FIRST SUPPLEMENTAL INDENTURE, dated as of April __, 1995 (the
"First Supplemental Indenture"), between U S WEST Capital Funding, Inc., a
Colorado corporation (the "Company"), U S WEST, Inc., a Colorado corporation
(the "Guarantor") and Norwest Bank Minnesota, National Association, as trustee
(the "Trustee") under the Indenture dated as of April __, 1995 between the
Company, the Guarantor and the Trustee (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 ___% Subordinated Deferrable Interest Notes due 2025 (the "Notes"),
and the Guarantor desires to provide for the issuance of a Guarantee of such
Debt Securities (the "Note Guarantee"), 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 First Supplemental Indenture;
WHEREAS, U S WEST Financing [ ], a Delaware statutory business trust
(the "Trust"), has offered to the public $[ ] aggregate liquidation amount of
its ___% 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 in $[ ] aggregate
principal amount of the Notes; and
WHEREAS, the Company and the Guarantor have requested the Trustee
execute and deliver this First Supplemental Indenture, and all requirements
necessary to make this First 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 First 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 First Supplemental Indenture;
(b) a term defined anywhere in this First 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 First 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)
Dissolution Tax Opinion; (iv) No Recognition Opinion; (v)
Property Trustee; (vi) Preferred Security Certificate; (vii)
Regular Trustees; (viii) Special Event; and (ix) Tax Event;
and
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(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Declaration" means the Amended and Restated Declaration of Trust
of U S WEST Financing I, a Delaware business trust, dated as of ___ April
1995.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, 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.
"Extended Maturity Date" means, if the Company elects to extend the
Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is after the Scheduled Maturity Date but before _________, 2044.
"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 Compounded Interest and Additional Interest,
if any.
"Scheduled Maturity Date" means ______________, 2025.
"Senior Indentures" 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
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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 between or among such obligor and
its Affiliates, including all other debt securities and guarantees in respect
of those debt securities, 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 rank pari passu with, or junior to, the Preferred Securities.
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 "____% Subordinated
Deferrable Interest Notes - due 2025", limited in aggregate principal amount to
$[ million], 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
(a) The Maturity Date will be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to extend the Maturity Date
beyond the Scheduled Maturity Date in accordance with
Section 2.2(b), the Extended Maturity Date;
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(b) the Company may at any time before the day which is 90 days
before the Scheduled Maturity Date, elect to extend the
Maturity Date only once to the Extended Maturity Date provided
that the following conditions in this Section 2.2(b) are
satisfied both at the date the Company gives notice in
accordance with Section 2.2(c) of its election to extend the
Maturity Date and at the Scheduled Maturity Date:
(i) the Company is not in bankruptcy or otherwise
insolvent;
(ii) the Company is not in default on any Securities issued
to any U S WEST Trust or any trustee of such U S WEST
Trust in connection with the issuance of Trust
Securities by such U S WEST Trust;
(iii) the Company has made timely payments on the Debenture
for the immediately preceding 18 months without
deferrals;
(iv) the Trust is not in arrears on payments of
Distributions on the Trust Securities issued by it;
and
(v) the Notes are rated Investment grade or the equivalent
by Standard & Poor's Corporation, Moody's Investors
Service, Inc., Fitch Investor Services, Duff & Phelps
Credit Rating Company or any other nationally
recognized statistical rating organization; and
(c) if the Company elects to extend the Maturity Date in
accordance with Section 2.2(b), the Company shall give notice
to registered holders of the Notes, the Property Trustee and
the Trust of the extension of the Maturity Date and the
Extended Maturity Date at least [90] days before the Scheduled
Maturity Date.
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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 Compounded Interest and 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 First 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
present-
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ed 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 First 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 ___% 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 ________ __, 1995), to the person in whose name such Note or any predecessor
Note is registered, at the close of
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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 the Preferred Securities are no longer in book-entry only form
or if pursuant to the provisions of Section 2.11(c) of the Indenture the Notes
are not represented by a Global Note, 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
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SECTION 3.1 SPECIAL EVENT REDEMPTION
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular
Trustees shall have been informed by tax counsel rendering the
Dissolution Tax Opinion that a No Recognition Opinion cannot
be delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), 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 Tax Event (the "90 Day
Period"), provided that, if at the time there is available to the Company the
opportunity to eliminate within the 90 Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no adverse
effect on the Company, the Trust, the Guarantor or the Holders of the Trust
Securities issued by the Trust, the Company shall pursue such Ministerial Action
in lieu of redemption; and provided, further, that the Company shall have no
right to redeem the Notes while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration.
SECTION 3.2 OPTIONAL REDEMPTION BY COMPANY
(a) Subject to the provisions of Article Three of the Indenture
and to Section 3.2(b), the Company shall have the right to
redeem the Notes, in whole or in part, from time to time, on
or after __________ __,2000, 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 "Optional Redemption Price"). Any redemption pursuant to
this paragraph will be made upon not less than 30 nor more
than 60 days' notice
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to the registered holder of the Notes, at the Optional
Redemption Price. If the Notes are only partially redeemed
pursuant to this Section 3.2, 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 by
lot the principal amount of such Notes held by each Noteholder
to be redeemed.
(b) 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 3.3 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
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
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("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
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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,
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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 subject in right of payment to the
prior payment in full of all Senior Indebted-
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ness 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 Guarantees issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject 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.
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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
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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
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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
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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.
18
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 First 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
19
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,
20
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
21
COVENANT TO LIST ON EXCHANGE
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.
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
22
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
No. __________________ $_____________
CUSIP No._____________
U S WEST Capital Funding, Inc.
____% SUBORDINATED DEFERRABLE INTEREST NOTE
DUE 2025
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 ____________, 2025 (or on such later date before ____, 2044 if the
Company elects to extend the maturity date as further described herein), and to
pay interest on said principal sum from ____________, 1995 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 31 and
December 31 of each year commencing _____________, 1995 at the rate of _____%
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
23
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 Notes, 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]. [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 Notes) 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
24
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.
Unless the Certificate of Authentication hereon has been executed by
the Trustee referred to on the reverse side hereof, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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.
25
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated___________________
U S WEST CAPITAL FUNDING, INC.
By______________________
[ ]
Attest:
By_____________________
Secretary
26
(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 or as Authentication Agent
By_______________________ By_____________________
Authorized Signatory Authorized Signatory
[FORM OF GUARANTEE]
FOR VALUE RECEIVED, U S WEST, Inc., a Colorado 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.
27
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).
28
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
signed in its corporate name by the facsimile signature of two of its officers
thereunto duly authorized and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted or otherwise reproduced hereon.
U S WEST, Inc.
_________________________[seal] _________________________
[Title] [Title]
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes 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
dated as of ____________ __, 1995 duly executed and delivered between the
Company and Norwest Bank Minnesota, National Association, as Trustee (the
"Trustee")and U S WEST Inc., a Colorado corporation as Guarantor (the
"Guarantor"), as supplemented by the First Supplemented Indenture dated as of
____________, 1995 between the Company and the Trustee (the 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 First Supplemental Indenture.
Because of the occurrence and continuation of a Tax Event, in
certain circumstances this Note will become due and payable at the principal
amount together with any interest accrued thereon, (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
29
redeem this Note at the option of the Company, without premium or penalty, in
whole or in part at any time on or after _____________, 2000 (an "Optional
Redemption"), at a redemption price equal to 100% of the principal amount plus
any accrued but unpaid interest, to the date of such redemption (the "Optional
Redemption Price"). Any redemption pursuant to this paragraph will be made
upon not less than 30 nor more than 60 days' notice, at the Optional Redemption
Price. If the Notes are only partially redeemed by the Company pursuant to an
Optional Redemption, 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 by lot the principal amount of such Notes held by each Noteholder to
be redeemed.
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
30
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. 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 bor-
31
ough 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 aggre-
32
gate 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
SECTION 9.1 ORIGINAL ISSUE OF NOTES
Notes in the aggregate principal amount of $________ may, upon
execution of this First Supplemental Indenture, be executed by the Company and
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 Chairman, its President, or any Vice President and its Treasurer
or an Assistant Treasurer, without any further action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 RATIFICATION OF INDENTURE
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
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 First Supplemental Indenture.
SECTION 10.3 GOVERNING LAW
33
This First 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 First
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 First
Supplemental Indenture or of the Notes, but First 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 First 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.
34
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, 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____________________________
Attest:
_____________________________
Secretary
U S WEST, Inc.
By____________________________
Attest:
_____________________________
Secretary
35
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By_______________________________
36
STATE OF )
COUNTY OF ) ss.:
On the ________ day of _____________, 1995, 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
[seal] Commission expires
STATE OF )
COUNTY OF ) SS.:
On the ______ day of ________________, 1995, 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
[seal] Commission expires
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