EXHIBIT 4-E
QWEST CAPITAL FUNDING, INC.
Officers' Certificate
Pursuant to Sections 2.02, 2.03 and 11.04 of the Indenture,
dated as of June 29, 1998, as supplemented by the First Supplemental Indenture,
dated as of June 30, 2000 (as so supplemented, the "Indenture"), each among
Qwest Capital Funding, Inc. (the "Corporation"), Qwest Communications
International Inc. (as successor to U S WEST, Inc.) (the "Guarantor"), and Bank
One Trust Company, National Association, as trustee (the "Trustee"), each of the
undersigned, the Executive Vice President, General Counsel, Chief Administrative
Officer and Secretary, and the Associate General Counsel and Assistant Secretary
of the Corporation, hereby certifies, on the Corporation's behalf, as follows:
(1) The issuance of Securities of the series designated as the
"5 7/8% Notes due August 3, 2004" in an aggregate principal amount of
$1,250,000,000 (the "2004 Notes"), the series designated as the "7%
Notes due August 3, 2009" in an aggregate principal amount of
$2,000,000,000 (the "2009 Notes") and the series designated as the
"7 5/8% Notes due August 3, 2021" in an aggregate principal amount of
$500,000,000 (the "2021 Notes," and, collectively with the 2004 Notes
and the 2009 Notes, the "Notes") have been approved and authorized in
accordance with the provisions of the Indenture by resolutions adopted
by the Board of Directors of the Corporation by unanimous written
consent effective as of July 25, 2001; such resolutions have not been
amended, modified or rescinded and remain in full force and effect; and
such resolutions are the only resolutions adopted by the Corporation's
Board of Directors, or any committee of such Board of Directors,
relating to the Notes;
(2) The Notes are being sold by the Corporation pursuant to an
Offering Memorandum, dated July 25, 2001 (the "Offering Memorandum");
(3) The terms of the series of Notes shall be as follows:
(a) The title of the Notes are "5 7/8% Notes due August
3, 2004", the "7% Notes due August 3, 2009" and the
"7 5/8% Notes due August 3, 2021".
(b) The 2004 Notes are to be issued in an aggregate
principal amount of $1,250,000,000, the 2009 Notes
are to be issued in an aggregate principal amount
of $2,000,000,000 and the 2021 Notes are to be
issued in an aggregate principal amount of
$500,000,000.
(c) The principal amount of the 2004 Notes shall be
payable on August 3, 2004, the principal amount of
the 2009 Notes shall be payable on August 3, 2009
and the principal amount of the 2021 Notes shall be
payable on August 3, 2021.
(d) The 2004 Notes shall bear interest at a rate of
5 7/8% per annum, the 2009 Notes shall bear
interest at a rate of 7% per annum and the
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2021 Notes shall bear interest at a rate of 7 5/8%
per annum, each payable as set forth in the Notes
attached hereto as Appendix A which is hereby
incorporated in and expressly made a part of this
Officers' Certificate.
(e) Provisions relating to form, transfer and exchange
of the Notes are set forth in Appendix A. The
certificates for the Notes shall be in
substantially the form of Appendix A.
(f) The Notes will be issued and transferable only in
denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000.
The Notes may be issued in book-entry form and, if
so issued, will be represented by Global Notes (as
defined in Appendix A) delivered to the Depositary
(as defined in Appendix A), and recorded in the
book-entry system maintained by the Depositary, all
in accordance with the provisions set forth in
Appendix A.
(g) Payments of principal, premium, if any, and
interest on the Notes will be made to the
Depositary, or its nominee, as the case may be, as
the registered owner or holder of the Global Notes.
In the event that any of the Notes are issued in
certificated form in exchange for the Global Notes,
as set forth in Appendix A, principal and interest
thereon will be payable at the office of the Paying
Agent in The City of New York designated for such
purpose; provided that payment of interest, other
than interest payable at maturity or upon
redemption, may be made at the option of the
Corporation by check mailed by the Paying Agent to
the address of the person entitled thereto as shown
on the debt securities register.
(h) The Trustee shall be the Registrar and initial
transfer agent for the Notes (subject to the
Corporation's right to remove the Trustee as such
transfer agent and, from time to time, to designate
one or more other transfer agents and to rescind
from time to time any such designations).
(i) The Notes are redeemable at the option of the
Corporation as described in Appendix A. The Notes
will not be subject to any sinking fund.
(j) The Notes shall be sold by the Corporation to
Lehman Brothers Inc. Merrill Lynch, Pierce, Fenner
& Smith Incorporated, and the several initial
purchasers named in Schedule I of the Purchase
Agreement (collectively, the "Initial Purchasers")
dated July 25, 2001 (the "Purchase Agreement"),
among the Company, the Guarantor, and the Initial
Purchasers. The 2004 Notes will be sold to the
Initial Purchasers at a price equal to 99.570% of
the
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principal amount thereof, the 2009 Notes will be
sold to the Initial Purchasers at a price equal
to 98.702% of the principal amount thereof and the
2021 Notes will be sold to the Initial Purchasers
at a price equal to 98.083% of the principal amount
thereof; the Initial Purchasers will offer the
Notes from time to time for sale in one or more
negotiated transactions, or otherwise, at market
prices prevailing at the time of sale, at prices
related to such market prices or at negotiated
prices.
(4) All covenants or conditions precedent provided for in the
Indenture relating to the establishment of the series of Securities
herein described, the terms of such series, and the authentication of
the Notes have been complied with.
Each of the undersigned states that he has read and is
familiar with the provisions of Article Two of the Indenture relating to the
issuance of Securities thereunder; that he is generally familiar with the other
provisions of the Indenture and with the affairs of the Corporation and its
corporate acts and proceedings; and that in his opinion, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not the covenants and conditions referred to
above have been complied with.
Capitalized terms used herein and not otherwise defined herein
have the meanings specified in the Indenture.
IN WITNESS WHEREOF, we have hereunto signed our names and
affixed the seal of the Corporation.
Dated as of July 30, 2001
By: /s/ DRAKE S. TEMPEST
---------------------------
Name: Drake S. Tempest
Title: Executive Vice President, General
Counsel, Chief Administrative Officer
and Secretary
By: /s/ YASH A. RANA
---------------------------
Name: Yash A. Rana
Title: Associate General Counsel and
Assistant Secretary
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REGULATION S GLOBAL NOTE
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK)
("DTC"), NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND IN THE INDENTURE REFERRED
TO HEREIN.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC,
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT AMONG
THE COMPANY, QWEST COMMUNICATIONS INTERNATIONAL INC., AND THE INITIAL PURCHASERS
NAMED THEREIN, DATED JULY 30, 2001 (THE "REGISTRATION RIGHTS AGREEMENT"). THE
COMPANY WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF
BUSINESS.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER THIS NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S (AS DEFINED
BELOW) RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND WARRANTS THAT IF IT IS A PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S OF THE SECURITIES ACT, IT ACKNOWLEDGES
THAT, UNTIL EXPIRATION OF THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" WITHIN THE
MEANING OF RULE 903 OF REGULATION S, ANY OFFER OR SALE OF THIS NOTE SHALL NOT BE
MADE BY IT TO A U.S. PERSON TO FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
WITHIN THE MEANING OF RULE 902(o) UNDER THE SECURITIES ACT."
REGISTERED PRINCIPAL AMOUNT
No. [____] $[__________]
CUSIP No. [__________]
QWEST CAPITAL FUNDING, INC.
[____]% Notes due [___________, 20__]
Unconditionally Guaranteed as to Payment of
Principal, Premium, if any, and Interest by
QWEST COMMUNICATIONS INTERNATIONAL INC.
QWEST CAPITAL FUNDING, INC. (formerly known as U S WEST Capital
Funding, Inc.), a corporation duly organized and existing under the laws of the
State of Colorado (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of [_____________________________________________] DOLLARS
($[__________]) (or such lesser amount as shall be listed on the Schedule of
Increases or Decreases in Global Note attached hereto) on [___________, 20__]
(the "Maturity Date"), unless previously redeemed on any Redemption Date (as
defined below), by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts and to pay interest
thereon semiannually on each February 3 and August 3, commencing February 3,
2002
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(each, an "Interest Payment Date"), and on the Maturity Date at the rate per
annum specified in the title of this Note, from July 30, 2001 (or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for) until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the Company shall default in the payment of
interest due on any Interest Payment Date, then this Note shall bear interest
from the most recent Interest Payment Date to which interest has been paid or,
if no interest has been paid on this Note, from July 30, 2001. The interest so
payable on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture referred to herein, be paid to the person in whose
name this Note shall be registered at the close of business on the date 15 days
immediately prior to such Interest Payment Date or Maturity Date unless such
date is a Legal Holiday (as defined in the Indenture), in which event such
payment shall be made on the next succeeding day that is not a Legal Holiday.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months.
This Note is one of the duly authorized series of Securities of the
Company, designated as the Company's "[____]% Notes due [___________, 20__]"
(the "Notes"), initially limited to the aggregate principal amount of
$[__________], all issued or to be issued under and pursuant to an Indenture
dated as of June 29, 1998, as amended, modified or supplemented from time to
time (as so amended, modified or supplemented, the "Indenture"), duly executed
and delivered by the Company and Qwest Communications International Inc., as
successor to U S WEST, Inc. (the "Guarantor"), to Bank One Trust Company,
National Association, as trustee (hereinafter referred to as the "Trustee"), to
which the Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitation of rights, obligations, duties
and immunities thereunder of the Trustee, the Company, the Guarantor and the
Holders (the words "Holders" or "Holder" meaning the registered holders or
registered holder of the Notes). Exchange Notes (as such term is defined in the
Registration Rights Agreement referred to below) shall be deemed to be of the
same series as the Notes for purposes of the Indenture.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated as of July 30, 2001, among the Company, the Guarantor
and the Initial Purchasers named therein (as the same may be amended from time
to time, the "Registration Rights Agreement"). In the event that (i) the
Exchange Offer Registration Statement (as such term is defined in the
Registration Rights Agreement) is not filed with the Securities and Exchange
Commission (the "Commission") on or prior to the 150th calendar day following
July 30, 2001, (the "Closing Date"), (ii) the Exchange Offer Registration
Statement has not been declared effective by the Commission on or prior to the
210th calendar day following the Closing Date, (iii) the Exchange Offer (as such
term is defined in the Registration Rights Agreement) is not consummated or a
Shelf Registration Statement (as such term is defined in the Registration Rights
Agreement) is not declared effective by the Commission on or prior to the 240th
calendar day following the Closing Date or (iv) the Shelf Registration Statement
has been declared effective but such Shelf Registration Statement ceases to be
effective or the Prospectus (as such term is defined in the Registration Rights
Agreement) ceases to be usable for resales (A) at any time prior to the
expiration of the Effectiveness Period (as such term is defined in the
Registration Rights Agreement) or (B) if related to corporate developments,
public filings or similar events or to correct a material misstatement or
omission in the Prospectus, for more than 60 days (whether or not consecutive)
in any twelve-month period, then in each such case the Special Interest Premium
(as such term is defined in the Registration Rights Agreement) shall accrue in
respect of this Note
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from and including the next calendar day following each of (a) such 150-day
period in the case of clause (i) above, (b) such 210-day period in the case of
clause (ii) above, (c) such 240-day period in the case of clause (iii) above,
and from and including such day (in the case of clause (iv)(A) above), or the
61st day after (in the case of clause (iv)(B) above), such Shelf Registration
Statement ceases to be effective or the Prospectus ceases to be usable for
resales, in each case at a rate equal to 0.25% per annum. Any Special Interest
Premium due will be payable in cash on the next succeeding February 3 or August
3, as the case may be, to Holders on the relevant Regular Record Dates for the
payment of interest. The aggregate amount of the Special Interest Premium in
respect of this Note payable pursuant to the above provisions shall in no event
exceed 0.25% per annum; provided, however, that if the Exchange Offer
Registration Statement is not declared effective on or prior to the 240th
calendar day following the Closing Date, and the Company and the Guarantor shall
request the Holder of this Note to provide the information called for by the
Registration Rights Agreement for inclusion in the Shelf Registration Statement,
this Note, if owned by a Holder who does not deliver such information to the
Company and the Guarantor when required pursuant to the Registration Rights
Agreement, will not be entitled to any such Special Interest Premium for any day
after the 240th day following the Closing Date. Upon (1) the filing of the
Exchange Offer Registration Statement after the 150-day period described in
clause (i) above, (2) the effectiveness of the Exchange Offer Registration
Statement after the 210-day period described in clause (ii) above, (3) the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 240-day period described in clause
(iii) above or (4) the earlier of (x) the return to effectiveness of the Shelf
Registration Statement or (y) the usability of the Prospectus for resales or (z)
the expiration of the Effectiveness Period (as such term is defined in the
Registration Rights Agreement) (in the case of clause (iv) above), the interest
rate on this Note from the date of such filing, effectiveness, consummation or
expiration of the applicable time period, as the case may be, will be reduced to
the original interest rate of [____]% per annum. The Company shall promptly
provide the Trustee with notice of any change in the interest rate borne by this
Note.
The Notes shall be redeemable at the option of the Company in whole at
any time or in part from time to time, at a redemption price equal to the
greater of (i) 100% of the principal amount of this Note to be redeemed and (ii)
the sum, as determined by the Quotation Agent (as defined below), of the present
values of the principal amount of this Note to be redeemed and the remaining
scheduled payments of interest on the principal amount of this Note to be
redeemed from the redemption date to [__________, 20__] (the "Remaining Life"),
discounted from their respective scheduled payment dates to the redemption date
on a semiannual basis (assuming a 360-day year consisting of 30-day months) at
the Treasury Rate (as defined below) plus __ basis points, plus, in either case,
accrued interest thereon to the date of redemption.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity with the Remaining Life.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of two Reference Treasury Dealer Quotations for such redemption
date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
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"Reference Treasury Dealer" means each of Merrill Lynch Government
Securities Inc. and Lehman Brothers Inc., and their successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual yield to maturity of the Comparable Treasury
Issue, calculated on the third Business Day preceding such redemption date using
a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such redemption
date.
Notice of any redemption will be mailed not less than 15 nor more than
60 calendar days before the redemption date to the Holder hereof at its
registered address. Unless the Company defaults in payment of the redemption
price, on and after the redemption date interest will cease to accrue on the
principal amount of this Note.
If money sufficient to pay the redemption price with respect to and
accrued interest on the principal amount of this Note to be redeemed on the
redemption date is deposited with the Trustee on or before the redemption date
and certain other conditions are satisfied, then on and after such date,
interest will cease to accrue on the principal amount of this Note.
Except as provided above, this Note is not redeemable by the Company
prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the
principal hereof 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, the Guarantor
and the Trustee, with the written consent of the Holders of a majority in
principal amount of the outstanding Securities of each series affected by a
supplemental indenture (with each series voting as a class), to enter into a
supplemental indenture to add any provisions to or to change or eliminate any
provisions of the Indenture or of any supplemental indenture or to modify, in
each case in any manner not covered by provisions in the Indenture relating to
amendments and waivers without the consent of Holders, the rights of the Holders
of each such series. The Holders of a majority in principal amount of the
outstanding Securities of each series affected by such waiver (with each series
voting as a class), by notice to the Trustee, may waive compliance by the
Company or the Guarantor with any provision of the Indenture, any supplemental
indenture or the Securities of any such series, except a Default in payment of
the principal of, premium on or interest on any Security. However, without the
consent of each Holder affected, an amendment or waiver may not: (1) reduce the
amount of Securities whose Holders must consent to an amendment or waiver;
5
(2) change the rate of or change the time for payment of interest on any
Security; (3) change the principal of or change the fixed maturity of any
Security; (4) waive a Default in the payment of the principal of, premium on or
interest on any Security; (5) make any Security payable in money other than that
stated in the Security; or (6) make any change in the provisions of the
Indenture: (i) with respect to the right of the Holders of a majority in
principal amount of any series of Securities, by notice to the Trustee, to waive
an existing Default with respect to that series and its consequences; (ii) with
respect to the right of any Holder of a Security to receive payment of principal
of, premium on and interest on the Security, on or after the respective due
dates expressed in the Security, the right of any Holder of a coupon to receive
payment of interest due as provided in such coupon, or the right to bring suit
for enforcement of any such payments on or after their respective dates; and
(iii) described in this sentence.
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, premium, if any, and
interest on this Note at the place, at the respective times, at the rate, and in
the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company
or the Guarantor shall have any liability for any obligations of the Company
under this Note or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder, by accepting this
Note, waives and releases all such liability. The waiver and release are part of
the consideration for the issue of this Note and the Guarantee endorsed hereon.
The laws of the State of New York shall govern the Indenture and this
Note.
Ownership of this Note shall be proved by the register for the Notes
kept by the Registrar. The Company, the Guarantor, the Trustee and any agent of
the Company may treat the person in whose name a Note is registered as the
absolute owner thereof for all purposes.
Terms used herein without definition that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by
the Trustee under the Indenture referred to herein by the manual signature of
one of its authorized officers, or on behalf of the Trustee by the manual
signature of an authorized officer of the Trustee's authenticating agent, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or by facsimile, and its corporate seal or a facsimile of its
corporate seal to be imprinted hereon.
Date: [__________, 20__]
QWEST CAPITAL FUNDING, INC.
(SEAL)
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein, issued under
the Indenture described herein.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
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GUARANTEE OF QWEST COMMUNICATIONS INTERNATIONAL INC.
FOR VALUE RECEIVED, Qwest Communications International Inc. (as
successor to U S WEST, Inc.) a corporation duly organized and existing under the
laws of the State of Delaware (the "Guarantor"), hereby unconditionally
guarantees to the holder of the Note upon which this Guarantee is endorsed the
due and punctual payment of the principal, premium, if any, and interest on said
Note, when and as the same shall become due and payable, whether at maturity or
otherwise, according to the terms thereof and of the Indenture referred to
therein.
The Guarantor agrees to determine, at least one business day prior to
the date upon which a payment of principal, premium, if any, or interest on said
Note is due and payable, whether Qwest Capital Funding, Inc. (the "Company") has
available the funds to make such payment as the same shall become due and
payable. In case of the failure of the Company punctually to pay any such
principal, premium, if any, or interest, 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 or otherwise, and as if such payment were made by
the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable and absolute, irrespective of the validity,
regularity, or enforceability of said Note or the Indenture, dated as of June
29, 1998 (the "Indenture"), by and among the Company, the Guarantor and Bank One
Trust Company, National Association, as trustee, the absence of any action to
enforce the same, any waiver or consent by the holder of said Note with respect
to any provisions thereof, the recovery of any judgment against the Company or
any action to enforce the same, or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to said Note or indebtedness evidenced thereby and all demands
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the obligations contained in said Note and in this
Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Note against the Company in respect to any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the holders of all of the Notes then
outstanding, be entitled to enforce or to receive any payments arising out of or
based upon such right of subrogation until the principal, premium, if any, and
interest on all Notes of the Company known as "[____]% Notes due [__________,
20__]" shall have been paid in full or payment thereof shall have been provided
for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following
any payment of principal, premium, if any, or interest by the Company on the
Notes to the holders of the Notes it is determined by a final decision of a
court of competent jurisdiction that such payment shall be avoided by a trustee
in bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such holder to such trustee in
bankruptcy, then and to the extent of such repayment the obligations of the
Guarantor hereunder shall remain in full force and effect.
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This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Note until the certificate of authentication of such Note
shall have been signed by the Trustee or on its behalf by the Trustee's
authenticating agent.
This Guarantee shall be governed by the laws of the State of New York.
9
IN WITNESS WHEREOF, Qwest Communications International Inc. has caused
this Guarantee to be signed in its corporate name by the signature of two of its
officers thereunto duly authorized and has caused its corporate seal to be
affixed hereunto.
QWEST COMMUNICATIONS
INTERNATIONAL INC.
By:
-------------------------------
Name:
Title:
(SEAL)
By:
-------------------------------
Name:
Title:
10
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
---------------------------------------------------------------------------
Please insert social security number or other identifying number of assignee:
--------------------------------------
Please print or type name and address (including zip code) of assignee:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________ attorney to transfer said Note of Qwest Capital
Funding, Inc. on the books of Qwest Capital Funding, Inc, with full power of
substitution in the premises.
--------------------------------------
Dated:
-------------------------------
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of this Note in every particular without alteration or
enlargement or any change whatsoever.
11
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
This certificate relates to $_________ principal amount of Notes held
in (check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
: has requested the Trustee by written order to deliver in exchange
for its beneficial interest in the Note held by the Depository a Note or Notes
in definitive, registered form of authorized denominations and an aggregate
principal amount equal to its beneficial interest in such Note (or the portion
thereof indicated above); or
: has requested the Trustee by written order to exchange or register
the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
: (1) to the Company; or
: (2) pursuant to an effective registration statement under the
Securities Act; or
: (3) inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that such transfer is being made in reliance on Rule 144A, in each case
pursuant to and in compliance with Rule 144A under the Securities Act; or
: (4) outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in compliance with Rule 904
under the Securities Act; or
: (5) pursuant to another available exemption from registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (4) or (5) is
checked, the Trustee may require, prior to registering any such transfer of the
Notes, such legal opinions, certifications and other information as the Company
and the Trustee has reasonably requested to confirm that such transfer is being
made
12
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
Date: ------------------------------------
------------ SIGNATURE OR SIGNATURE GUARANTEE:
NOTICE: Signature must be guaranteed
by a participant in a recognized
signature guaranty medallion program
or other signature guarantor
acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing the Notes
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company and the
Guarantor as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
----------------
------------------------------
NOTICE: To be executed by an executive officer
13
RULE 144A GLOBAL NOTE
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK)
("DTC"), NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND IN THE OFFICERS'
CERTIFICATE OF QWEST CAPITAL FUNDING, INC. ("THE COMPANY") DATED JULY 30, 2001
PURSUANT TO THE INDENTURE REFERRED TO HEREIN.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC,
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT AMONG
THE COMPANY, QWEST COMMUNICATIONS INTERNATIONAL INC., AND THE INITIAL PURCHASERS
NAMED THEREIN, DATED JULY 30, 2001 (THE "REGISTRATION RIGHTS AGREEMENT"). THE
COMPANY WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF
BUSINESS.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S (AS DEFINED
BELOW) RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
REGISTERED PRINCIPAL AMOUNT
No. [____] $[__________]
CUSIP No. [__________]
QWEST CAPITAL FUNDING, INC.
[___]% Notes due [___________, 20__]
Unconditionally Guaranteed as to Payment of
Principal, Premium, if any, and Interest by
QWEST COMMUNICATIONS INTERNATIONAL INC.
QWEST CAPITAL FUNDING, INC. (formerly known as U S WEST Capital
Funding, Inc.), a corporation duly organized and existing under the laws of the
State of Colorado (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of [_____________________________________________] DOLLARS
($[__________]) (or such lesser amount as shall be listed on the Schedule of
Increases or Decreases in Global Note attached hereto) [___________, 20__] (the
"Maturity Date"), unless previously redeemed on any Redemption Date (as defined
below), by wire transfer of immediately available funds in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts and to pay interest thereon
semiannually on each February 3 and August 3, commencing February 3, 2002 (each,
an "Interest Payment Date"), and on the Maturity Date at the rate per annum
specified in the title of this Note, from July 30, 2001 (or from the most recent
Interest Payment Date to which interest has been paid or duly provided for)
until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the Company shall default in the payment of
interest due on any Interest Payment Date, then this Note shall bear interest
from the most recent Interest Payment Date to which interest has been paid or,
if no interest has been paid on this Note, from July 30, 2001. The interest so
payable on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture referred to herein, be paid to the person in whose
name this Note shall be registered at the close of business on the date 15 days
immediately prior to such
2
Interest Payment Date or Maturity Date Interest will be computed on the basis of
a 360-day year consisting of twelve 30-day months. If any Interest Payment Date,
Maturity Date or redemption date is a Legal Holiday (as defined in the
Indenture) in New York, New York, the required payment will be made on the next
succeeding day that is not a Legal Holiday as if it were made on the date such
payment was due and no interest will accrue on the amount so payable for the
period from and after such Interest Payment Date, maturity date or redemption
date, as the case may be, to such next succeeding day.
This Note is one of the duly authorized series of Securities of the
Company, designated as the Company's "[____]% Notes due [___________, 20__]"
(the "Notes"), initially limited to the aggregate principal amount of
$[__________], all issued or to be issued under and pursuant to an Indenture
dated as of June 29, 1998, as amended, modified or supplemented from time to
time (as so amended, modified or supplemented, the "Indenture"), duly executed
and delivered by the Company and Qwest Communications International Inc. (as
successor to U S WEST, Inc.), (the "Guarantor"), to Bank One Trust Company,
National Association, as trustee (hereinafter referred to as the "Trustee"), to
which Indenture and all Indentures supplemental thereto reference is hereby made
for a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Trustee, the Company, the Guarantor and the Holders
(the words "Holders" or "Holder" meaning the registered holders or registered
holder of the Notes). Exchange Notes (as such term is defined in the
Registration Rights Agreement referred to below) shall be deemed to be of the
same series as the Notes for purposes of the Indenture.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated as of July 30, 2001, among the Company, the Guarantor
and the Initial Purchasers named therein (as the same may be amended from time
to time, the "Registration Rights Agreement"). In the event that (i) the
Exchange Offer Registration Statement (as such term is defined in the
Registration Rights Agreement) is not filed with the Securities and Exchange
Commission (the "Commission") on or prior to the 150th calendar day following
July 30, 2001, (the "Closing Date"), (ii) the Exchange Offer Registration
Statement has not been declared effective by the Commission on or prior to the
210th calendar day following the Closing Date, (iii) the Exchange Offer (as such
term is defined in the Registration Rights Agreement) is not consummated or a
Shelf Registration Statement (as such term is defined in the Registration Rights
Agreement) is not declared effective by the Commission on or prior to the 240th
calendar day following the Closing Date or (iv) the Shelf Registration Statement
has been declared effective but such Shelf Registration Statement ceases to be
effective or the Prospectus (as such term is defined in the Registration Rights
Agreement) ceases to be usable for resales (A) at any time prior to the
expiration of the Effectiveness Period (as such term is defined in the
Registration Rights Agreement) or (B) if related to corporate developments,
public filings or similar events or to correct a material misstatement or
omission in the Prospectus, for more than 60 days (whether or not consecutive)
in any twelve-month period, then in each such case the Special Interest Premium
(as such term is defined in the Registration Rights Agreement) shall accrue in
respect of this Note from and including the next calendar day following each of
(a) such 150-day period in the case of clause (i) above, (b) such 210-day period
in the case of clause (ii) above, (c) such 240-day period in the case of clause
(iii) above, and from and including such day (in the case of clause (iv)(A)
above), or the 61st day after (in the case of clause (iv)(B) above), such Shelf
Registration Statement ceases to be effective or the Prospectus ceases to be
usable for resales, in each case at a rate equal to 0.25% per annum. Any Special
Interest Premium due will be payable in cash on the
3
next succeeding February 3 or August 3, as the case may be, to Holders on the
relevant Regular Record Dates for the payment of interest. The aggregate amount
of the Special Interest Premium in respect of this Note payable pursuant to the
above provisions shall in no event exceed 0.25% per annum; provided, however,
that if the Exchange Offer Registration Statement is not declared effective on
or prior to the 240th calendar day following the Closing Date, and the Company
and the Guarantor shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement, this Note, if owned by a Holder who does not
deliver such information to the Company and the Guarantor when required pursuant
to the Registration Rights Agreement, will not be entitled to any such Special
Interest Premium for any day after the 240th day following the Closing Date.
Upon (1) the filing of the Exchange Offer Registration Statement after the
150-day period described in clause (i) above, (2) the effectiveness of the
Exchange Offer Registration Statement after the 210-day period described in
clause (ii) above, (3) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be, after the
240-day period described in clause (iii) above or (4) the earlier of (x) the
return to effectiveness of the Shelf Registration Statement or (y) the usability
of the Prospectus for resales or (z) the expiration of the Effectiveness Period
(as such term is defined in the Registration Rights Agreement) (in the case of
clause (iv) above), the interest rate on this Note from the date of such filing,
effectiveness, consummation or expiration of the applicable time period, as the
case may be, will be reduced to the original interest rate of [___]% per annum.
The Company shall promptly provide the Trustee with notice of any change in the
interest rate borne by this Note.
The Notes shall be redeemable at the option of the Company in whole at
any time or in part from time to time, at a redemption price equal to the
greater of (i) 100% of the principal amount of this Note to be redeemed and (ii)
the sum, as determined by the Quotation Agent (as defined below), of the present
values of the principal amount of this Note to be redeemed and the remaining
scheduled payments of interest on the principal amount of this Note to be
redeemed from the redemption date to [__________, 20__] (the "Remaining Life"),
discounted from their respective scheduled payment dates to the redemption date
on a semiannual basis (assuming a 360-day year consisting of 30-day months) at
the Treasury Rate (as defined below) plus __ basis points, plus, in either case,
accrued interest thereon to the date of redemption.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity with the Remaining Life.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of two Reference Treasury Dealer Quotations for such redemption
date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government
Securities Inc. and Lehman Brothers Inc., and their successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
4
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual yield to maturity of the Comparable Treasury
Issue, calculated on the third Business Day preceding such redemption date using
a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such redemption
date.
Notice of any redemption will be mailed not less than 15 nor more than
60 calendar days before the redemption date to the Holder hereof at its
registered address. Unless the Company defaults in payment of the redemption
price, on and after the redemption date interest will cease to accrue on the
principal amount of this Note.
If money sufficient to pay the redemption price with respect to and
accrued interest on the principal amount of this Note to be redeemed on the
redemption date is deposited with the Trustee on or before the redemption date
and certain other conditions are satisfied, then on and after such date,
interest will cease to accrue on the principal amount of this Note.
Except as provided above, this Note is not redeemable by the Company
prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the
principal hereof 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, the Guarantor
and the Trustee, with the written consent of the Holders of a majority in
principal amount of the outstanding Securities of each series affected by a
supplemental indenture (with each series voting as a class), to enter into a
supplemental indenture to add any provisions to or to change or eliminate any
provisions of the Indenture or of any supplemental indenture or to modify, in
each case in any manner not covered by provisions in the Indenture relating to
amendments and waivers without the consent of Holders, the rights of the Holders
of each such series. The Holders of a majority in principal amount of the
outstanding Securities of each series affected by such waiver (with each series
voting as a class), by notice to the Trustee, may waive compliance by the
Company or the Guarantor with any provision of the Indenture, any supplemental
indenture or the Securities of any such series, except a Default in payment of
the principal of, premium on or interest on any Security. However, without the
consent of each Holder affected, an amendment or waiver may not: (1) reduce the
amount of Securities whose Holders must consent to an amendment or waiver; (2)
change the rate of or change the time for payment of interest on any Security;
(3) change the principal of or change the fixed maturity of any Security; (4)
waive a Default in the payment of the principal of, premium on or interest on
any Security; (5) make any Security payable in money other than that stated in
the Security; or (6) make any change in the provisions of the Indenture: (i)
with respect to the right of the Holders of a majority in principal amount of
any series of
5
Securities, by notice to the Trustee, to waive an existing Default with respect
to that series and its consequences; (ii) with respect to the right of any
Holder of a Security to receive payment of principal of, premium on and interest
on the Security, on or after the respective due dates expressed in the Security,
the right of any Holder of a coupon to receive payment of interest due as
provided in such coupon, or the right to bring suit for enforcement of any such
payments on or after their respective dates; and (iii) described in this
sentence.
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, premium, if any, and
interest on this Note at the place, at the respective times, at the rate, and in
the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company
or the Guarantor shall have any liability for any obligations of the Company
under this Note or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder, by accepting this
Note, waives and releases all such liability. The waiver and release are part of
the consideration for the issue of this Note and the Guarantee endorsed hereon.
The laws of the State of New York shall govern the Indenture and this
Note.
Ownership of this Note shall be proved by the register for the Notes
kept by the Registrar. The Company, the Guarantor, the Trustee and any agent of
the Company may treat the person in whose name a Note is registered as the
absolute owner thereof for all purposes.
Terms used herein without definition that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by
the Trustee under the Indenture referred to herein by the manual signature of
one of its authorized officers, or on behalf of the Trustee by the manual
signature of an authorized officer of the Trustee's authenticating agent, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or by facsimile, and its corporate seal or a facsimile of its
corporate seal to be imprinted hereon.
Date: [__________, 20__]
QWEST CAPITAL FUNDING, INC.
(SEAL)
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein, issued under
the Indenture described herein.
Bank One Trust Company, National Association,
as Trustee
By:
------------------------------------------
Authorized Signatory
7
GUARANTEE OF QWEST COMMUNICATIONS INTERNATIONAL INC.
FOR VALUE RECEIVED, Qwest Communications International Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Guarantor"), hereby unconditionally guarantees to the holder of the Note
upon which this Guarantee is endorsed the due and punctual payment of the
principal, premium, if any, and interest on said Note, when and as the same
shall become due and payable, whether at maturity or otherwise, according to the
terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to
the date upon which a payment of principal, premium, if any, or interest on said
Note is due and payable, whether Qwest Capital Funding, Inc. (the "Company") has
available the funds to make such payment as the same shall become due and
payable. In case of the failure of the Company punctually to pay any such
principal, premium, if any, or interest, 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 or otherwise, and as if such payment were made by
the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable and absolute, irrespective of the validity,
regularity, or enforceability of said Note or the Indenture, dated as of June
29, 1998, as amended, modified or supplemented from time to time (as so amended,
modified or supplemented, the "Indenture"), by and among the Company, the
Guarantor (as successor to U S WEST, Inc.) and Bank One Trust Company, National
Association, as trustee (hereinafter referred to as the "Trustee"), the absence
of any action to enforce the same, any waiver or consent by the holder of said
Note with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Note or indebtedness evidenced thereby
and all demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations contained in said
Note and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Note against the Company in respect to any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the holders of all of the Notes then
outstanding, be entitled to enforce or to receive any payments arising out of or
based upon such right of subrogation until the principal, premium, if any, and
interest on all Notes of the Company known as "[____]% Notes due [__________,
20__]" shall have been paid in full or payment thereof shall have been provided
for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following
any payment of principal, premium, if any, or interest by the Company on the
Notes to the holders of the Notes it is determined by a final decision of a
court of competent jurisdiction that such payment shall be avoided by a trustee
in bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such holder to such trustee in
bankruptcy, then and to
8
the extent of such repayment the obligations of the Guarantor hereunder shall
remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Note until the certificate of authentication of such Note
shall have been signed by the Trustee or on its behalf by the Trustee's
authenticating agent.
This Guarantee shall be governed by the laws of the State of New York.
9
IN WITNESS WHEREOF, Qwest Communications International Inc. has caused
this Guarantee to be signed in its corporate name by the signature of two of its
officers thereunto duly authorized and has caused its corporate seal to be
affixed hereunto.
QWEST COMMUNICATIONS INTERNATIONAL INC.
By:
---------------------------------------
Name:
Title:
(SEAL)
By:
---------------------------------------
Name:
Title:
10
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
---------------------------------------------------------------------------
Please insert social security number or other identifying number of assignee:
--------------------------------------
Please print or type name and address (including zip code) of assignee:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________ attorney to transfer said Note of Qwest Capital
Funding, Inc. on the books of Qwest Capital Funding, Inc., with full power of
substitution in the premises.
--------------------------------------
Dated:
-------------------------------
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of this Note in every particular without alteration or
enlargement or any change whatsoever.
11
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
This certificate relates to $_________ principal amount of Notes held
in (check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
: has requested the Trustee by written order to deliver in exchange
for its beneficial interest in the Note held by the Depository a Note or Notes
in definitive, registered form of authorized denominations and an aggregate
principal amount equal to its beneficial interest in such Note (or the portion
thereof indicated above); or
: has requested the Trustee by written order to exchange or register
the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
: (1) to the Company; or
: (2) pursuant to an effective registration statement under the
Securities Act; or
: (3) inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that such transfer is being made in reliance on Rule 144A, in each case
pursuant to and in compliance with Rule 144A under the Securities Act; or
: (4) outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in compliance with Rule 904
under the Securities Act; or
: (5) pursuant to another available exemption from registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (4) or (5) is
checked, the Trustee may require, prior to registering any such transfer of the
Notes, such legal opinions, certifications and other information as the Company
and the Trustee has reasonably requested to confirm that such transfer is being
made
12
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
Date:
------------ ------------------------------------
SIGNATURE OR SIGNATURE GUARANTEE:
NOTICE: Signature must be guaranteed
by a participant in a recognized
signature guaranty medallion program
or other signature guarantor
acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing the Notes
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company and the
Guarantor as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
----------------
------------------------------
NOTICE: To be executed by an executive officer
13
PROVISIONS RELATING TO FORM, TRANSFER AND EXCHANGE OF NOTES
SECTION 1. DEFINITIONS
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Note or beneficial interest therein,
the rules and procedures of the Depositary for such Global Note, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Corporation" means Qwest Capital Funding, Inc.
"Definitive Note" means a certificated Note (bearing the Restricted
Notes Legend if the transfer of such Note is restricted by applicable law) that
does not include the Global Notes Legend.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Euroclear" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System or any successor securities clearing agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Notes Legend" means the legend set forth under that caption in
Exhibits A and B to the Officers' Certificate to which this Appendix A is
attached.
"Initial Notes" means the Notes originally issued on the date hereof.
"Initial Purchasers" means the several initial purchasers named in
Schedule I to the Purchaser Agreement.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Purchase Agreement" means the Purchase Agreement dated July 25, 2001,
among the Corporation and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Notes" means all Initial Notes offered and sold outside
the United States in reliance on Regulation S.
"Restricted Period", with respect to any Notes, means the period of 40
consecutive days beginning on and including the later of (i) the day on which
such Notes are first offered to persons other than distributors (as defined in
Regulation S under the Securities Act) in reliance on Regulation S and (ii) the
date on which the Notes are originally issued.
"Restricted Notes Legend" means the legend set forth in Section
2.2(e)(i) herein.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means all Initial Notes offered and sold to QIBs in
reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Note (as appointed by the Depositary) or any successor person thereto, who shall
initially be the Trustee.
"Transfer Restricted Notes" means Definitive Notes and any other Notes
that bear or are required to bear the Restricted Notes Legend.
1.2 Other Definitions
<Table>
<Caption>
Term: Defined In Section:
----- ------------------
"Agent Members".......................................................2.1(b)
"Global Note".........................................................2.1(a)
"Regulation S Global Note"............................................2.1(a)
"Rule 144A Global Note"...............................................2.1(a)
</Table>
1.3 Terms Defined Elsewhere
Capitalized terms used herein and not otherwise defined herein shall
have the meanings specified in the Officers' Certificate to which this Appendix
A is attached or in the Indenture.
SECTION 2. THE NOTES
2.1 Form and Dating
The Initial Notes will be (i) offered and sold by the Corporation
pursuant to the Purchase Agreement and (ii) resold, initially, only to (A) QIBs
in reliance on Rule 144A and (B) Persons other than U.S. Persons (as defined in
Regulation S) in reliance on Regulation S. Such Initial Notes may thereafter be
transferred to, among others, QIBs and purchasers in reliance on Regulation S.
(a) Global Notes. Rule 144A Notes shall be issued initially in the form
of one or more permanent global Notes in definitive, fully registered form
(collectively, the "Rule 144A Global Note") and Regulation S Notes shall be
issued initially in the form of one or more global Notes (collectively, the
"Regulation S Global Note"), in each case without interest coupons and bearing
the Global Notes Legend and Restricted Notes Legend, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Securities
Custodian, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Corporation and authenticated by the Trustee as
provided in the Indenture. Beneficial ownership interests in the Regulation S
Global Note shall not be exchangeable for interests in the Rule 144A Global Note
or any other Note without a Restricted Notes Legend until the expiration of the
Restricted Period. The Rule 144A Global Note and the Regulation S Global Note
are each referred to herein as a "Global Note" and are collectively referred to
herein as "Global Notes." The aggregate principal amount of the Global Notes may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee as hereinafter provided.
(b) Book Entry Provisions. This Section 2.1(b) shall apply only to a
Global Note deposited with or on behalf of the Depositary.
The Corporation shall execute and the Trustee shall, in accordance with
Section 2.03 of the Indenture and this Section 2.1(b) and pursuant to a Company
Order, authenticate and deliver initially one or more Global Notes that (a)
shall be registered in the name of the Depositary for such Global Note or Global
Notes or the nominee of such Depositary and (b) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions or held
by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under the Indenture with respect to any Global Note held on their
behalf by the Depositary or by the Trustee as Securities Custodian or under such
Global Note, and the Depositary may be treated by the Corporation, the Trustee
and any agent of the Corporation or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Corporation, the Trustee or any agent of the
Corporation or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(c) Definitive Notes. Except as provided in Section 2.2 or 2.3, owners
of beneficial interests in Global Notes will not be entitled to receive physical
delivery of certificated Notes.
2.2 Transfer and Exchange
(a) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented to the Registrar with a request:
(x) to register the transfer of such Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal amount of
Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Notes surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Corporation and the Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing;
and
(ii) are accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Notes are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
the form set forth on the reverse side of the Note);
(B) if such Definitive Notes are being transferred to the
Corporation, a certification to that effect (in the form set forth on
the reverse side of the Note); or
(C) if such Definitive Notes are being transferred pursuant to
an exemption from registration in accordance with Rule 144 under the
Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (i) a certification to
that effect (in the form set forth on the reverse side of the Note) and
(ii) if the Corporation so requests, an opinion of counsel or other
evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section 2.2(e)(i).
(b) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Corporation and the Registrar, together with:
(i) certification (in the form set forth on the reverse side of the
Initial Note) that such Definitive Note is being transferred (A) to a QIB in
accordance with Rule 144A or (B) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with Rule 904
under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records with
respect to such Global Note to reflect an increase in the aggregate principal
amount of the Notes represented by the Global Note, such instructions to contain
information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the
Depositary and the Securities Custodian, the aggregate principal amount of Notes
represented by the Global Note to be increased by the aggregate principal amount
of the Definitive Note to be exchanged and shall credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the Global Note equal to the principal amount of the Definitive Note
so canceled. If no Global Notes are then outstanding and the Global Note has not
been previously exchanged for certificated Notes pursuant to Section 2.3, the
Corporation shall issue and the Trustee shall authenticate, upon written order
of the Corporation in the form of an Officers' Certificate, a new Global Note in
the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. (i) The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with the Indenture and this Appendix A
(including applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depositary therefor. A transferor of a beneficial interest in
a Global Note shall deliver a written order given in accordance with the
Depositary's procedures containing information regarding the participant account
of the Depositary to be credited with a beneficial interest in such Global Note
or another Global Note and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Note and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Note being transferred. Transfers by an
owner of a beneficial interest in the Rule 144A Global Note to a transferee who
takes delivery of such interest through the Regulation S Global Note, whether
before or after the expiration of the Restricted Period, shall be made only upon
receipt by the Trustee of a certification from the transferor to the effect that
such transfer is being made in accordance with Regulation S or (if available)
Rule 144 under the Securities Act and that, if such transfer is being made prior
to the expiration of the Restricted Period, the interest transferred shall be
held immediately thereafter through Euroclear or Clearstream.
(ii) If the proposed transfer is a transfer of a beneficial interest in
one Global Note to a beneficial interest in another Global Note, the Registrar
shall reflect on its books and records the date and an increase in the principal
amount of the Global Note to which such interest is being transferred in an
amount equal to the principal amount of the interest to be so transferred, and
the Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Note from which such
interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other
than the provisions set forth in Section 2.3), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(d) Restrictions on Transfer of Regulation S Global Note. (i) Prior to
the expiration of the Restricted Period, interests in the Regulation S Global
Note may only be held through Euroclear or Clearstream. During the Restricted
Period, beneficial ownership interests in the Regulation S Global Note may only
be sold, pledged or transferred through Euroclear or Clearstream in accordance
with the Applicable Procedures and only (A) to the Corporation, (B) so long as
such security is eligible for resale pursuant to Rule 144A, to a person whom the
selling holder reasonably believes is a QIB that purchases for its own account
or for the account
of a QIB to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, (C) in an offshore transaction in accordance with
Regulation S, (D) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under the Securities Act or
(E) pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any state of the
United States. Prior to the expiration of the Restricted Period, transfers by an
owner of a beneficial interest in the Regulation S Global Note to a transferee
who takes delivery of such interest through the Rule 144A Global Note shall be
made only in accordance with Applicable Procedures and upon receipt by the
Trustee of a written certification from the transferor of the beneficial
interest in the form provided on the reverse of the Initial Note to the effect
that such transfer is being made to a person whom the transferor reasonably
believes is a QIB within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A. Such written certification shall no longer be
required after the expiration of the Restricted Period.
(ii) Upon the expiration of the Restricted Period, beneficial ownership
interests in the Regulation S Global Note shall be transferable in accordance
with applicable law and the other terms of the Indenture and this Appendix A.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii) or (iii), each
Note certificate evidencing the Global Notes and the Definitive Notes (and all
Notes issued in exchange therefor or in substitution thereof) shall bear a
legend in substantially the following form (each defined term in the legend
being defined as such for purposes of the legend only):
"THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT
AMONG THE COMPANY, QWEST COMMUNICATIONS INTERNATIONAL INC., AND THE
INITIAL PURCHASERS NAMED THEREIN, DATED JULY 30, 2001 (THE
"REGISTRATION RIGHTS AGREEMENT"). THE COMPANY WILL PROVIDE A COPY OF
THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER THIS NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS NOTE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S (AS DEFINED
BELOW) RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
Each Regulation S Note shall bear the following additional legend:
THE HOLDER OF THIS NOTE BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND WARRANTS THAT IF IT IS A PURCHASER IN A SALE THAT OCCURS OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S OF THE SECURITIES
ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF THE "40-DAY DISTRIBUTION
COMPLIANCE PERIOD" WITHIN THE MEANING OF RULE 903 OF REGULATION S, ANY
OFFER OR SALE OF THIS NOTE SHALL NOT BE MADE BY IT TO A U.S. PERSON TO
FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN THE MEANING OF RULE
902(o) UNDER THE SECURITIES ACT."
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Note for a Definitive Note that does not bear the legends
set forth above and rescind any restriction on the transfer of such Transfer
Restricted Note if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Note).
(iii) Upon a sale or transfer after the expiration of the Restricted
Period of any Note acquired pursuant to Regulation S, all requirements that such
Note bear the Restricted Notes Legend shall cease to apply and the requirements
requiring any such Note be issued in global form shall continue to apply.
(f) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred, redeemed, repurchased or cancelled, such Global Note shall
be returned by the Depositary to the Trustee for cancellation or retained and
cancelled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for Definitive Notes,
transferred in exchange for an interest in another Global Note, redeemed,
repurchased or cancelled, the principal amount of Notes represented by such
Global Note shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the Securities Custodian for such Global
Note) with respect to such Global Note, by the Trustee or the Securities
Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the Corporation
shall execute and the Trustee shall authenticate, Definitive Notes and Global
Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Corporation may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith.
(iii) Prior to the due presentation for registration of transfer of any
Note, the Corporation, the Trustee, the Paying Agent or the Registrar may deem
and treat the person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Corporation, the Trustee, the Paying Agent or the
Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant to the
terms of the Indenture and this Appendix A shall evidence the same debt and
shall be entitled to the same benefits under the Indenture as the Notes
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depositary or any other Person with respect to the accuracy of the records of
the Depository or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption or repurchase) or
the payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders
under the Notes shall be given or made only to the registered Holders (which
shall be the Depositary or its nominee in the case of a Global Note).
The rights of beneficial owners in any Global Note shall be exercised only
through the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may conclusively rely and shall be fully protected in
relying upon information furnished by the Depositary with respect to its
members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under the
Indenture or this Appendix A or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of the Indenture and this Appendix A, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
2.3 Definitive Notes
(a) A Global Note deposited with the Depositary or with the Trustee as
Securities Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of Definitive Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.2 and (i)
the Depositary notifies the Corporation that it is unwilling or unable to
continue as a Depositary for such Global Note or if at any time the Depositary
ceases to be a "clearing agency" registered under the Exchange Act, and a
successor depositary is not appointed by the Corporation within 90 days of such
notice, or (ii) an Event of Default has occurred and is continuing or (iii) the
Corporation, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Notes under the Indenture and this
Appendix A.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section 2.3 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal
amount of Definitive Notes of authorized denominations. Any portion of a Global
Note transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any certificated
Initial Note in the form of a Definitive Note delivered in exchange for an
interest in the Global Note shall, except as otherwise provided by Section
2.2(e), bear the Restricted Notes Legend.
(c) Subject to the provisions of Section 2.3(b), the registered Holder
of a Global Note may grant proxies and otherwise authorize any person, including
Agent members and persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under the Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in
Section 2.3(a)(i), (ii) or (iii), the Corporation will promptly make available
to the Trustee a reasonable supply of Definitive Notes in fully registered form
without interest coupons.