(..continued)
THIRD SUPPLEMENTAL INDENTURE, dated as of October 24, 1996 (the "Third
Supplemental Indenture"), among U S WEST Capital Funding, Inc., a Colorado
corporation (the "Company"), U S WEST, Inc., a Delaware corporation (the
"Guarantor") and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee") under the Indenture dated as of September 6, 1995 among the
Company, the Guarantor and the Trustee as supplemented by a Second
Supplemental Indenture dated as of October 31, 1995 among the Company, the
Guarantor and the Trustee (as so supplemented, the "Indenture").
WHEREAS, the Company and the Guarantor executed and delivered the
Indenture to the Trustee to provide for the future issuance of the Company's
unsecured subordinated debt securities guaranteed by the Guarantor, to be
issued from time to time in one or more series as might be determined by the
Company under the Indenture, in an unlimited aggregate principal amount which
may be authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debt Securities to be
known as its 8 % Subordinated Deferrable Interest Notes due 2036, and the
Guarantor desires to provide for the issuance of a Guarantee of such Debt
Securities (the "Note Guarantee" and, together with the Debt Securities, the
"Notes"), the form and substance of such Notes and the Note Guarantee and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this Third Supplemental Indenture;
WHEREAS, U S WEST Financing II, a Delaware statutory business trust (the
"Trust"), has offered to the public $480,000,000 aggregate liquidation amount
of its 8 % Trust Originated Preferred Securities (the "Preferred Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Guarantor of $14,845,375
aggregate liquidation amount of its Common Securities, in $494,845,375
aggregate principal amount of the Notes; and
WHEREAS, the Company and the Guarantor have requested that the Trustee
execute and deliver this Third Supplemental Indenture, and all requirements
necessary to make this Third Supplemental Indenture a valid instrument, in
accordance with its terms, and to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee, the valid obligations of the
Company and to make the Guarantee endorsed thereon when executed by the
Guarantor a valid obligation of the Guarantor, have been performed, and the
execution and delivery of this Third Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Company and the Guarantor covenant and
agree with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this Third Supplemental Indenture;
(b) a term defined anywhere in this Third Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this Third Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Clearing Agency (ii) Delaware Trustee; (iii) Property
Trustee; (iv) Preferred Security Certificate; (v) Regular Trustees; and (vi)
Special Event; and
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Communications Stock" means the U S WEST Communications Group
Common Stock, par value $.01 per share, of the Guarantor.
"Declaration" means the Amended and Restated Declaration of Trust of
U S WEST Financing II, a Delaware business trust, dated as of October [ ],
1996.
"Dissolution Event" means that as a result of an election by the
Guarantor, the Trust is to be dissolved in accordance with the Declaration and
the Notes held by the Property Trustee are to be distributed to the holders of
the Trust Securities issued by the Trust pro rata in accordance with the
Declaration.
"Maturity Date" means the date on which the Notes mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Additional Interest, if any.
"Media Stock" means the U S WEST Media Group Common Stock, par value
$.01 per share, of the Guarantor.
"Senior Indebtedness" means with respect to the Company or
Guarantor, (i) the principal, premium, if any, and interest in respect of (A)
indebtedness of such obligor for money borrowed and (B) indebtedness evidenced
by securities, debentures, bonds or other similar instruments issued by such
obligor including, without limitation, in the case of the Guarantor, all
obligations under its Liquid Yield Option Notes due 2011; (ii) all capital
lease obligations of such obligor; (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such obligor for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) of other persons for the payment of
which such obligor is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) of other persons secured by any lien on any property or asset of
such obligor (whether or not such obligation is assumed by such obligor),
except for (1) any such indebtedness that is by its terms subordinated to or
pari passu with the Notes, as the case may be, and (2) any indebtedness
including all other debt securities and guarantees in respect of those debt
securities, initially issued to (y) any other U S WEST Trust or (z) any
trusts, partnerships or any other entities affiliated with the Guarantor which
is a financing vehicle of the Guarantor ("Financing Entity") in connection
with an issuance by such Financing Entity of preferred securities or other
securities which are similar to the Preferred Securities, including, without
limitation, the 7.96% Subordinated Deferrable Interest Notes due 2025 issued
by the Company to U S West Financing I (the "7.96% Notes") and the guarantee
by the Guarantor of the 7.96% Notes (the "7.96% Notes Guarantee").
ARTICLE II
GENERAL TERMS AND CONDITIONS OF
THE NOTES
SECTION 2.1 Designation and Principal Amount
There is hereby authorized:
(a) a series of Debt Securities designated the "8 % Subordinated
Deferrable Interest Notes due 2036", limited in aggregate principal amount to
$494,845,375, which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Notes pursuant to Section 2.4
of the Indenture; and
(b) a Guarantee of such Debt Securities.
SECTION 2.2 Maturity
The Maturity Date will be October 29, 2036.
SECTION 2.3 Form and Payment
Except as provided in Section 2.4, the Notes shall be issued in
fully registered certificated form without interest coupons. Principal and
interest on the Notes issued in certificated form will be payable, the
transfer of such Notes will be registrable and such Notes will be
exchangeable for Notes bearing identical terms and provisions at the office or
agency of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Security Register. Notwithstanding the
foregoing, so long as the registered holder of any Notes is the Property
Trustee, the payment of the principal of and interest (including Additional
Interest, if any) on such Notes held by the Property Trustee will be made at
such place and to such account as may be designated by the Property Trustee.
SECTION 2.4 Global Note
In connection with a Dissolution Event;
(a) the Notes in certificated form may be presented to the Trustee by
the Property Trustee in exchange for a Global Note in an aggregate principal
amount equal to all Outstanding Notes, to be registered in the name of the
Depository, or its nominee, and delivered by the Trustee to the Depository for
crediting to the accounts of its participants pursuant to the instructions of
the Regular Trustees. The Company upon any such presentation shall execute a
Global Note in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this Third Supplemental Indenture. Payments on the Notes issued as a Global
Note will be made to the Depository; and
(b) if any Preferred Securities are held in non book-entry certificated
form, the Notes in certificated form may be presented to the Trustee by the
Property Trustee and any Preferred Security Certificate which represents
Preferred Securities other than Preferred Securities held by the Clearing
Agency or its nominee ("Non Book-Entry Preferred Securities") will be deemed
to represent beneficial interests in Notes presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities until such
Preferred Security Certificates are presented to the Security Registrar for
transfer or reissuance at which time such Preferred Security Certificates will
be cancelled and a Note registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred Security
Certificate cancelled will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with the Indenture and
this Third Supplemental Indenture. On issue of such Notes, Notes with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
SECTION 2.5 Interest
(a) Each Note will bear interest at the rate of 8 % per annum (the
"Coupon Rate") from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, payable (subject to the provisions
of Article Four) quarterly in arrears on March 31, June 30, September 30
and December 31 of each year (each, an "Interest Payment Date"), commencing on
December 31, 1996, to the person in whose name such Note or any predecessor
Note is registered, at the close of business on the regular record date for
such interest installment, which, in respect of any Notes of which the
Property Trustee is the registered holder of or a Global Note, shall be the
close of business on the Business Day next preceding that Interest Payment
Date. Notwithstanding the foregoing sentence, if (i) the Preferred Securities
are no longer in book-entry only form or (ii) a Dissolution Event has occurred
and subsequent thereto the Notes are not represented by a Global Note pursuant
to the provisions of Section 2.11(c) of the Indenture, the Company may select
a regular record date for such interest installment which shall be any date at
least one Business Day before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest in computed, will be computed
on the basis of the actual number of days elapsed per 30-day month. In the
event that any date on which interest is payable on the Notes is not a
Business Day, then payment of interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(c) If at any time while the Property Trustee is the holder of any
Notes, the Trust or the Property Trustee is required to pay any taxes, duties
assessments or governmental changes of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then,
in any case, the Company will pay as additional interest ("Additional
Interest") on the Notes held by the Property Trustee, such additional amounts
as shall be required so that the net amounts received and retained by the
Trust and the Property Trustee after paying such taxes, duties assessments or
other governmental changes will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other government changes been imposed.
ARTICLE III
REDEMPTION OF THE NOTES
SECTION 3.1 Special Event Redemption
If a Special Event has occurred and is continuing then,
notwithstanding Section 3.2 but subject to Section 3.3(c), the Company shall
have the right, upon not less than 30 days' nor more than 60 days' notice to
the registered holders of the Notes to redeem the Notes in whole or in part
for cash within 90 days following the occurrence of such Special Event at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption (the
"Redemption Price").
SECTION 3.2 Optional Redemption by Company
Subject to the provisions of Article Three of the Indenture and to
Section 3.3(c), the Company shall have the right to redeem the Notes, in whole
or in part, from time to time, on or after October 29, 2001, at the Redemption
Price. Any redemption pursuant to this paragraph will be made upon not less
than 30 days' nor more than 60 days' notice to the registered holder of the
Notes, at the Redemption Price.
SECTION 3.3 Redemption Procedures
(a) If the Notes are only partially redeemed pursuant to Section 3.1 or
Section 3.2, the Notes will be redeemed pro rata or by any other method
utilized by the Trustee; provided that if at the time of redemption, the
Notes are registered as a Global Note, the Depository shall determine the
principal amount of such Notes held by each Noteholder to be redeemed in
accordance with its procedures.
(b) The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or at such earlier time as the Company
determines and specifies in the notice of redemption, provided the Company
shall deposit with the Trustee an amount sufficient to pay the Redemption
Price by 11:00 a.m. on the date such Redemption Price is to be paid.
(c) If a partial redemption of the Notes would result in the delisting
of the Preferred Securities issued by the Trust from any national securities
exchange or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial redemption
and may only redeem the Notes in whole.
SECTION 3.4 No Sinking Fund
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period
Subject to the provisions of Section 7.2, the Company shall have the
right, at any time during the term of the Notes, from time to time to extend
the interest payment period of such Notes for up to 20 consecutive quarters
(the "Extended Interest Payment Period"). To the extent permitted by
applicable law, interest, the payment of which has been deferred because of
the extension of the interest payment period pursuant to this Section 4.1,
will bear interest thereon at the Coupon Rate for each quarter of the Extended
Interest Payment Period. At the end of the Extended Interest Payment Period
the Company shall pay all interest accrued and unpaid on the Notes including
any Additional Interest ("Deferred Interest") which shall be payable to the
holders of the Notes in whose names the Notes are registered in the Security
Register on the first record date after the end of the Extended Interest
Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that such
period together with all such further extensions thereof shall not exceed 20
consecutive quarters. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Company may
select a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof.
SECTION 4.2 Notice of Extension
(a) If the Property Trustee is the only registered holder of the Notes
at the time the Company selects an Extended Interest Payment Period, the
Company shall give written notice to both the Regular Trustees and the
Property Trustee of its selection of such Extended Interest Payment Period one
Business Day before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities issued by the Trust are payable, or (ii)
the date the Trust is required to give notice of the record date or the date
such Distributions are payable to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one Business Day
before such record date.
(b) If the Property Trustee is not the only holder of the Notes at the
time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Notes written notice of its selection of such
Extended Interest Payment Period 10 Business Days before the earlier of (i)
the next succeeding Interest Payment Date, or (ii) the date the Company is
required to give notice of the record or payment date of such interest payment
to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Notes.
(c) The quarter in which any notice is given pursuant to paragraphs (a)
or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1 Payment of Expenses
In connection with the offering, sale and issuance of the Notes to the
Property Trustee in connection with the sale of the Trust Securities by the
Trust, the Company shall:
(a) pay for all costs and expenses relating to the offering, sale and
issuance of the Note, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 7.06 of the Indenture;
(b) pay for all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and expenses relating to
the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust assets);
and
(c) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2 Guarantee of Payment of Expenses
The Guarantor hereby fully and unconditionally guarantees the due
and punctual payment of all amounts that become due and payable by the Company
to any Person pursuant to Section 5.1.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Agreement to Subordinate
The Company and the Guarantor covenant and agree, and each holder of
Notes issued hereunder by holder's acceptance thereof likewise covenants and
agrees, that all Notes shall be issued subject to the provisions of this
Article Six; and each holder of a Note, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Notes issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred. The payment
by the Guarantor of any obligation due under the Note Guarantee issued
hereunder shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment in full of
all Senior Indebtedness of the Guarantor, whether outstanding at the date of
this Indenture or thereafter incurred.
No provision of this Article Six shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 6.2 Default on Senior Indebtedness
In the event and during the continuation of any default by the
Company or the Guarantor in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness of the Company or the Guarantor,
as the case may be, or in the event that the maturity of any Senior
Indebtedness of the Company or the Guarantor, as the case may be, has been
accelerated because of a default, then, in either case, no payment shall be
made by the Company with respect to the principal (including redemption and
sinking fund payments) of, or premium, if any, or interest on the Notes,
including payment with respect to any obligation due under the Guarantees.
In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any holder when such payment is prohibited by
the preceding paragraph of this Section 6.2, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of Senior Indebtedness or their respective representatives, or to the trustee
or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear,
but only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee within 90
days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of Senior Indebtedness.
SECTION 6.3 Liquidation; Dissolution; Bankruptcy
Upon any payment by the Company or the Guarantor, or distribution of
assets of the Company or the Guarantor of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company or the Guarantor, whether
voluntary or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness of the Company or
the Guarantor, as the case may be, shall first be paid in full, or payment
thereof provided for in money in accordance with its terms, before any payment
is made by the Company or the Guarantor, as the case may be, on account of the
principal (and premium, if any) or interest on the Notes; and upon any such
dissolution or winding-up or liquidation or reorganization any payment by the
Company or the Guarantor, or distribution of assets of the Company or the
Guarantor of any kind or character, whether in cash, property or securities,
to which the holders of the Note or the Trustee would be entitled to receive
from the Company or the Guarantor, as the case may be, except for the
provisions of this Article Six, shall be paid by the Company or the Guarantor,
as the case may be, or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
holders of the Notes or by the Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness of the Company or
the Guarantor, as the case may be (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company or the Guarantor, as the case may be) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear,
to the extent necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the holders of Notes or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company or the Guarantor of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee or the holders of the Notes before
all Senior Indebtedness of the Company or the Guarantor is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, and their respective interests may appear,
as calculated by the Company or the Guarantor, for application to the payment
of all Senior Indebtedness of the Company or the Guarantor, as the case may
be, remaining unpaid to the extent necessary to pay such Senior Indebtedness
in full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article Six, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company or
the Guarantor as reorganized or readjusted, or securities of the Company or
the Guarantor or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least
to the extent provided in this Article Six with respect to the Notes to the
payment of all Senior Indebtedness of the Company or the Guarantor, as the
case may be, that may at the time be outstanding, provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company or
the Guarantor with, or the merger of the Company or the Guarantor into,
another corporation or the liquidation or dissolution of the Company or the
Guarantor following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten of the Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 6.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Ten of the Indenture. Nothing in Section 6.2 or in this
Section 6.3 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.6 of the Indenture.
SECTION 6.4 Subrogation
Subject to the payment in full of all Senior Indebtedness of the
Company or the Guarantor, the rights of the holders of the Notes shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company or
the Guarantor, as the case may be, applicable to such Senior Indebtedness
until the principal of (and premium, if any) and interest on the Notes shall
be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders for such Senior Indebtedness of any cash,
property or securities to which the holders of the Notes or the Trustee would
be entitled except for the provisions of this Article Six, and no payment over
pursuant to the provisions of this Article Six, to or for the benefit of the
holders of such Senior Indebtedness by holders of the Notes or the Trustee,
shall, as between (i) the Company, its creditors other than holders of Senior
Indebtedness of the Company, and the holders of the Notes or (ii) the
Guarantor, its creditors other than the holders of Senior Indebtedness of the
Guarantor, and the holders of the Notes, be deemed to be a payment by the
Company or the Guarantor, as the case may be, to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article Six are
and are intended solely for the purposes of defining the relative rights of
the holders of the Notes, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
Nothing contained in this Article Six or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as between (i) the Company,
its creditors other than the holders of Senior Indebtedness of the Company,
and the holders of the Notes or (ii) the Guarantor, its creditors other than
the holders of Senior Indebtedness of the Guarantor, and the holders of the
Notes, the obligation of the Company or the Guarantor, as the case may be,
which is absolute and unconditional, to pay to the holders of the Notes the
principal of (and premium, if any) and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the Notes
and creditors of the Company or the Guarantor, as the case may be, other than
the holders of Senior Indebtedness of the Company or the Guarantor, as the
case may be, nor shall anything herein or therein prevent the Trustee or the
holder of any Note from exercising all remedies otherwise permitted by
applicable law upon default under the Indenture, subject to the rights, if
any, under this Article Six of the holders of such Senior Indebtedness in
respect of cash, property or securities of the Company or the Guarantor, as
the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company or the
Guarantor referred to in this Article Six, the Trustee, subject to the
provisions of Section 7.1 of the Indenture, and the holders of the Notes,
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the holders of the
Notes, for the purposes of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other indebtedness
of the Company or the Guarantor, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Six.
SECTION 6.5 Trustee to Effectuate Subordination
Each holder of Notes by such holder's acceptance thereof authorizes
and directs the Trustee on such holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Six and appoints the Trustee such holder's attorney-in-fact for any
and all such purposes.
SECTION 6.6 Notice by the Company and the Guarantor.
The Company or the Guarantor shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company or the
Guarantor that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Notes pursuant to the provisions of this Article
Six. Notwithstanding the provisions of this Article Six or any other
provision of the Indenture and this Third Supplemental Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts that would
prohibit the making of any payment of monies to or by the Trustee in respect
of the Notes pursuant to the provisions of this Article Six, unless and until
a Responsible Officer of the Trustee shall have received written notice
thereof at the Principal Office of the Trustee from the Company or the
Guarantor or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 7.1 of the Indenture, shall be entitled
in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section 6.6 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest
on any Note), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.1 of the
Indenture, shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness of the
Company or the Guarantor, as the case may be (or a trustee on behalf of such
holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Six, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article Six, and if such evidence is
not furnished the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 6.7 Rights of the Trustee; Holders of Senior Indebtedness
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Six in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company or
the Guarantor, the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in this Article
Six, and no implied covenants or obligations with respect to the holders of
such Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior Indebtedness and, subject to the provisions of Section
7.1 of the Indenture, the Trustee shall not be liable to any holder of such
Senior Indebtedness if it shall pay over or deliver to holders of Notes, the
Company, the Guarantor or any other Person money or assets to which any holder
of such Senior Indebtedness shall be entitled by virtue of this Article Six or
otherwise.
SECTION 6.8 Subordination May Not Be Impaired
No right of any present or future holder of any Senior Indebtedness
of the Company or the Guarantor to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or the Guarantor, as the case may be, or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company or the Guarantor, as the case may be, with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company or the Guarantor
may, at any time and from time to time, without the consent of or notice to
the Trustee or the holders of the Notes, without incurring responsibility to
the holders of the Notes and without impairing or releasing the subordination
provided in this Article Six or the obligations hereunder of the holders of
the Notes to the holders of such Senior Indebtedness, do any one or more the
following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, such Senior Indebtedness, or otherwise
amend or supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company or the Guarantor, as the case may be, and any other Person.
ARTICLE VII
COVENANTS
SECTION 7.1 Listing on Exchanges
If the Notes are to be issued as a Global Note in connection with
the distribution of the Notes to the holders of the Preferred Securities
issued by the Trust upon a Dissolution Event, the Company will use its best
efforts to list such Notes on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed.
SECTION 7.2 Limitation on Dividends; Transactions with Affiliates
Section 4.06 of the Indenture is hereby amended and restated in its
entirety as follows:
SECTION 4.06 Limitation on Dividends; Transactions with
Affiliates
If (i) the Company shall have given notice of its election to defer
payments of interest on the Notes by extending the interest payment period as
provided in Section 4.1 of the Third Supplemental Indenture and such period,
or any extension thereof, shall be continuing, (ii) there shall have occurred
any event that would constitute an Event of Default or (iii) the Guarantor
shall be in default with respect to its payment of any obligations under the
Preferred Securities Guarantee or the Common Securities Guarantee, then (a)
the Guarantor and the Company shall not declare or pay any dividend on, make
any distribution with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock, including, in the case of
the Guarantor, the Communications Stock and the Media Stock, and (b) the
Guarantor and the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Guarantor or the Company which rank pari
passu with or junior to such Notes, including the 7.96% Notes and the 7.96%
Notes Guarantee; provided, however, that clause (a) of this Section 4.06
shall not apply to any stock dividends paid by the Guarantor where the
dividend stock is the same stock as that on which the dividend is being paid.
SECTION 7.3 Covenants as to the Trust
Section 4.07 of the Indenture is hereby amended and restated in its
entirety as follows:
SECTION 4.07 Covenants as to the Trust
For so long as the Trust Securities of the Trust remain outstanding,
the Guarantor will (i) directly or indirectly maintain 100% ownership of the
Common Securities; provided, however, that any permitted successor of the
Guarantor under the Indenture may succeed to the Guarantor's ownership of the
Common Securities and (ii) use its reasonable efforts to cause the Trust (a)
to remain a statutory business trust, except in connection with the
distribution of the Notes to the holders of Trust Securities in liquidation of
the Trust, the redemption of all of the Trust Securities or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (b)
to otherwise continue to be classified as a grantor trust for United States
federal income tax purposes.
ARTICLE VIII
FORM OF NOTE
SECTION 8.1 Form of Note
The Notes, the Note Guarantee and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note is a Global
Note within the meaning of the Indenture hereinafter referred to and is
registered in the name of a Depository or a nominee of a Depository. This
Note is exchangeable for Notes registered in the name of a person other than
the Depository or its nominee only in the limited circumstances described in
the Indenture, and no transfer of this Note (other than a transfer of this
Note as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer
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 Depository Trust Company and any
payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
No. __________________ $______________
U S WEST Capital Funding, Inc.
8 % SUBORDINATED DEFERRABLE INTEREST NOTE
DUE 2036
U S WEST CAPITAL FUNDING, INC., a Colorado corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of _____________
Dollars on October 29, 2036, and to pay interest on said principal sum from
October 29, 1996 or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears
on March 31, June 30, September 30 and December 31 of each year commencing
December 31, 1996 at the rate of 8 % per annum until the principal hereof
shall have become due and payable, and on any overdue principal and premium,
if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable
on this Note is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Note (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment [which shall be the close of
business on the business day next preceding such Interest Payment Date unless
otherwise provided for in the Indenture]. [IF PURSUANT TO THE PROVISIONS OF
SECTION 2.11(C) OF THE INDENTURE THE NOTES ARE NO LONGER REPRESENTED BY A
GLOBAL NOTE -- which shall be the close of business on the ____ business day
next preceding such Interest Payment Date.] Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to
the registered holders on such regular record date, and may be paid to the
person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall
be given to the registered holders of this series of Notes not less than 10
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 the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. The
principal of (and premium, if any) and the interest on this Note shall be
payable at the office or agency of the Trustee maintained for that purpose in
any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company
by check mailed to the registered holder at such address as shall appear in
the Security Register. Notwithstanding the foregoing, so long as the Holder
of this Note is the Property Trustee, the payment of the principal of (and
premium, if any) and interest on this Note will be made at such place and to
such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Note is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each Holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such Holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated _________ ___, 1996
U S WEST CAPITAL FUNDING, INC.
By____________________________
Name:
Title:
SEAL
Attest:
By_____________________
Name:
Title: Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By_______________________
Authorized Signatory
[FORM OF GUARANTEE]
FOR VALUE RECEIVED, U S WEST, Inc., a Delaware corporation (the
"Guarantor"), hereby unconditionally guarantees to the holder of the Security
upon which this Guarantee is endorsed the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, or interest on
said Security, when and as the same shall become due and payable, whether at
maturity, upon redemption 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 of, sinking fund payment, if
any, premium, if any, or interest on said Security is due and payable, whether
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, sinking fund payment, if any, premium, if any, or
interest, 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 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 Security of said Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of said
Security 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 Security 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 Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of
said Security 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
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of
and premium, if any, and interest on all Securities 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 or interest by the Company on the
Securities to the holders of the Securities 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.
The obligations of the Guarantor under this Guarantee are, to the
extent provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness, and this Guarantee is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of the Security upon which this Guarantee is endorsed, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder of the Security upon which this Guarantee is
endorsed, by his or her acceptance thereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each Holder upon said provisions.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on
such Security shall have been signed by the Trustee (or the Authentication
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.
U S WEST, Inc.
[SEAL]
By: By:
Name: Name:
Title: Secretary Title:
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an indenture (the "Base Indenture") dated as of September 6, 1995 among the
Company U S WEST Inc., a Colorado corporation, as Guarantor (the "Guarantor")
and Norwest Bank Minnesota, National Association, as Trustee (the "Trustee"),
as supplemented by the Second Supplemental Indenture dated as of October 31,
1995 among the Company, the Guarantor and the Trustee and the Third
Supplemental Indenture dated as of October [ ], 1996 among the Company, the
Guarantor and the Trustee (the Base Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Notes. By the terms of the Indenture, the
Notes are issuable in series which may vary as to amount, date of maturity,
rate of interest and in other respects as in the Indenture provided. This
series of Notes is limited in aggregate principal amount as specified in said
Third Supplemental Indenture.
Because of the occurrence and continuation of a Special Event, the
Company shall have the right to redeem this Note at the option of the Company,
without premium or penalty, in whole or in part, at the principal amount
together with any interest accrued thereon to the date of such redemption (the
"Redemption Price"). The Redemption Price shall be paid prior to 12:00 noon,
New York time, on the date of such redemption or at such earlier time as the
Company determines. The Company shall have the right to redeem this Note at
the option of the Company, without premium or penalty, in whole or in part at
any time on or after October 29, 2001, at the Redemption Price. Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice, at the Redemption Price. If the Notes are only
partially redeemed by the Company, the Notes will be redeemed pro rata or by
lot or by any other method utilized by the Trustee; provided that if, at the
time of redemption, the Notes are registered as a Global Note, the Depository
shall determine the principal amount of such Notes held by each Noteholder to
be redeemed in accordance with its procedures.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Notes; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without
the consent of the Holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the Holders of which are required to consent to
any such supplemental indenture, without the consent of the Holders of each
Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount
of the Notes of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Notes of such series, to waive any past default
in the performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium,
if any, or interest on any of the Notes of such series and except as provided
in Section 4.06 of the Base Indenture. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any 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, which
is absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Notes from time to time to extend the interest payment period of such Notes to
up to 20 consecutive quarters (an "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Notes to the
extent that payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period, the
Company may further extend such Extended Interest Payment Period, provided
that such Extended Interest Payment Period together with all such further
extensions thereof shall not exceed 20 consecutive quarters. At the
termination of any such Extended Interest Payment Period and upon the payment
of all accrued and unpaid interest and any additional amounts then due, the
Company may select a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered holder hereof
on the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in the borough
of Manhattan, the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or
the Trustee duly executed by the registered holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether
or not this Note shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Note
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[The debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
[This Global Note is exchangeable for Notes in definitive form only under
certain limited circumstances set forth in the Indenture. Notes of this
series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [herein and] therein set forth,
Notes of this series [so issued] are exchangeable for a like aggregate
principal amount of Notes of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF NOTES AND GUARANTEES
SECTION 9.1 Original Issue of Notes and Guarantees
Upon execution of this Third Supplemental Indenture, Notes in the
aggregate principal amount of $412,371,150 may be executed by the Company and
Guarantees endorsed thereon executed by the Guarantor. Such Notes and
Guarantees endorsed thereon may be delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Notes to or upon the written order of the Company, signed by its President or
any Vice President and its Secretary or an Assistant Secretary, without any
further action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Ratification of Indenture
The Indenture, as supplemented by this Third Supplemental Indenture,
is in all respects ratified and confirmed, and this Third Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the
extent herein and therein provided. The provisions of this Third Supplemental
Indenture shall supersede the provisions of the Indenture to the extent the
Indenture is inconsistent herewith.
SECTION 10.2 Trustee Not Responsible for Recitals
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this Third Supplemental Indenture.
SECTION 10.3 Governing Law
This Third Supplemental Indenture and each Note shall be deemed to
be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 10.4 Separability
In case any one or more of the provisions contained in this Third
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Third
Supplemental Indenture or of the Notes, but Third Supplemental Indenture and
the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 10.5 Counterparts
This Third Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgements and as of the day and year first above written.
U S WEST Capital Funding, Inc.
By:___________________________
Name:
Title:
Attest:
By:___________________________
Name:
Title:
U S WEST, Inc.
By:
Name:
Title:
Attest:
By:____________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:____________________________
Name:
Title:
STATE OF )
COUNTY OF ) ss.:
On the day of, 1996, before me personally came to be known, who,
being by me duly sworn, did depose and say that he is the of U S WEST
CAPITAL FUNDING, INC., one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation;
that the seal affixed to the said instrument is such corporation seal; that it
was so affixed by authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
NOTARY PUBLIC
Commission expires
[seal]
STATE OF )
COUNTY OF ) SS.:
On the day of, 1996, before me personally came to be known, who,
being by me duly sworn, did depose and say that he is the of U S WEST, INC.,
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
the said instrument is such corporation seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
NOTARY PUBLIC
Commission expires
[seal]