EXHIBIT 1(a)
U S WEST COMMUNICATIONS, INC.
Debt Securities
UNDERWRITING AGREEMENT
November 12, 1998
To the Underwriters Named in Schedule II hereto
c/o the Representatives Named in Schedule I hereto
of the Underwriters Named in Schedule II hereto
Dear Sirs:
1. Introductory. U S WEST Communications, Inc., a Colorado corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statement referred to in
Section 2(a) (the "Debt Securities"). The Debt Securities will be issued under
an Indenture dated as of April 15, 1990, as supplemented as of April 16, 1991,
and amended by the Trust Indenture Reform Act of 1990 (as supplemented and
amended, the "Indenture"), between the Company and The First National Bank of
Chicago, as trustee (the "Trustee"), in one or more series which series may vary
as to interest rates, maturities, redemption provisions and selling prices and
any other variable terms permitted by the Indenture, with all such terms for any
particular series being determined at the time of sale. The Company proposes to
sell to the Underwriters (as hereinafter defined) one or more series of Debt
Securities, each of the designation, with the terms and in the aggregate
principal amount specified in Schedule I hereto (the "Securities"). Subject to
the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and on the other terms set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite its
name in Schedule II hereto (plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 12 hereof).
If there shall be two or more persons, firms or corporations named as
underwriters in Schedule II hereto, the term "Underwriters" as used herein shall
be deemed to mean the several persons, firms or corporations so named (including
the Representatives hereinafter mentioned, if so named, and any Underwriters
substituted pursuant to Section 12), and the term "Representatives" as so used
herein shall be deemed to mean the representative or representatives named in
Schedule I hereto. If there shall only be one person, firm or corporation named
in Schedule II hereto, the term "Underwriters" and the term "Representatives" as
used herein shall mean such person, firm or corporation.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that as of
the date hereof and as of the applicable Delivery Date (as defined below) (each
referred to as a "Representation Date"):
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 33-49647) relating to the Debt
Securities and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "1933 Act"), and has filed
such amendments thereto as may have been required to the date hereof. Such
registration statement (as so amended) has been declared effective by the
Commission. Such registration statement, as amended to the date hereof,
including the exhibits thereto, schedules thereto, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, is hereinafter referred to as the "Registration Statement", and the
prospectus constituting a part of such Registration Statement, as amended and as
supplemented as contemplated by Section 4 to reflect the terms of the Securities
and the terms of the offering thereof, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is
hereinafter referred to as the "Prospectus". A "preliminary prospectus" shall be
deemed to refer to any prospectus or prospectus supplement that omitted
information to be included upon pricing in a form of prospectus or prospectus
supplement filed with the Commission pursuant to Rule 424(b) under the 1933 Act,
that was used after the Registration Statement became effective and prior to the
date of this Agreement. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus or the Prospectus or any
amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
(b) At the respective times the Registration Statement and any
post-effective amendments thereto became effective and, if an annual report on
Form 10-K has been filed by the Company with the Commission subsequent to
effectiveness of the Registration Statement or any such post-effective
amendment, then at the time of the most recent such filing, the Registration
Statement and any post-effective amendments thereto conformed in all material
respects to the requirements of the 1933 Act, the Trust Indenture Act of 1939,
as amended (the "1939 Act"), and the rules and regulations of the Commission
(the "Rules and Regulations") and did not contain 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 not misleading, and on each
Representation Date, the Registration Statement, any post-effective amendment
thereto and the Prospectus conforms or will conform in all material respects to
the requirements of the 1933 Act, the 1939 Act and the Rules and Regulations and
(i) the Registration Statement, as amended as of any such time, does not or will
not include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (ii) the Prospectus, as supplemented as of any such time,
does not or will not include any untrue statement of a material fact or omit to
state any material fact necessary in order 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 any
Underwriter, or on behalf of any Underwriter by the Representatives,
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.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of an amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the Rules and Regulations and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection with the
offering of the Securities was, at the time of such delivery, identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1933 Act and the 1934 Act and the Rules and Regulations, as applicable, and,
when read together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was issued
and at each Representation Date, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(d) The financial statements of the Company included in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, shareowners' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change in the financial condition or
results of operations of the Company and its subsidiaries, taken as a whole, (a
"Material Adverse Effect") and (B) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery by the
Trustee) constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law); and the Indenture has been duly qualified under the 1939 Act.
(h) The Securities have been duly authorized and, at the Delivery Date,
will have been duly executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered against
payment of the purchase price therefor as provided in this Agreement, will
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and will
be in the form contemplated by, and entitled to the benefits of, the Indenture.
(i) The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the Registration
Statement.
(j) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein (including, without
limitation, the issuance and sale of the Securities) and compliance by the
Company with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments") (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any of its subsidiaries
or, to the best knowledge of the Company, any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of indebtedness
of the Company or any of its subsidiaries (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any such subsidiary.
(k) Except as disclosed in the Registration Statement, there is not
pending or, to the knowledge of the Company, threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of its
subsidiaries is a party or to which the assets, properties or operations of the
Company or any of its subsidiaries is subject, before or by any court or
governmental agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect or which might reasonably be
expected to materially and adversely affect the assets, properties or operations
of the Company and its subsidiaries, taken as a whole, or the consummation of
the transactions contemplated by this Agreement or the Indenture or the
performance by the Company of its obligations hereunder or thereunder.
(l) The Company and its subsidiaries possesses such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
3. Purchase and Offering. Delivery of and payment for the Securities
shall be made at such address, date and time as may be specified in Schedule I
hereto. Such date and time are sometimes referred to herein as the "Delivery
Date". On the Delivery Date, the Company shall deliver the Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of immediately
available funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Securities shall be
in registered form and in such authorized denominations and registered in such
names as the Representatives shall request in writing not less than one full
business day prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the Securities, the Company shall make the Securities
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
Schedule I may set forth additional conditions concerning the purchase
or offering of the Securities, if any.
4. Covenants of the Company. The Company covenants and agrees with the
several Underwriters that it will furnish such firm which shall be acting as
counsel for the Underwriters ("Underwriters' Counsel"), one signed copy of the
Registration Statement, including all exhibits, relating to the Debt Securities
in the form in which it became effective and of all amendments thereto and will
furnish to the Representatives copies of the Registration Statement, including
all exhibits and amendments thereto, and that, in connection with each offering
of Securities:
(a) The Company will promptly prepare a supplement to the Prospectus to
reflect the terms of the Securities and the terms of the offering thereof and
will advise the Representatives promptly of any other amendment or
supplementation of the Registration Statement or the Prospectus and will not
effect any amendment or supplementation without the consent of the
Representatives, which consent shall not be unreasonably withheld; the Company
will also advise the Representatives of any request made by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information with respect thereto and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement, and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if issued.
During the period when the Prospectus is required to be delivered under the 1933
Act, the Company will not file any document pursuant to the 1934 Act which is
deemed to be incorporated by reference in the Prospectus unless Underwriters'
Counsel shall have been previously advised thereof.
(b) If, at any time when a prospectus relating to the Securities 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 or the Rules and Regulations, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
(c) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, earnings 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 the Company next following the effective date of the
Registration Statement (as defined in Rule 158) with respect to each sale of
Securities.
(d) The Company will furnish to the Representatives copies of each
preliminary prospectus, the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as are
reasonably requested.
(e) The Company will use its best efforts to arrange for the
qualification of the Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in effect so
long as required for the distribution.
(f) During the period of five years after the effective date of the
Registration Statement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, as soon as practicable after
the end of each fiscal year, a copy of its annual report to shareholders for
such year, and the Company will furnish to the Representatives and to
Underwriters' Counsel, (i) as soon as available, a copy of each report of the
Company filed with the Commission under the 1934 Act or mailed to stockholders,
and (ii) from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) expenses and fees incurred
in connection with the preparation and filing of the Registration Statement
(including the financial statements and exhibits) as originally filed and of
each amendment thereto, (ii) the fees and disbursements of the Company's
counsel, accountants and other advisors and agents, as well as the fees and
disbursements of the Trustee and its counsel, (iii) any expenses (including fees
and disbursements of counsel) incurred in connection with qualifications of the
Securities for sale and determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and the printing
of memoranda relating thereto, (iv) any fees charged by investment rating
agencies for the rating of the Securities, (v) all expenses incurred in printing
and delivering to the Underwriters copies of the Registration Statement and any
amendments thereto, and of each preliminary prospectus, the Prospectus and any
amendments or supplements thereto, and (vi) the fees and expenses, if any,
incurred in connection with the listing of the Securities on the New York Stock
Exchange or any other national securities exchange.
(h) Unless otherwise specified in Schedule I hereto, between the
commencement of an offering of Securities and the related Delivery Date, the
Company will not, without the prior consent of the Representatives, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any of its senior debt securities having a maturity of more than one
year.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein, to the accuracy of the statements of the officers of
the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On the date of this Agreement and on the Delivery Date, the
Representatives shall have received executed copies of letters of
PricewaterhouseCoopers LLP, and Arthur Andersen LLP, addressed to the Company
and the Representatives, substantially in the forms previously approved by the
Representatives.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
(c) The Representatives shall have received an opinion or opinions,
dated the Delivery Date, of Cadwalader, Wickersham & Taft, counsel for the
Company, to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Colorado
and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being
conducted.
(ii) The execution, delivery and performance of the Indenture by
the Company have been duly authorized by all necessary corporate
action on the part of the Company. The Indenture has been duly and
validly executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Trustee),
constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). The
Indenture has been duly qualified under the 1939 Act.
(iii) The Securities, when duly executed and authenticated in
the manner contemplated in the Indenture and issued and delivered to
the Underwriters against payment therefor in accordance with the
provisions hereof, will constitute legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's rights
and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(iv) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all necessary corporate
action on the part of the Company; and this Agreement has been duly and
validly executed and delivered by the Company.
(v) No consent, approval, authorization or other action by, or
filing or registration with, any federal governmental authority is
required in connection with the execution and delivery by the Company
of the Indenture or the issuance and sale of the Securities to the
Underwriters pursuant to the terms of this Agreement, except such as
have been obtained or made under the 1933 Act and the rules and
regulations thereunder and such as may be required under the 1934 Act
and the rules and regulations thereunder.
(vi) The Registration Statement was declared effective under
the 1933 Act and, to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceeding for that purpose has been initiated or
threatened by the Commission.
(vii) The statements in the Prospectus under the headings
"Description of Debt Securities" and "Description of Notes", insofar as
such statements constitute a summary of certain provisions of the
documents referred to therein, are accurate in all material respects.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and of public officials. Such counsel may also rely as to matters
of Colorado law upon the opinion referred to in Section 5(e) without independent
verification.
In addition, such counsel shall state that it has participated in
conferences with representatives of the Company and with the Representatives and
their counsel, at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed; such counsel has not
independently verified and are not passing upon and assume no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and the limitations inherent in the
examination made by such counsel and the nature and extent of such counsel's
participation in such conferences are such that such counsel is unable to
assume, and does not assume, any responsibility for the accuracy, completeness
or fairness of such statements; however, based upon such counsel's participation
in the aforesaid conferences, no facts have come to its attention which lead it
to believe that the Registration Statement, at the time it became effective or
at the date of this Agreement, and the Prospectus and any further amendments and
supplements thereto made by the Company prior to such Delivery Date (other than
the financial statements and related notes and other financial, statistical and
accounting data contained therein or Exhibit 25 to the Registration Statement as
to which such counsel need express no belief) did not comply as to form in all
material respects with the applicable requirements of the 1933 Act, the 1934 Act
and the rules and regulations thereunder or that the Registration Statement
(except as to the financial statements and the notes thereto, and the other
financial, statistical and accounting data included therein, as to which such
counsel need express no belief), and each amendment thereto, as of its effective
date (or, if an annual report on Form 10-K has been filed by the Company with
the Commission subsequent to the effectiveness of the Registration Statement,
then at the time of the most recent such filing) or at the date of this
Agreement, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its issue date or at the
Delivery Date, the Prospectus (except as to the financial statements and the
notes thereto, and the other financial, statistical and accounting data included
therein, as to which such counsel need express no belief), and each amendment or
supplement thereto contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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").
(d) The Representatives shall have received from Underwriters' Counsel
an opinion, dated the Delivery Date, to the effect specified in clauses (i),
(ii), (iii), (iv), (vi) and (vii) and the penultimate paragraph of subsection
(c) above, subject to the final paragraph of subsection (c) above, and with
respect to such other matters as the Representatives may reasonably request. In
rendering such opinion, such counsel may rely as to matters of Colorado law upon
the opinion referred to in Section 5(e) without independent verification.
(e) The Representatives shall have received an opinion or opinions,
dated the Delivery Date, of the Corporate Counsel of the Company, to the effect
that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Colorado
and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being
conducted.
(ii) The execution, delivery and performance of the Indenture
by the Company have been duly authorized by all necessary corporate
action on the part of the Company. The Indenture has been duly and
validly executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Trustee),
constitutes the legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's rights
and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). The
Indenture has been duly qualified under the 1939 Act.
(iii) The Securities, when duly executed and authenticated in
the manner contemplated in the Indenture and issued and delivered to
the Underwriters against payment therefor in accordance with the
provisions hereof, will constitute legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's rights
and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(iv) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all necessary corporate
action on the part of the Company; and this Agreement has been duly and
validly executed and delivered by the Company.
(v) All state regulatory consents, approvals, authorizations
or other orders (except as to the state securities or Blue Sky laws, as
to which such counsel need express no opinion) legally required for the
execution of the Indenture and the issuance and sale of the Securities
to the Underwriters pursuant to the terms of this Agreement have been
obtained; provided that such counsel may rely on opinions of local
counsel satisfactory to said counsel.
(vi) The enforceability and the legal, valid and binding
nature of the respective agreements and obligations of the Company set
forth in the Indenture and the Securities (the "Agreements") are not
affected by, and the performance of the obligations set forth in such
Agreements, the issuance and sale of the Securities and the
consummation of the transactions contemplated by 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.
(vii) To the best of such counsel's knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any of its subsidiaries is a
party or to which the assets, properties or operations of the Company
or any of its subsidiaries is subject, before or by any court or
governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which
might reasonably be expected to materially and adversely affect the
assets, properties or operations thereof or the consummation of the
transactions contemplated by this Agreement or the Indenture or the
performance by the Company of its obligations hereunder or thereunder.
In rendering such opinion, such counsel may rely as to matters of New
York law upon the opinion referred to in Section 5(c) without independent
verification.
(f) The Representatives shall have received a certificate, dated the
Delivery Date, of the President, any Vice President, the Treasurer or any
Assistant Treasurer of the Company in which such officers shall state that, to
the best of their knowledge after reasonable investigation, the representations
and warranties of the Company in this Agreement are true and correct as if made
at and as of the Delivery 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 the Delivery 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 Commission and that,
subsequent to the date of the Prospectus, there has been no material adverse
change in the financial condition or results of operations of the Company and
its subsidiaries, taken as a whole, except as set forth in or contemplated by
the Prospectus.
(g) If the Prospectus contains a discussion of United States federal
income tax considerations with respect to the Securities, the Company shall have
furnished to the Representatives a letter of its United States tax counsel,
dated the Delivery Date, to the effect that (i) the Underwriters may rely on the
opinion of such counsel, filed as an exhibit to the Registration Statement to
the same extent as though it were dated the date of such letter authorizing
reliance, and (ii) such counsel has reviewed the statements in the Prospectus
under the caption "Certain United States Federal Income Tax Considerations" and,
insofar as they are, or refer to, statements of United States law or legal
conclusions, such statements are accurate in all material respects
The Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
In case any of the conditions specified above in this Section 5 shall
not have been fulfilled, this Agreement may be terminated by the Representatives
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in Sections 4(g), 7 and 8 hereof.
6. Condition of the Obligations of the Company. The obligation of the
Company to sell and deliver the Securities are subject to the following
conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement or the Indenture shall have been issued and no proceedings for those
purposes shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(b) Concurrently with or prior to the delivery of the Securities to
each Underwriter, the Company shall receive the full purchase price specified in
Schedule I hereto to be paid for the Securities.
(c) The written information furnished to the Company by any
Underwriter, or on behalf of any Underwriter by the Representatives,
specifically for use in the Prospectus as contemplated by Section 2 and Section
7(b) shall be true and accurate in all material respects.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representatives. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Sections 4(g), 7 and 8 hereof.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject, as
incurred, 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, 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
the light of the circumstances under which they were made, not misleading, and
will reimburse each Underwriter, as incurred, for any legal or other expenses
reasonably incurred by such Underwriter 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; provided,
however, that the Company 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 by any Underwriter, or on behalf of any
Underwriter by the Representatives, specifically for use therein or in reliance
upon and in conformity with the Statement of Eligibility of the Trustee under
the Indenture; and provided, further, that with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this paragraph (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that a copy of the Prospectus (excluding material
incorporated therein by reference) was not delivered to such person, if such
delivery was required by the 1933 Act, and such Prospectus corrected any such
untrue statement or omission or alleged untrue statement or omission.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, as incurred, 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, 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, in the light of the circumstances under which they were made, 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 by such Underwriter, or on behalf of such Underwriter by the
Representatives, specifically for use therein, and will reimburse the Company,
as incurred, for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by an indemnified party under this Section
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 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 7 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, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters 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 on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. 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 or the Underwriters 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), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has 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. The Underwriters' obligations
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act or the 1934 Act; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the 1933 Act or
the 1934 Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or of any of their officers or directors or any
controlling person, and will survive delivery of and payment for the Securities.
If the purchase of the Securities by the Underwriters is not consummated for any
reason other than a default by one or more of the Underwriters, the Company
shall remain responsible for the expenses to be paid or reimbursed by them
pursuant to Section 4(g), the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect, and the Company will
reimburse the Representatives for the reasonable out-of-pocket expenses of the
Underwriters, not exceeding $75,000, and for the fees and disbursements of
Underwriters' Counsel, the Underwriters agreeing to pay such expenses, fees and
disbursements in any other event. In no event will the Company be liable to any
of the Underwriters for damages on account of loss of anticipated profits.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters will be mailed, delivered or telecopied and confirmed
to the Representatives at their addresses specified in Schedule I hereto for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to it at 1801 California Street, Denver,
Colorado 80202, Attention: Treasurer.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
11. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
12. Default by Underwriters. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Securities set forth in Schedule II
hereto to be purchased by each remaining non-defaulting Underwriter set forth
therein bears to the aggregate principal amount of Securities set forth therein
to be purchased by all the remaining non-defaulting Underwriters; provided that
the remaining non-defaulting Underwriters shall not be obligated to purchase any
amount of Securities if the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
one-tenth of the total principal amount of Securities, and any remaining
non-defaulting Underwriter shall not be obligated to purchase additional
Securities in an amount of more than one-ninth of the principal amount of
Securities set forth in Schedule II hereto to be purchased by it. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Securities. If the remaining Underwriters
or other underwriters satisfactory to the Representatives do not elect to
purchase the Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses as set forth in Sections
4(g) and 8 hereof.
Nothing contained in this Section 12 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or Underwriters' Counsel may be necessary in the Registration
Statement, any prospectus or in any other document or arrangement.
13. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) there
has been, since the respective dates as of which information is given in the
Registration Statement, any change in the financial condition of the Company and
its subsidiaries, taken as a whole, or in the earnings, affairs or business
prospects of the Company and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, the effect of which is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable to market the Securities or enforce contracts for the sale
thereof, (ii) trading in the Company's securities shall have been suspended by
the Commission 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, (iii) a banking moratorium
shall have been declared either by federal or New York State authorities, (iv)
there shall have occurred any material adverse change in the financial markets
of the United States or any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or enforce contracts for the sale
thereof, or (v) any rating of any debt securities of the Company shall have been
lowered by Moody's Investors Services, Inc. ("Moody's") or Standard & Poor's
Ratings Services ("S&P") or either Moody's or S&P shall have publicly announced
that it has any such debt securities under consideration for possible downgrade.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company and the Underwriters in
accordance with its terms.
Very truly yours,
U S WEST COMMUNICATIONS INC.
By: /S/ JANET K. COOPER
Name: Janet K. Cooper
Title: Vice President & Treasurer
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
J.P. MORGAN SECURITIES INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
By: J.P. MORGAN SECURITIES INC.
By: /S/ JOHN SIMMONS
Authorized Signatory
John Simmons
Vice President
SCHEDULE I
Underwriting Agreement dated November 12, 1998
Registration Statement No. 33-49647
Representatives and Addresses:
J.P. Morgan Securities Inc.: 60 Wall Street
13th Floor
New York, New York 10260
Attention: Lisa L. McHugh
Lehman Brothers Inc.: 3 World Financial Center
New York, New York 10285
Merrill Lynch, Pierce, Fenner & Smith
Incorporated: World Financial Center
North Tower - 29th Floor
250 Vesey Street
New York, New York 10281
Salomon Smith Barney Inc.: 7 World Trade Center
New York, New York 10048
Securities:
Designation: 5-5/8% Notes due 2008
Principal Amount: $320,000,000
Indenture dated as of April 15, 1990, as supplemented as of April 16,
1991, and amended by the Trust Indenture Reform Act of 1990, between
U S WEST Communications, Inc. and The First National Bank of Chicago,
as Trustee.
Date of Maturity: November 15, 2008
Interest Rate: 5-5/8% per annum, payable semiannually in arrears on May
15 and November 15 of each year, commencing May 15, 1999.
Price to Public: 99.646% of the principal amount thereof ($318,867,200), plus
accrued interest, if any, from November 17, 1998.
Purchase Price: 98.996% of the principal amount thereof ($316,787,200).
Redemption Provisions: Redeemable at the option of U S WEST Communications, Inc.,
in whole at any time or in part from time to time, upon at
least 30 days but not more than 90 days prior written notice
given as provided in the Indenture, at a redemption price
equal to the greater of (i) 100% of the principal amount of
the Notes to be redeemed and (ii) the sum, as determined by
the Quotation Agent (as defined in the Prospectus
Supplement), of the present values of the principal amount
of the Notes to be redeemed and the remaining scheduled
payments of interest thereon from the redemption date to
November 15, 2008 discounted from their respective scheduled
payment dates to the redemption date on a semiannual basis
(assuming a 360-day year consisting of 30-day months) at the
Treasury Rate (as defined in the Prospectus Supplement) plus
20 basis points, plus, in either case, accrued interest
thereon to the date of redemption.
Holders' Optional
Repayment Provisions: Not repayable at the option of the holders.
Form and Authorized
Denominations: Global certificates evidencing the Securities
registered in the name of Cede & Co., as nominee
for The Depository Trust Company--$1,000 and
multiples thereof.
Stock Exchange Listing: New York Stock Exchange.
Delivery Date, Time
and Location:
November 17, 1998 at 9:00
A.M., New York time, at the
office of Brown & Wood LLP,
New York, New York.
Other Terms and
Conditions: During a period of 30 days from the date of the Prospectus
Supplement, the Company will not, without the prior written
consent of J.P. Morgan Securities Inc., directly or
indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any senior debt securities
with maturities of more than one year.
SCHEDULE II
Principal
Amount
of
Name of Underwriter Notes
J.P. Morgan Securities Inc...................................... $160,000,000
Lehman Brothers Inc............................................. 48,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................................. 48,000,000
Salomon Smith Barney Inc........................................ 48,000,000
ABN AMRO Incorporated........................................... 3,200,000
BNY Capital Markets, Inc........................................ 3,200,000
CIBC Oppenheimer Corp........................................... 3,200,000
Norwest Investment Services, Inc................................ 3,200,000
Piper Jaffray Inc............................................... 3,200,000
-------------
Total........................................................... $320,000,000
=============