1272 of the Code (without regard to Section 1272(a)(7) of
the Code) from the date of issue of this Note to the date of determination,
minus (iii) any amount considered as part of the "stated
<PAGE>
redemption price at maturity" hereof which has been paid from the date of
issue to the date of determination.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", an "Inverse Floating Rate Note",
an Original Issue Discount Note or as having an Addendum attached or having
"Other/Additional Provisions" apply, in each case relating to a different
interest rate formula, this Note shall be designated as a "Regular Floating
Rate Note" and, except as set forth below or on the face hereof, shall bear
interest at the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by
the Spread Multiplier, if any, in each case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; provided, however, that the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(Ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth below
or on the face hereof, this Note shall bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the period, if
any, from the Original Issue Date to the Initial Interest Reset Date shall be
the Initial Interest Rate and (z) the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date specified on the face hereof to
the Maturity Date shall be the Fixed Interest Rate specified on the face
hereof or, if no such Fixed Interest Rate is specified, the interest rate in
effect hereon on the day immediately preceding the Fixed Rate Commencement
Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth below or
on the face hereof, this Note shall bear interest at the Fixed Interest Rate
minus the rate determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any; provided, however, that, unless otherwise
specified on the face hereof, the interest rate hereon shall not be less than
zero. Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each Interest
Reset Date; provided, however, that the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate.
<PAGE>
Unless otherwise specified on the face hereof, the interest rate with
respect to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as set forth above or on the face hereof,
the interest rate in effect on each day shall be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as hereinafter defined) immediately preceding such
Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the most recent Interest Reset Date. If any Interest Reset Date
would otherwise be a day that is not a Business Day, such Interest Reset Date
shall be postponed to the next succeeding Business Day, except that if LIBOR
is an applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
The "Interest Determination Date" with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate
will be the second Business Day immediately preceding the applicable Interest
Reset Date; the "Interest Determination Date" with respect to the Eleventh
District Cost of Funds Rate shall be the last working day of the month
immediately preceding the applicable Interest Reset Date on which the Federal
Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index (as defined below); and the "Interest Determination Date" with respect
to LIBOR shall be the second London Business Day immediately preceding the
applicable Interest Reset Date, unless the Designated LIBOR Currency is
British pounds sterling, in which case the "Interest Determination Date" will
be the applicable Interest Reset Date. The "Interest Determination Date" with
respect to the Treasury Rate shall be the day in the week in which the
applicable Interest Reset Date falls on which day Treasury Bills (as defined
below) are normally auctioned (Treasury Bills are normally sold at an auction
held on Monday of each week, unless that day is a legal holiday, in which case
the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday); provided, however, that if
an auction is held on the Friday of the week preceding the applicable Interest
Reset Date, the "Interest Determination Date" shall be such preceding Friday;
and provided, further, that if the Interest Rate Determination Date would
otherwise fall on an Interest Reset Date then such Interest Reset Date shall
be postponed to the next succeeding Business Day. If the interest rate of
this Note is determined with reference to two or more Interest Rate Bases
specified on the face hereof, the "Interest Determination Date" pertaining to
this Note shall be the most recent Business Day which is at least two Business
Days prior to the applicable Interest Reset Date on which each Interest Rate
Basis is determinable. Each Interest Rate Basis shall be determined as of such
date, and the applicable interest rate shall take effect on the related
Interest Reset Date.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date") as the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified on the face hereof
as published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication ("H.15(519)") under the heading "CDs (Secondary Market)", or, if
not published by 3:00 P.M., New York City time, on the related Calculation
<PAGE>
Date (as defined below), the rate on such CD Rate Interest Determination Date
for negotiable United States dollar certificates of deposit of the Index
Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for United States
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit". If such rate is not yet
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on the related Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date will be calculated by the Calculation Agent
specified on the face hereof and will be the arithmetic mean of the secondary
market offered rates as of 10:00 A.M., New York City time, on such CD Rate
Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in The City of New York selected
by the Calculation Agent (after consultation with the Company) for negotiable
certificates of deposit of major United States money market banks for
negotiable United States dollar certificates of deposit with a remaining
maturity closest to the Index Maturity in an amount that is representative for
a single transaction in that market at that time; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the CD Rate determined as of such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.", under the column for
the Designated CMT Maturity Index (as defined below) for (i) if the Designated
CMT Telerate Page is 7055, the rate on such CMT Rate Interest Determination
Date and (ii) if the Designated CMT Telerate Page is 7052, the weekly or
monthly average for the week or the month, as applicable, ended immediately
preceding the week or the month, as applicable, in which the related CMT Rate
Interest Determination Date falls. If such rate is no longer displayed on the
relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index (or other United States Treasury rate for
the Designated CMT Maturity Index) for the CMT Rate Interest Determination
Date with respect to such Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the related Calculation Date, then the
CMT Rate on the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market offered rates as of approximately 3:30 P.M., New
York City time, on such CMT Rate
<PAGE>
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent (after
consultation with the Company) and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offered
rates as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent (after
consultation with the Company) and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least U.S.$100 million.
If three or four (and not five) of such Reference Dealers are quoting as
described above, then the CMT Rate will be based on the arithmetic mean of the
offer prices obtained and neither the highest nor the lowest of such quotes
will be eliminated; provided, however, that if fewer than three Reference
Dealers so selected by the Calculation Agent are quoting as mentioned herein,
the CMT Rate determined as of such CMT Rate Interest Determination Date will
be the CMT Rate in effect on such CMT Rate Interest Determination Date. If
two Treasury Notes with an original maturity as described in the second
preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the Calculation Agent will obtain quotations
for the Treasury Note with the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on such service) for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)
for the purpose of displaying Treasury Constant Maturities as reported in
H.15(519). If no such page is specified on the face hereof, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated or, if no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be 2 years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial
Paper Rate shall be determined as of the applicable Interest Determination
Date (a "Commercial Paper Rate Interest Determination Date")
<PAGE>
as the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity as published in H.15(519) under the
heading "Commercial Paper". In the event that such rate is not published by
3:00 P.M., New York City time, on the related Calculation Date, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination
Date will be the Money Market Yield of the rate for commercial paper having
the Index Maturity as published in Composite Quotations under the heading
"Commercial Paper" (with an Index Maturity of one month or three months being
deemed to be equivalent to an Index Maturity of 30 days or 90 days,
respectively). If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent (after consultation
with the Company) for commercial paper having the Index Maturity placed for an
industrial issuer whose bond rating is "Aa", or the equivalent from a
nationally recognized statistical rating organization; provided, however,
that if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
<TABLE>
<CAPTION>
<S> <C> <C>
D x 360
Money Market Yield = _____________X 100
360 - (D x M)
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the applicable Interest Period.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of
Funds Rate, the Eleventh District Cost of Funds Rate shall be determined as of
the applicable Interest Determination Date (an "Eleventh District Cost of
Funds Rate Interest Determination Date") as the rate equal to the monthly
weighted average cost of funds for the calendar month immediately preceding
the month in which such Eleventh District Cost of Funds Rate Interest
Determination Date falls, as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does
not appear on Telerate Page 7058 on such Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate on
such Eleventh District Cost of Funds Rate Interest Determination Date shall be
the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was
<PAGE>
most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date. If the FHLB of San
Francisco fails to announce the Index on or prior to such Eleventh District
Cost of Funds Rate Interest Determination Date, the Eleventh District Cost of
Funds Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a
"Federal Funds Rate Interest Determination Date") as the rate on such date for
United States dollar federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)" or, if not published by 3:00 P.M., New York City
time, on the Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate". If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds
Interest Determination Date shall be calculated by the Calculation Agent and
will be the arithmetic mean of the rates for the last transaction in overnight
United States dollar federal funds arranged by three leading brokers of
federal funds transactions in The City of New York selected by the Calculation
Agent (after consultation with the Company), prior to 9:00 A.M., New York City
time, on such Federal Funds Rate Interest Determination Date; provided,
however, that if the brokers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Federal Funds Rate determined as of
such Federal Funds Rate Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the
face hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of
the applicable Interest Determination Date (a "LIBOR Interest Determination
Date") in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the Designated LIBOR Currency
having the Index Maturity, commencing on the applicable Interest Reset Date,
that appear (or, if only a single rate is required as aforesaid, appears) on
the Designated LIBOR Page (as defined below) as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date, or (b) if "LIBOR Telerate" is
specified on the face hereof, or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified on the face hereof as the method for calculating LIBOR,
the rate for deposits in the Designated LIBOR Currency having the Index
Maturity specified on the face hereof, commencing on such Interest Reset Date,
that appears on the Designated LIBOR Page as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date. If fewer than two such offered rates
so appear, or if no such rate so appears, as applicable, LIBOR on such LIBOR
Interest Determination Date shall be determined in accordance with the
provisions described in clause (ii) below.
<PAGE>
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may be,
on the Designated LIBOR Page as specified in clause (i) above, the Calculation
Agent shall request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the Calculation
Agent (after consultation with the Company), to provide the Calculation Agent
with its offered quotation for deposits in the Designated LIBOR Currency for
the period of the Index Maturity, commencing on the applicable Interest Reset
Date, to prime banks in the London interbank market at approximately 11:00
A.M., London time, on such LIBOR Interest Determination Date and in a
principal amount that is representative for a single transaction in the
Designated LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination
Date will be the arithmetic mean of the rates quoted at approximately 11:00
A.M., in the applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent (after consultation with the Company) for
loans in the Designated LIBOR Currency to leading European banks, having the
Index Maturity and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated or, if no
such currency or composite currency is specified on the face hereof, United
States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other
pages as may replace such page on such service) for the purpose of displaying
the London interbank rates of major banks for the Designated LIBOR Currency,
or (b) if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified on the face hereof as the method
for calculating LIBOR, the display on the Dow Jones Telerate Service (or any
successor service) on the page specified on the face hereof (or any other
pages as may replace such page on such service) for the purpose of displaying
the London interbank rates of major banks for the Designated LIBOR Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on
the face hereto as the Prime Rate, the Prime Rate shall be determined as of
the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan". If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 (as defined
below) as such bank's prime rate or base lending rate as
<PAGE>
in effect for such Prime Rate Interest Determination Date. If fewer than four
such rates appear on the Reuters Screen USPRIME1 Page (as hereinafter defined)
as such bank's prime rate or base lending rate as in effect for such Prime
Rate Interest Determination Date. If fewer than four such rates appear on the
Reuters Screen USPRIME1 Page for such Prime Rate Interest Determination Date,
then the Prime Rate shall be the arithmetic mean of the prime rates or base
lending rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of
New York selected by the Calculation Agent (after consultation with the
Company). If fewer than four such quotations are so provided, the Prime Rate
shall be the arithmetic mean of four prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Prime Rate Interest Determination Date as furnished in The
City of New York by the major money center banks, if any, that have provided
such quotations and by a reasonable number of substitute banks or trust
companies as are necessary to obtain such four prime rate quotations, provided
such substitute banks or trust companies to obtain four such prime rate
quotations are organized and doing business under the laws of the United
States, or any State thereof, each having total equity capital of at least
U.S.$500 million and being subject to supervision or examination by Federal or
State authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies so selected
by the Calculation Agent are not quoting as mentioned in this sentence, the
Prime Rate determined as of such Prime Rate Interest Determination Date will
be the Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1" means the display on the Reuter Monitor Money
Rates Service (or any successor service) on the "USPRIME1" page (or such other
page as may replace the USPRIME1 page on such service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as such rate is published in H.15(519) under the heading
"Treasury Bills-auction average (investment)" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the auction average
rate of such Treasury Bills (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the Auction of Treasury Bills having the Index
Maturity are not reported as provided by 3:00 P.M., New York City time, on the
related Calculation Date, or if no such Auction is held, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three leading
primary
<PAGE>
United States government securities dealers selected by the Calculation Agent
(after consultation with the Company), for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate determined as of such Treasury
Rate Interest Determination Date will be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The interest rate on
this Note will in no event be higher than the maximum rate permitted by New
York law, as the same may be modified by United States law of general
application.
The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. The
"Calculation Date", if applicable, pertaining to any Interest Determination
Date shall be the earlier of (i) the tenth calendar day after such Interest
Determination Date or, if such day is not a Business Day, the next succeeding
Business Day or (ii) the Business Day immediately preceding the applicable
Interest Payment Date or the Maturity Date, as the case may be.
At the request of the Holder hereof, the Calculation Agent will provide
to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for each such date
shall be computed by dividing the interest rate applicable to such day by 360
if the CD Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds
Rate, the Federal Funds Rate, LIBOR or the Prime Rate is the applicable
Interest Rate Basis or by the actual number of days in the year if the CMT
Rate or the Treasury Rate is the applicable Interest Rate Basis. Unless
otherwise specified as the Day Count Convention on the face hereof, the
interest factor for this Note, if the interest rate is calculated with
reference to two or more Interest Rate Bases, shall be calculated in each
period in the same manner as if only the Applicable Interest Rate Basis
specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in
or resulting from such calculation on this Note shall be rounded, in the case
of United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
<PAGE>
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and U S WEST and the rights of the holders of the Debt Securities at
any time by the Company, U S WEST and the Trustee with the consent of the
holders of not less than a majority of the aggregate principal amount of all
Debt Securities at the time outstanding and affected thereby. The Indenture
also contains provisions permitting the holders of not less than a majority of
the aggregate principal amount of the outstanding Debt Securities of any
series, on behalf of the holders of all such Debt Securities, to waive
compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Debt Securities
of any series, in certain instances, to waive, on behalf of all of the holders
of Debt Securities of such series, certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the holder of this Note
shall be conclusive and binding upon such holder and upon all future holders
of this Note and other Notes issued upon the registration of transfer hereof
or in exchange herefore or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company or U S WEST,
which is absolute and unconditional, to pay principal, premium, if any, and
interest, if any, in respect of this Note or the Guarantee, respectively, at
the times, places and rate of formula, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the
principal hereof, premium, if any, or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
<PAGE>
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Issuing and Paying Agent and any agent of the Company or the
Issuing and Paying Agent may treat the holder in whose name this Note is
registered as the owner thereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Issuing and Paying Agent nor any such
agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State.
<PAGE>
_____________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian ________
TEN ENT - as tenants by the entireties (Cust)
(Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act__________________________________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
_____________________________|______________________________________________
____________________________________________________________________________
Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________________________
the within Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer said Note on the books of the Trustee, with full power of
substitution in the premises.
<TABLE>
<CAPTION>
<S> <C>
Dated:_____________________ _______________________________________________
_______________________________________________
Notice: The signature(s) on this assignment must
correspond with the name(s) as written upon the face of
the within Note in every particular, without alteration or
enlargement or any change whatsoever.
</TABLE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms
at a price equal to 100% of the principal amount to be repaid, together with
unpaid interest accrued hereon to the relevant Optional Repayment Date, to the
undersigned, at ______________
____________________________________________________________________________
___________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Issuing and Paying Agent must receive at
its corporate trust office, not more than 60 nor less than 20 calendar days
prior to the Optional Repayment Date, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if
the Specified Currency specified on the face hereof is other than United
States dollars, the minimum Authorized Denomination specified on the face
hereof)) which the holder elects to have repaid and specify the denomination
or denominations (which shall be an Authorized Denomination) of the Notes to
be issued to the holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the
portion not being repaid).
<TABLE>
<CAPTION>
<S> <C>
Principal Amount
to be Repaid: $______________________________ _____________________________________________
Notice: The signature(s) on this
Date:_______________________________________ Option to Elect Repayment must
correspond with the name(s) as
written upon the face of the
within Note in every particular,
without alteration or enlargement
or any change whatsoever.
</TABLE>
