EXHIBIT 1-A
U S WEST CAPITAL FUNDING, INC.
DEBT SECURITIES
UNCONDITIONALLY GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST, BY
U S WEST, INC.
UNDERWRITING AGREEMENT
_________, ____
To the Underwriters Named in Schedule II hereto
c/o the Representatives Named in Schedule I hereto
of the Underwriters Named in Schedule II hereto
Dear Sirs:
1. INTRODUCTORY. U S WEST Capital Funding, Inc., a Colorado corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statements referred to in
Section 2(a) (the "Debt Securities"). The Debt Securities will be
unconditionally guaranteed as to payment of principal, premium, if any, and
interest by U S WEST, Inc., a Delaware corporation (the "Guarantor"), and will
be issued under an Indenture, dated as of ________________ ___, 1998 (the
"Indenture"), among the Company, the Guarantor and The First National Bank of
Chicago, as Trustee (the "Trustee"), in one or more series which series may vary
as to interest rates, maturities, redemption provisions and selling prices and
any other variable terms permitted by the Indenture, with all such terms for any
particular series being determined at the time of sale. The Company proposes to
sell to the Underwriters (as hereinafter defined) one or more series of Debt
Securities, each of the designation, with the terms and in the aggregate
principal amount specified in Schedule I hereto (the "Securities"). Subject to
the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and on the other terms set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite its
name in Schedule II hereto.
If there shall be two or more persons, firms or corporations named as
underwriters in Schedule II hereto, the term "Underwriters" as used herein shall
be deemed to mean the several persons, firms or corporations so named (including
the Representatives hereinafter mentioned, if so named, and any Underwriters
substituted pursuant to Section 12), and the term "Representatives" as so used
herein shall be deemed to mean the representative or representatives named in
Schedule I hereto. If there shall only be one person, firm or corporation named
in Schedule II hereto, the term "Underwriters" and the term "Representatives" as
used herein shall mean such person, firm or corporation.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTOR. The
Company and the Guarantor represent and warrant to, and agree with, the several
Underwriters that as of the date hereof and as of the applicable Delivery Date
(each referred to as a "Representation Date"):
(a) The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") joint registration statements (Nos.
33-_____ and 33-_____) relating to the Debt Securities and the guarantees
thereof of the Guarantor (the "Guarantees") and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933,
as amended (the "Act"), and has filed such amendments thereto as may have
been required to the date hereof. Such registration statements have been
declared effective by the Commission. Such registration statements, as
amended or supplemented to the date
hereof (including the documents incorporated by reference therein), are
hereinafter collectively referred to as the "Registration Statement", and
the prospectus constituting a part of such Registration Statement, as
amended and as supplemented as contemplated by Section 4 to reflect the
terms of the Securities and the terms of the offering thereof, including
all material incorporated by reference therein, is hereinafter referred to
as the "Prospectus".
(b) On the effective date of the Registration Statement, such
Registration Statement (including the documents incorporated by reference
therein) conformed in all respects to the requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations (the "Rules and Regulations") of the Commission and
did not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on each Representation Date, the
Registration Statement and the Prospectus conforms or will conform in all
respects to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations and (i) the Registration Statement, as amended as of
any such time, does not or will not include any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (ii)
the Prospectus, as supplemented as of any such time, does not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the foregoing does not apply to statements in or omissions from
any such documents based upon written information furnished to the Company
or the Guarantor by any Underwriter, or on behalf of any Underwriter by the
Representatives, specifically for use therein or based upon the Statement
of Eligibility of the Trustee under the Indenture or to statements in or
omissions from such Statement of Eligibility.
3. PURCHASE AND OFFERING. Delivery of and payment for the Securities
shall be made at such address, date and time as may be specified in Schedule I
hereto. Such date and time are sometimes referred to herein as the "Delivery
Date". On the Delivery Date, the Company shall deliver the Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price either by certified or official
bank check or checks payable in New York Clearing House or similar next-day
funds or by wire transfer of immediately available funds, as specified in
Schedule I. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Securities shall be in
registered form and in such authorized denominations and registered in such
names as the Representatives shall request in writing not less than one full
business day prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the Securities, the Company shall make the Securities
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
Schedule I may set forth additional conditions concerning the purchase or
offering of the Securities, if any.
4. COVENANTS OF THE COMPANY AND THE GUARANTOR. The Company and the
Guarantor covenant and agree with the several Underwriters that they will
furnish such firm which shall be acting as counsel for the Underwriters
("Underwriters' Counsel"), one signed copy of the Registration Statement,
including all exhibits, relating to the Debt Securities in the form in which it
became effective and of all amendments thereto and will furnish to the
Representatives copies of the Registration Statement, including all exhibits and
amendments thereto, and that, in connection with each offering of Securities:
(a) The Company and the Guarantor will promptly prepare a supplement
to the Prospectus to reflect the terms of the Securities and the terms of
the offering thereof and will advise the Representatives promptly of any
other amendment or supplementation of the Registration Statement or the
Prospectus and will not effect any amendment or supplementation without the
consent of the Representatives, which consent shall not be unreasonably
withheld; the Company and the Guarantor will also advise the
Representatives of any request made by the Commission for any amendment to
the Registration Statement or Prospectus or for additional information with
respect thereto and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement, and will use their
best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued. The Company will not file any
document pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which is deemed to be incorporated by reference in the
Prospectus unless Underwriters' Counsel shall have been previously advised
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend or supplement the Registration Statement or the Prospectus to
comply with the Act, the Company and the Guarantor promptly will prepare
and file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance.
(c) The Guarantor and, to the extent separately required pursuant to
Rule 158 under the Act, the Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158) covering a twelve-month period
beginning not later than the first day of the fiscal quarter of the
Guarantor and the Company next following the effective date of the
Registration Statement (as defined in Rule 158) with respect to each sale
of Securities.
(d) The Company and the Guarantor will furnish to the Representatives
copies of each preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(e) The Company and the Guarantor will use their best efforts to
arrange for the qualification of the Securities for sale and the
determination of their eligibility for investment under the laws of such
jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution.
(f) During the period of five years after the effective date of the
Registration Statement, the Guarantor will furnish to the Representatives
and, upon request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of its annual report
to shareholders for such year, and the Guarantor will furnish to the
Representatives and to Underwriters' Counsel, (i) as soon as available, a
copy of each report of the Guarantor filed with the Commission under the
Exchange Act or mailed to stockholders, and (ii) from time to time, such
other information concerning the Guarantor or the Company as the
Representatives may reasonably request.
(g) The Company and the Guarantor will pay all expenses incident to
the performance of their obligations under this Agreement, any expenses
(including fees and disbursements of counsel) incurred in connection with
qualifications of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Representatives designate and the printing of memoranda relating thereto,
any fees charged by investment rating agencies for the rating of the
Securities, all expenses incurred in delivering copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, to the Underwriters, and the fees and
expenses, if any, incurred in
connection with the listing of the Securities on the New York Stock
Exchange or any other national securities exchange.
(h) Neither the Company nor the Guarantor will, without the prior
consent of the Representatives, offer or sell any of its debt securities
having a maturity of more than one year between the commencement of an
offering of Securities and the related Delivery Date.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the representations and warranties on the part of the Company
and the Guarantor contained herein, to the accuracy of the statements of the
officers of the Company and the Guarantor made pursuant to the provisions
hereof, to the performance by the Company and the Guarantor of their obligations
hereunder and to the following additional conditions precedent:
(a) On the date of this Agreement and on the Delivery Date, the
Representatives shall have received executed copies of letters of Arthur
Andersen LLP, and addressed to the Company, the Guarantor and the
Representatives, substantially in the forms previously approved by the
Representatives.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company, the Guarantor or
any Underwriter, shall be contemplated by the Commission.
(c) The Representatives shall have received an opinion or opinions,
dated the Delivery Date, of Weil, Gotshal & Manges, counsel for the Company
and the Guarantor, to the effect that:
(i) The Company is a corporation in good standing, duly
incorporated and validly existing under the laws of the State of Colorado
and is authorized by its Articles of Incorporation to transact the business
in which it is engaged, as set forth in the Prospectus.
(ii) The Guarantor is a corporation in good standing, duly
incorporated and validly existing under the laws of the state of its
incorporation and is authorized by its Certificate of Incorporation to
transact the business in which it is engaged, as set forth in the
Prospectus.
(iii) The execution, delivery and performance of the Indenture by
the Company and the Guarantor have been duly authorized by all necessary
corporate action on the part of the Company and the Guarantor; the
Indenture has been duly and validly executed and delivered by the Company
and the Guarantor and (assuming the due authorization, execution and
delivery by the Trustee), constitutes the legal, valid and binding
agreement of the Company and the Guarantor enforceable against each of them
in accordance with its terms; and the Indenture has been duly qualified
under the Trust Indenture Act.
(iv) The Securities, when duly executed and authenticated
pursuant to the Indenture and delivered to the Underwriters against payment
therefor in accordance with the provisions hereof, will constitute legal,
valid and binding obligations of the Company, entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
terms.
(v) The Guarantees, when duly executed pursuant to the Indenture
and delivered to the Underwriters in accordance with the provisions hereof,
will constitute legal, valid and binding obligations of the Guarantor
enforceable against the Guarantor in accordance with their terms.
(vi) The execution, delivery and performance of this Agreement by
the Company and the Guarantor have been duly authorized by all necessary
corporate action on the part of the Company and the Guarantor; and this
Agreement has been duly and validly executed and delivered by each of the
Company and the Guarantor.
(vii) No consent, approval, authorization or other action by, or
filing or registration with, any federal governmental authority is required
in connection with the execution and delivery by the Company or the
Guarantor of the Indenture or the issuance and sale of the Securities and
the Guarantees to the Underwriters pursuant to the terms of this Agreement,
except such as have been obtained or made under the Act and the rules and
regulations thereunder and such as may be required under the Exchange Act
and the rules and regulations thereunder.
(viii) The Registration Statement was declared effective under the
Act and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act
and no proceeding for that purpose has been initiated or threatened by the
Commission.
(ix) The statements in the Prospectus under the headings
"Description of Debt Securities and Guarantees" and "Description of the
[Debentures][Notes]", insofar as such statements constitute a summary of
certain provisions of the documents referred to therein, are accurate in
all material respects.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and the Guarantor and of public
officials. Such counsel may also rely as to matters of Colorado law upon
the opinion referred to in Section 5(e) without independent verification.
In addition, such counsel shall state that it has participated in
conferences with representatives of the Company, the Guarantor and with the
Representatives and their counsel, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed; such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus and the limitations inherent in the examination
made by such counsel and the nature and extent of such counsel's
participation in such conferences are such that such counsel is unable to
assume, and does not assume, any responsibility for the accuracy,
completeness or fairness of such statements; however, based upon such
counsel's participation in the aforesaid conferences, nothing has come to
its attention which lead it to believe that the Registration Statement, at
the time it became effective, and the Prospectus and any further amendments
and supplements thereto made by the Company and the Guarantor prior to such
Delivery Date (other than the financial statements and other financial and
statistical information contained therein as to which such counsel need
express no belief) did not comply as to form in all material respects with
the applicable requirements of the Act and the rules and regulations
thereunder or that the Registration Statement (except as to the financial
statements and the notes thereto, and the other financial and statistical
data included therein, as to which such counsel need express no belief),
and each amendment thereto, as of its effective date or if an annual report
on Form 10-K has been filed by the Guarantor with the Commission subsequent
to the effectiveness of the Registration Statement, then at the time of the
most recent such filing, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of its
issue dat or at the Delivery Date, the Prospectus (except as to the
financial statements and the notes thereto, and the other financial and
statistical data included therein, as to which such counsel need express no
belief), and each amendment or supplement thereto contained or contains any
untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion may state that it does not address the impact on the
opinions contained therein of any litigation or ruling relating to the
divestiture by American Telephone and Telegraph Company of ownership of its
operating telephone companies (the "Divestiture").
(d) The Representatives shall have received from Underwriters'
Counsel an opinion, dated the Delivery Date, to the effect specified in
clauses (i), (ii), (iii), (iv), (v), (vi), (viii) and (ix) and the
penultimate paragraph of subsection (c) above, subject to the final
paragraph of subsection (c) above, and with respect to such other matters
as the Representatives may reasonable request. In rendering such
opinion, such counsel may rely as to matters of Colorado law upon the
opinion referred to in Section 5(e) without independent verification.
(e) The Representatives shall have received an opinion or opinions,
dated the Delivery Date, of the General Counsel of the Company or a Senior
Attorney of the Guarantor, to the effect that:
(i) The Company is a corporation in good standing, duly incorporated
and validly existing under the laws of the State of Colorado and is
authorized by its Articles of Incorporation to transact the business in
which it is engaged, as set forth in the Prospectus.
(ii) The Guarantor is a corporation in good standing, duly
incorporated and validly existing under the laws of the state of its
incorporation and is authorized by its Certificate of Incorporation to
transact the business in which it is engaged, as set forth in the
Prospectus.
(iii) The execution, delivery and performance of the Indenture by the
Company and the Guarantor have been duly authorized by all necessary
corporate action on the part of the Company and the Guarantor; the
Indenture has been duly and validly executed and delivered by the Company
and the Guarantor and (assuming the due authorization, execution and
delivery by the Trustee), constitutes the legal, valid and binding
agreement of the Company and the Guarantor enforceable against each of them
in accordance with its terms; and the Indenture has been duly qualified
under the Trust Indenture Act.
(iv) The Securities, when duly executed and authenticated pursuant to
the Indenture and delivered to the Underwriters against payment therefor in
accordance with the provisions hereof, will constitute legal, valid and
binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms.
(v) The Guarantees, when duly executed pursuant to the Indenture and
delivered to the Underwriters in accordance with the provisions hereof,
will constitute legal, valid and binding obligations of the Guarantor
enforceable against the Guarantor in accordance with their terms.
(vi) The execution, delivery and performance of this Agreement by the
Company and the Guarantor have been duly authorized by all necessary
corporate action on the part of the Company and the Guarantor; and this
Agreement has been duly and validly executed and delivered by each of the
Company and the Guarantor.
(vii) All state regulatory consents, approvals, authorizations or
other orders (except as to the state securities or Blue Sky laws, as to
which such counsel need express no opinion) legally required for the
execution of the Indenture and the issuance and sale of the Securities and
the Guarantees to the Underwriters pursuant to the terms of this Agreement
have been obtained; provided that such counsel may rely on opinions of
local counsel satisfactory to said counsel.
(viii) The enforceability and the legal, valid and binding nature of
the respective agreements and obligations of the Company and the Guarantor
set forth in the Indenture, the Securities and the Guarantees (the
"Agreements") are not affected by, and the performance of the obligations
set forth in such Agreements, the issuance and sale of the Securities and
the Guarantees and the consummation of the transactions contemplated in
such Agreements are not prevented or restricted by, any action, suit,
proceeding, order or ruling relating to or issued or arising as a result
of, the Divestiture.
In rendering such opinion, such counsel may rely as to matters of New York
law upon the opinion referred to in Section 5(c) without independent
verification.
(f) The Representatives shall have received a certificate, dated the
Delivery Date, of the President or any Vice President of the Company in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, the representations and warranties of the Company
in this Agreement are true
and correct as if made at and as of the Delivery Date, that the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Delivery Date, that no
stop order suspending the effectiveness of the Registration Statement is in
effect and no proceedings for that purpose are pending or are contemplated
by the Commission and that, subsequent to the date of the Prospectus, there
has been no material adverse change in the financial position or results of
operations of the Company, except as set forth in or contemplated by the
Prospectus.
(g) The Representatives shall have received a certificate, dated the
Delivery Date, of the President or any Vice President of the Guarantor in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, the representations and warranties of the
Guarantor in this Agreement are true and correct as if made at and as of
the Delivery Date, that the Guarantor has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Delivery Date, that no stop order suspending the
effectiveness of the Registration Statement is in effect and no proceedings
for that purpose are pending or are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has been no
material adverse change in the financial position or results of operations
of the Guarantor and its subsidiaries, taken as a whole, except as set
forth in or contemplated by the Prospectus.
(h) If the Prospectus contains a discussion of United States federal
income tax considerations with respect to the Securities, the Company shall
have furnished to the Representatives a letter of its United States tax
counsel, dated the Delivery Date, to the effect that (i) the Underwriters
may rely on the opinion of such counsel, filed as an exhibit to the
Registration Statement to the same extent as though it were dated the date
of such letter authorizing reliance, and (ii) such counsel has reviewed the
statements in the Prospectus under the caption "Certain United States
Federal Income Tax Considerations" and, insofar as they are, or refer to,
statements of United States law or legal conclusions, such statements are
accurate in all material respects
The Company and the Guarantor will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and documents as they reasonably
request.
In case any of the conditions specified above in this Section 5 shall not
have been fulfilled, this Agreement may be terminated by the Representatives by
delivering written notice of termination to the Company and the Guarantor. Any
such termination shall be without liability of any party to any other party
except to the extent provided in Sections 4(g), 7 and 8 hereof.
6. CONDITION OF THE OBLIGATIONS OF THE COMPANY AND THE GUARANTOR. The
obligations of the Company and the Guarantor to sell and deliver the Securities
and the Guarantees are subject to the following conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement or the Indenture shall have been issued and no proceedings for
those purposes shall have been instituted or, to the knowledge of the
Company, the Guarantor or any Underwriter, shall be contemplated by the
Commission.
(b) Concurrently with or prior to the delivery of the Securities and
the Guarantees to each Underwriter, the Company shall receive the full
purchase price specified in Schedule I hereto to be paid for the
Securities.
(c) The written information furnished to the Company and the
Guarantor by any Underwriter, or on behalf of any Underwriter by the
Representatives, specifically for use in the Prospectus as contemplated by
Section 2 and Section 7(b) shall be true and accurate in all material
respects.
In case any of the conditions specified above in this Section 6 shall not
have been fulfilled, this Agreement may be terminated by the Company or the
Guarantor by delivering written notice of termination to the Representatives.
Any such termination shall be without liability of any party to any other party
except to the extent provided in Sections 4(g), 7 and 8 hereof.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the Guarantor
jointly and severally will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, as incurred, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and will reimburse each Underwriter, as incurred, for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action or amounts paid in settlement of any litigation or
investigation or proceeding related thereto if such settlement is effected with
the written consent of the Company and the Guarantor; provided, however, that
the Company and the Guarantor will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in any of such documents in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by any Underwriter, or on
behalf of any Underwriter by the Representatives, specifically for use therein
or in reliance upon and in conformity with the Statement of Eligibility of the
Trustee under the Indenture; and provided, further, that with respect to any
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus or preliminary prospectus suppleent, the indemnity
agreement contained in this paragraph (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
a copy of the Prospectus (excluding material incorporated therein by reference)
was not sent or given to such person and such Prospectus corrected any such
untrue statement or omission or alleged untrue statement or omission.
(a) Each Underwriter will indemnify and hold harmless the Company and the
Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, as incurred, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or the Guarantor by
such Underwriter, or on behalf of such Underwriter by the Representatives,
specifically for use therein, and will reimburse the Company and the Guarantor,
as incurred, for any legal or other expenses reasonably incurred by the Company
and the Guarantor in connection with investigating or defending any such loss,
claim, damage, liability or action.
(b) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party or parties shall not be liable
under this Agreement with respect to any settlement made by any indemnified
party or parties without prior written consent by the indemnifying party or
parties to such settlement.
(c) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantor on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Guarantor on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Guarantor on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Guarantor or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred b such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (with the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(d) The obligations of the Company and the Guarantor under this Section 7
shall be in addition to any liability which the Company or the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act or
the Exchange Act; and the obligations of the Underwriters under this Section 7
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company and the Guarantor, to each officer of the Company or the
Guarantor who has signed the Registration Statement and to each person, if any,
who controls the Company or the Guarantor within the meaning of the Act or the
Exchange Act.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantor or their officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or the Guarantor or of any
of their officers or directors or any controlling person, and will survive
delivery of and payment for the Securities. If the purchase of the Securities
by the Underwriters is not consummated for any reason other than a default by
one or more of the Underwriters, the Company and the Guarantor shall remain
responsible for the expenses to be paid or reimbursed by them pursuant to
Section 4(g), the respective obligations of the Company, the Guarantor and the
Underwriters pursuant to Section 7 shall remain in effect, and the Company and
the Guarantor will reimburse the Representatives for the reasonable
out-of-pocket expenses of the Underwriters, not exceeding $75,000, and for the
fees and disbursements of Underwriters' Counsel, the Underwriters agreeing to
pay such expenses, fees and disbursements in any other event. In no event will
the Company or the Guarantor be liable to any of the Underwriters for damages on
account of loss of anticipated profits.
9. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters will be mailed, delivered or telecopied and confirmed to the
Representatives at their addresses specified in Schedule I hereto for the
purpose of communications hereunder or, if sent to the Company or the Guarantor,
will be mailed, delivered
or telecopied and confirmed to each of them at 7800 East Orchard Road,
Englewood, Colorado 80111, Attention: Treasurer.
10. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
11. CONCERNING LAW. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
12. DEFAULT BY UNDERWRITERS. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Securities set forth in Schedule II
hereto to be purchased by each remaining non-defaulting Underwriter set forth
therein bears to the aggregate principal amount of Securities set forth therein
to be purchased by all the remaining non-defaulting Underwriters; provided that
the remaining non-defaulting Underwriters shall not be obligated to purchase any
amount of Securities if the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
one-tenth of the total principal amount of Securities, and any remaining
non-defaulting Underwriter shall not be obligated to purchase additional
Securities in an amount of more than one-ninth of the principal amount of
Securities set forth in Schedule II hereto to be purchased by it. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Guarantor, except that the Company and the Guarantor will continue to be
liable for the payment of expenses as set forth in Sections 4(g) and 8 hereof.
Nothing contained in this Section 12 shall relieve a defaulting Underwriter
of any liability it may have to the Company or the Guarantor for damages caused
by its default. If other underwriters are obligated or agree to purchase the
Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or Underwriters' Counsel may be necessary in the Registration
Statement, any prospectus or in any other document or arrangement.
13. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company and
the Guarantor prior to delivery of and payment for the Securities, if prior to
such time (i) there has been, since the respective dates as of which information
is given in the Registration Statement, any change in the financial condition of
the Company or of the Guarantor and its subsidiaries, taken as a whole, or in
the earnings, affairs or business prospects of the Company or of the Guarantor
and its subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, the effect of which is, in the judgment of the
Representatives, so material and adverse as to make it impracticable to market
the Securities or enforce contracts for the sale thereof, (ii) trading in the
Company's or the Guarantor's securities shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iii) a banking moratorium
shall have been declared either by federal or New York State authorities, (iv)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or enforce contracts for the sale
thereof, or (v) any rating of any debt securities of the Company or of the
Guarantor shall have been lowered by Moody's Investors Services, Inc.
("Moody's") or Standard & Poor's Ratings Group ("S&P") or either Moody's or S&P
shall have publicly announced that it has any such debt securities under
consideration for possible downgrade.
14. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Company, the Guarantor and the Underwriters
in accordance with its terms.
Very truly yours,
U S WEST CAPITAL FUNDING, INC.
BY
--------------------------------
Name:
Title:
U S WEST, INC.
BY
--------------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
[Names of Representatives]
as Representatives of the other several
Underwriters named in Schedule II hereto.
By: [Name]
- ----------------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement dated _________, ____
Registration Statement Nos. 33-_____ and 33-_____
Representatives and Addresses:
[Names and Addresses]
Securities:
Designation: __% [Debentures][Notes] Due _________, ____.
Principal Amount: $___________
Indenture dated as of ______________ ___, 1998, as amended, among U S WEST
Capital Funding, Inc., U S WEST, Inc. and The First National Bank of
Chicago, as Trustee.
Date of Maturity: _________, ____
Interest Rate: __% per annum, payable _______ and _________
of each year, commencing _______, ____.
Price to Public: ______% of the principal amount thereof ($___________),
plus accrued interest, if any, from _________, ____ to
the date of delivery.
Purchase Price: ______% of the principal amount thereof ($___________),
plus accrued interest, if any, from _________, ____ to
the date of delivery.
Form of Payment:
Redemption Provisions:
Form and Authorized
Denominations: Registered--$1,000 and multiples thereof.
Stock Exchange Listing:
Delivery Date, Time _________, ____ at 10:00 A.M., New York time,
and Location: at the office of Brown & Wood, New York, New York.
SCHEDULE II
PRINCIPAL
AMOUNT OF
SECURITIES TO
NAME OF UNDERWRITER BE PURCHASED
------------------- -------------
[ ]......................................................$__,000,000
[ ]...................................................... __,000,000
[ ]...................................................... __,000,000
[ ]...................................................... __,000,000
[ ]...................................................... __,000,000
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Total..................................................$__,000,000
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