Exhibit 1-B
U S WEST CAPITAL FUNDING, INC.
[________NOTES]
DUE [ ] FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
_______ __, 1998
[AGENTS]
Dear Sirs:
U S WEST Capital Funding, Inc., a Colorado corporation (the "Company"),
confirms its agreement with [AGENTS] (each, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its [_____Notes
Due ____ from Date of Issue] (the "Notes"). The Notes are to be issued pursuant
to an indenture, dated as of ______ __1998, as amended, supplemented or modified
from time to time (the "Indenture"), among the Company, U S WEST, Inc., a
Delaware corporation ("U S WEST"), and First National Bank of Chicago, as
trustee (the "Trustee"). The Notes will be unconditionally guaranteed as to
payment of principal, premium, if any, and interest by U S WEST. As of the date
hereof, the Company has authorized the issuance and sale of up to U.S.
$3,500,000,000 aggregate initial offering price (or its equivalent, based upon
the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Company shall designate at the time of issuance) of
Notes to or through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof. The Notes will
have the benefit of a Guarantee (the "Guarantees") between the Company and U S
WEST.
This Agreement provides both for the sale of Notes by the Company to one or
more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent), in which case such Agent
will act as an agent of the Company in soliciting purchases of the Notes.
The Company and U S WEST have filed with the Securities and Exchange
Commission (the "SEC") a joint registration statement on Form S-3 (Registration
Nos. 33-_____, 33-____) for the registration of debt securities, including the
Notes, under the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
SEC and the Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company and U S WEST for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplement and
pricing supplement relating to the Notes, including all documents incorporated
therein by reference, as from time to time amended or supplemented by the filing
of documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents. The Company agrees that it will not, without the consent
of all such Agents, solicit any other agents to purchase Notes or appoint any
other agents to act on its behalf, or to assist it, in the placement of the
Notes; provided, however, the Company expressly reserves the right to enter into
an agreement or agreements substantially identical hereto, upon notice to the
Agents, with such other agent or agents as may approach the Company from time to
time for purposes of selling Notes with specific terms to or through such agent
or agents.
(b) SALE OF NOTES. The Company shall not sell or approve the solicitation
of purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the aggregate initial offering price
of Notes registered pursuant to the Registration Statement. The Agents shall
have no responsibility for maintaining records with respect to the aggregate
initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the Company,
such Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes.
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Such Agent will communicate to the Company, orally, each offer to purchase Notes
solicited by it on an agency basis, other than those offers rejected by such
Agent. Such Agent shall have the right, in its discretion reasonably exercised,
to reject any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Company may accept or reject any proposed purchase of Notes, in whole or in
part. Such Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by it and accepted by the Company. Such Agent shall not have any
liability to the Company in the event that any such purchase is not consummated
for any reason. If the Company shall default on its obligation to deliver Notes
to a purchaser whose offer it has accepted, the Company shall (i) hold such
Agent harmless against any loss, claim or damage arising from or as a result of
such default by the Company and (ii) notwithstanding such default, pay to such
Agent any commission to which it would otherwise be entitled.
(e) RELIANCE. The Company and the Agents agree that any Notes purchased
by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as agent shall be placed by such Agent, in
reliance on the representations, warranties, covenants and agreements of the
Company and U S WEST contained herein and on the terms and conditions and in the
manner provided herein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company and U S WEST, jointly and severally, represent and warrant
to the Agents as of the date hereof, as of the date of each acceptance by the
Company of an offer for the purchase of Notes (whether to one or more Agents as
principal or through an Agent as agent), and as of the date of each delivery of
Notes (whether to one or more Agents as principal or through an Agent as agent)
(the date of each such delivery to one or more Agents as principal being
hereafter referred to as a "Settlement Date") (each of the times referenced
above being referred to herein as a "Representation Date"), as follows:
(i) The Registration Statement, including a prospectus
relating to the debt securities of the Company, has been filed with the SEC
and has become effective.
(ii) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus (including the documents
incorporated by reference therein) conformed in all respects to the
requirements of the 1933 Act, the 1939 Act, and the 1933 Act Regulations
and did not include any untrue statements 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 as of each applicable
Representation Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the 1933 Act, the 1939 Act
and the 1933 Act Regulations and neither of such documents will include 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,
in the light of the
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circumstances under which they were made, not misleading, except that the
foregoing does not apply to statements in or omissions from any such
documents based upon written information furnished to the Company by the
Agents 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.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any director or
officer of the Company or U S WEST and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company or U S WEST, as the case may be, to
such Agent or Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
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3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an Agent and the
Company, Notes shall be purchased by such Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by one or more Agents and the
Company (which terms, unless otherwise agreed, shall, to the extent applicable,
include those terms specified in Exhibit A hereto and be agreed upon orally,
with written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company and U S WEST herein contained and shall be subject to the terms and
conditions herein set forth. Unless the context otherwise requires, references
herein to "this Agreement" shall include the agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto for
a Note of identical maturity. The Agents may engage the services of any other
broker or dealer in connection with the resale of the Notes purchased by them as
principal and may allow any portion of the discount received in connection with
such purchases from the Company to such brokers and dealers. At the time of
each purchase of Notes by one or more Agents as principal, such Agent or Agents
shall specify the requirements for the stand-off agreement, officers'
certificates, opinions of counsel and comfort letter pursuant to Sections 4(h),
8(b), 8(c) and 8(d) hereof.
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. The Agents
are not authorized to appoint sub-agents with respect to Notes sold through them
as agent. All Notes sold through an Agent as agent will be sold at 100% of
their principal amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing at
any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company has advised such
Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of
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Notes. Except as may be otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Company, U S WEST, the Agents and _________, as authenticating and
paying agent (the "Procedures"). The Agents, the Company and U S WEST agree to
perform, and the Company agrees to cause ________ to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
4. COVENANTS OF THE COMPANY AND U S WEST.
The Company and U S WEST covenant with the Agents as follows:
(a) COPIES OF THE REGISTRATION STATEMENT. The Company and U S WEST will
furnish to counsel for the Agents one signed copy of the Registration Statement,
including all exhibits, relating to the Notes in the form it became effective
and of all amendments thereto and will furnish to the Agents copies of the
Registration Statement, including all exhibits, in the form it became effective
and of all amendments thereto.
(b) NOTICE OF CERTAIN PROPOSED FILINGS AND CERTAIN EVENTS. The Company
and U S WEST will advise the Agents promptly of any amendment or supplementation
of the Registration Statement or the Prospectus and will not effect such
amendment or supplementation without the consent of counsel for the Agents; the
Company and U S WEST will also advise the Agents of any official request made by
the SEC for an amendment to the Registration Statement or Prospectus or for
additional information with respect thereto and of the institution by the SEC 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 and U S WEST
will not file any document pursuant to the 1934 Act which is deemed to be
incorporated by reference in the Prospectus unless counsel to the Agents shall
have been previously advised thereof.
(c) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. If, at any time when a
prospectus relating to the Notes is required to be delivered under the 1933 Act,
any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Registration Statement or the
Prospectus to comply with the 1933 Act, the Company and U S WEST will
immediately notify the Agents to cease the solicitation of offers to purchase
the Notes in their capacity as Agent and to cease sales of any Notes the Agents
may then own as principal, and the Company and U S WEST promptly will prepare
and file with the SEC an amendment or supplement which will correct such untrue
statement or omission or effect such compliance.
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(d) EARNINGS STATEMENTS. U S WEST and, to the extent separately required
pursuant to Rule 158 under the Act, the Company will make generally available to
their security holders as soon as practicable, but not later than ninety days
after the close of the period covered thereby, earning 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 U S WEST and the
Company next following the effective date of the Registration Statement (as
defined in Rule 158) with respect to each sale of Notes.
(e) COPIES OF THE PROSPECTUS. The Company and U S WEST will furnish to
the Agents copies of the Prospectus and all amendments and supplements thereto,
in each case as soon as available and in such quantities as are reasonably
requested.
(f) BLUE SKY QUALIFICATIONS. The Company and U S WEST will use their
respective best efforts to arrange for the qualification of the Notes for sale
and the determination of their eligibility for investment under the laws of such
jurisdictions as the Agents designate and will continue such qualifications in
effect so long as required for their distribution.
(g) COPIES OF PUBLIC REPORTS. The Company and U S WEST will furnish to
the Agents, at the earliest time the Company and U S WEST make the same
available to others, a copy of their annual reports and other financial reports
furnished or made available to the public generally.
(h) STAND-OFF AGREEMENT. If specified by the applicable Agent or Agents
in connection with a purchase of Notes as principal, neither the Company nor U S
WEST will, without such Agents prior consent, between the date of any agreement
to purchase such Notes and the Settlement Date with respect to such purchase,
offer to sell any debt securities of the Company or U S WEST having a maturity
of more than one year, except as may otherwise be provided in any such
agreement.
(i) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company or U S WEST with respect to any of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company and U S WEST shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include or incorporate by reference capsule
financial information with respect to the results of operations of the Company
or U S WEST, as the case may be, for the period between the end of the preceding
fiscal year and the end of such quarter or for such fiscal year, as the case may
be, and corresponding information for the comparable period of the preceding
fiscal year, as well as such other information and explanations as shall be
necessary for an understanding of such amounts, or as shall be required by the
1933 Act or the 1933 Act Regulations.
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(j) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company or U
S WEST for the preceding fiscal year, the Company and U S WEST shall cause the
Registration Statement and the Prospectus to be amended, whether by the filing
of documents or otherwise, to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements, or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company and U S WEST shall not
be required to comply with the provisions of subsections (i) or (j) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacities as agents pursuant to
a request from the Company and (ii) no Agent shall then hold any Notes purchased
as principal pursuant hereto, until the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or an Agent shall
subsequently purchase Notes from the Company as principal.
5. CONDITIONS OF AGENTS' OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to solicit
offers to purchase the Notes as agent of the Company, and the obligations of any
purchasers of the Notes sold through an Agent as agent, will be subject to the
accuracy of the representations and warranties on the part of the Company and U
S WEST herein and to the accuracy of the statements of the officers of the
Company and U S WEST made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company and
U S WEST of all covenants and agreements herein contained on their respective
parts to be performed and observed and to the following additional conditions
precedent:
(a) COMPLIANCE WITH THE 1933 ACT AND THE 1939 ACT. On the date hereof,
the Indenture shall be qualified under the 1939 Act and no stop order suspending
the effectiveness of the Registration Statement, as amended from time to time,
shall be in effect, no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company, U S WEST, or the Agents, shall be
contemplated by the SEC.
(b) LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) OPINION OF COUNSEL TO THE COMPANY AND U S WEST. The favorable
opinion of Thomas O. McGimpsey, counsel to the Company and U S WEST, or
other counsel satisfactory to the Agents, to the effect that:
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(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) U S WEST 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 Articles or 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 U S WEST have been duly authorized by all necessary
corporate action on the part of the Company and U S WEST; the
Indenture has been duly and validly executed and delivered by the
Company and U S WEST and (assuming due authorization, execution and
delivery by the Trustee) constitutes the legal, valid, and binding
agreement of the Company and U S WEST enforceable against each of them
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
or by general equitable principles; and the Indenture has been duly
qualified under the 1939 Act;
(iv) The Notes, when duly executed and authenticated pursuant
to the Indenture and delivered in accordance with the provisions of
this Agreement, will constitute legal, valid, and binding obligations
of the Company enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights or by
general equitable principles;
(v) The execution, delivery and performance of this Agreement
by the Company and U S WEST have been duly authorized by all necessary
corporate action on the part of the Company and U S WEST, and this
Agreement has been duly and validly executed and delivered by each of
the Company and U S WEST;
(vi) All federal and state regulatory consents, approvals,
authorizations, or other orders (except as to state securities or
"blue sky" laws, as to which such counsel need express no opinion)
legally required for the execution by the Company and U S WEST of the
Indenture, and the issuance and sale of the Notes and the Guarantees
pursuant to the terms of this Agreement, have been obtained;
(vii) Except as to financial statements and schedules contained
therein, which such opinion need not pass upon, the Registration
Statement (including the Prospectus) complies, and at the time it
became effective complied, as to form in
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all material respects with the requirements of the 1933 Act and the
applicable instructions, rules and regulations of the SEC thereunder;
(viii) The Guarantees, when duly executed pursuant to the
Indenture and delivered in accordance with the provisions of this
Agreement, will constitute legal, valid, and binding obligations of U
S WEST, as guarantor, enforceable against U S WEST in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights or by
general equitable principles;
(ix) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the SEC; and
(x) The enforceability and legal, valid, and binding nature of
the agreements and obligations of the Company and U S WEST set forth
in the Indenture, the Guarantees, the Notes and this Agreement (the
"Agreements") are not affected by, and the performance of the
obligations set forth in such Agreements, the issuance and sale of the
Notes 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 (as hereinafter defined).
In rendering such opinion, such counsel may rely (i) as to matters of
New York law upon the opinion referred to in Section 5(b)(2) hereof without
independent verification; and (ii) as to matters of fact, to the extent
such counsel deems proper, on certificates of responsible officers of the
Company, U S WEST, and public officials.
In addition, such counsel shall state that it has not independently
verified the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus and does not assume any
responsibility for the accuracy, completeness or fairness of such
statements; however, nothing has come to such counsel's attention which
leads such counsel to believe that the Registration Statement and 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 opinion), and each amendment or supplement
thereto, as of their respective effective or issue dates or, if an Annual
Report on Form 10-K has been filed by the Company or U S WEST with the SEC
subsequent to the effectiveness of the Registration Statement, then at the
time of the most recent such filing, and at the date of such opinion,
contained or contains any untrue statements of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not
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misleading or that the Prospectus, as amended or supplemented as of the
date of such opinion (or, if such opinion is being delivered in connection
with the purchase of Notes by an Agent as principal pursuant to Section
8(c) hereof, at the date of any agreement by the Agent to purchase Notes as
principal and at the Settlement Date with respect thereto), contains an
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Except as specifically provided in clause (ix) above, 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").
(2) OPINION OF COUNSEL TO THE AGENTS. The favorable opinion of Brown
& Wood, counsel to the Agents, covering the matters referred to in
subsection (b)(1) under the subheadings (i), (ii), (iii), (iv), (v), (vii),
(viii) and (ix) and the penultimate paragraph of subsection (b)(1) above,
subject to the final paragraph of subsection (b)(1) above, and with respect
to such other matters as the Agents may reasonably request. In rendering
such opinion, Brown & Wood may rely as to matters of Colorado law, upon the
opinion referred to in Section 5(b)(1) without independent verification.
(c) COMPANY OFFICERS' CERTIFICATE. On the date hereof, the Agents shall
have received a certificate of the President, any Vice President, an assistant
secretary or an assistant treasurer, and the chief financial officer, chief
accounting officer, treasurer, controller, or an assistant treasurer or
assistant controller of the Company in which such officers shall state that the
representations and warranties of the Company in this Agreement are true and
correct as if made at and as of such 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 such 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 SEC, and that, subsequent to
the date of the most recent financial statements in the Prospectus, there has
been no material adverse change in the financial position or results of
operations of the Company and its subsidiaries, taken as a whole, except as set
forth in or contemplated by the Prospectus.
(d) US WEST OFFICERS' CERTIFICATE. On the date hereof, the Agents shall
have received a certificate of the President, any Vice President, an assistant
secretary or an assistant treasurer, and the chief financial officer, chief
accounting officer, treasurer, controller, or an assistant treasurer or
controller of U S WEST in which such officers shall state that the
representations and warranties of U S WEST in this Agreement are true and
correct as if made at and as of such date, that U S WEST has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such 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 SEC, and that, subsequent to
the date of the most recent
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financial statements in the Prospectus, there has been no material adverse
change in the financial position or results of operations of U S WEST and its
subsidiaries, taken as a whole, except as set forth in or contemplated by the
Prospectus.
(e) COMFORT LETTER OF ARTHUR ANDERSEN LLP.. On the date hereof, the
Agents shall have received a letter from Arthur Andersen LLP. addressed to the
Company, U S WEST and the Agents, dated as of the date hereof and in form and
substance satisfactory to the Agents.
(f) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and U S WEST in
connection with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by written notice to the Company and U S WEST at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(d) hereof, the indemnity and contribution
agreement set forth in Section 9 hereof, the provisions concerning payment of
expenses under Section 10 hereof, the provisions concerning the representations,
warranties, indemnities and agreements to survive delivery of Section 11 hereof,
the provisions relating to notices set forth in Section 13 hereof, the
provisions relating to governing law and forum set forth in Section 14 hereof,
and the provisions relating to parties set forth in Section 15 hereof shall
remain in effect.
6. CONDITIONS OF COMPANY'S OBLIGATIONS.
The obligation of the Company to deliver the Notes upon payment therefor
will be subject to the conditions that (i) the Indenture will be qualified under
the 1939 Act, (ii) no stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall be in effect, and
(iii) no proceedings for that purpose shall be pending before, or threatened by,
the SEC.
If any condition specified in this Section 6 shall not have been fulfilled
when required to be fulfilled, this Agreement may be terminated by the Company
by written notice to the Agents at any time and such termination shall be
without liability of any party to any other party, except that the covenant
regarding provision of an earnings statement set forth in Section 4(d) hereof,
the indemnity and contribution agreement set forth in Section 9 hereof, the
provisions regarding payment of expenses under Section 10 hereof, the provisions
concerning the representations, warranties, indemnities and agreements to
survive delivery of Section 11 hereof, the provisions
12
relating the notices set forth in Section 13 hereof, the provisions relating to
governing law and forum set forth in Section 14 hereof, and the provisions
relating to parties set forth in Section 15 hereof shall remain in effect.
7. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
8. ADDITIONAL COVENANTS OF THE COMPANY AND U S WEST.
The Company and U S WEST covenant and agree with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company and U S WEST contained in this Agreement and in any certificate
theretofore delivered to the Agents pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the time of
delivery to such Agent or Agents or to the purchaser or its agent, as the case
may be, of the Note or Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (and it is understood that
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rate or
formula applicable to the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes), or there is filed with the SEC any
document incorporated by reference into the Prospectus or (if required in
connection with the purchase of Notes by one or more Agents as principal) the
Company sells Notes to such Agent or Agents as principal, each of the Company
and U S WEST shall furnish or cause to be furnished to the Agent(s) forthwith a
certificate in form satisfactory to the Agent(s) to the effect that the
statements contained in the certificates referred to in Sections 5(c) and 5(d)
hereof which were last furnished to the Agents are true and correct at the time
of such amendment or
13
supplement or filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificates, certificates of the same tenor as the
certificates referred to in Sections 5(c) and 5(d) hereof, modified as necessary
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificates.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rate or formula applicable to the Notes or a change in the principal amount of
Notes remaining to be sold or similar changes), or there is filed with the SEC
any document incorporated by reference into the Prospectus (other than a
document setting forth or incorporating by reference financial statements or
other information as of and for a fiscal quarter, unless specifically requested
by all of the Agents) or (if required in connection with the purchase of Notes
by one or more Agents as principal) the Company sells Notes to such Agent or
Agents as principal, the Company and U S WEST shall furnish or cause to be
furnished to the Agent(s) and to counsel to the Agents a written opinion of
counsel to the Company and U S WEST, satisfactory to the Agent(s), dated the
date of delivery of such opinion, in form satisfactory to the Agent(s), of the
same tenor as the opinion referred to in Section 5(b)(1) hereof but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter to the effect that the Agent(s) may rely on such last
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (if required in connection with the purchase of Notes
by one or more Agents as principal) the Company sells Notes to such Agent or
Agents as principal, the Company and U S WEST shall cause Arthur Andersen LLP.
forthwith to furnish to the Agent(s) a letter, dated the date of filing of such
amendment, supplement or document with the SEC, or the date of such sale, as the
case may be, in form satisfactory to the Agent(s), of the same tenor as the
portions of the letter referred to in Section 5(g) hereof, but modified to
relate to the Registration Statement and Prospectus, as amended and supplemented
to the date of such letter, and with such other changes as may be necessary to
reflect changes in the financial statements and other information derived from
the accounting records of the Company and U S WEST; provided, however, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, Arthur Andersen
LLP. may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement, unless any other information included
therein of an
14
accounting, financial, or statistical nature is of such a nature that, in the
reasonable judgment of the Agent(s), such letter should cover such other
information.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and U S WEST, jointly and severally, will indemnify and
hold each Agent harmless against any losses, claims, damages, or liabilities,
joint or several, to which such Agent may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus 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 light of the
circumstances under which they were made, not misleading, and will reimburse
each Agent for any legal or other expenses reasonably incurred by such Agent, as
such expenses are incurred 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 U S WEST; provided,
however, that the Company and U S WEST 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 U S WEST by the
Agents specifically for use therein or in reliance upon and in conformity with
the Statement of Eligibility of the Trustee under the Indenture.
(b) The Agents will indemnify and hold harmless the Company and U S WEST
against any losses, claims, damages, or liabilities to which they may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus 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 not misleading, in each case to the extent, but only 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 U S WEST by the Agents specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company or U S WEST, as such expenses are incurred 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 consent of the Agents.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be
15
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 9 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The indemnifying
party or parties shall not be liable under this Agreement with respect to any
settlement made by any indemnified party or parties without prior written
consent by the indemnifying party or parties to such settlement.
(d) If the indemnification provided for in this Section 9 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 in such proportion as is
appropriate to reflect the relative benefits received by the Company and U S
WEST on the one hand and the Agents on the other from the offering of the Notes
and also to reflect the relative fault of the Company and U S WEST on the one
hand and the Agents 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 U S WEST on the one hand and the Agents on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of
Notes by the Agents (before deducting expenses) received by the Company and U S
WEST bear to the total underwriting discounts and commissions received by the
Agents. 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, U S WEST, or the Agents and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages, or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Agents shall notbe required to contribute any amount in excess of the amount by
which the total price at which the Notes sold by such Agents and distributed to
the public were offered to the public exceeds the amount of any damages which
such Agents have 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
16
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and U S WEST under this Section 9 shall
be in addition to any liability which the Company or U S WEST may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls each Agent within the meaning of the Act or the 1934 Act; the
Agents' obligations under this Section 9 shall be in addition to any liability
which the Agents may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company or U S WEST, to each officer of the
Company or U S WEST who has signed the Registration Statement, and to each
person, if any, who controls the Company or U S WEST within the meaning of the
1933 Act or the 1934 Act.
10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of Notes in book-entry form;
(d) The fees and disbursements of the Company's accountants and counsel,
of the Trustee and its counsel, and of any calculation agent or exchange rate
agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
(g) The printing and delivery to the Agents in such quantities as are
reasonably requested of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
17
(h) The preparation, reproducing and delivery to the Agents of copies of
the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing of Notes
on a securities exchange;
(k) The fees and expenses incurred with respect to any filing with the
National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
(m) The cost of providing any CUSIP or other identification numbers for
the Notes.
11. REPRESENTATIONS, WARRANTIES, INDEMNITIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties, indemnities and agreements contained in
this Agreement or in certificates of officers of the Company or U S WEST
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Agents
of the Company, or U S WEST, or any of their officers, directors or any
controlling person, and shall survive each delivery of and payment for any of
the Notes. In no event shall the Company or U S WEST be liable to the Agents
for damages on account of loss of anticipated profits.
12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by one or more Agents to purchase Notes as principal) may be
terminated, for any reason at any time, by any Agent as to itself or by the
Company as to all or any of the Agents upon the giving of 7 days written notice
of such termination to the other parties hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent or Agents may terminate any agreement hereunder by such Agent
or Agents to purchase Notes as principal, immediately upon notice to the Company
and U S WEST, at any time prior to the Settlement Date relating thereto if (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 U S WEST and its subsidiaries considered as one enterprise, or in the
earnings, affairs, or business prospects of the Company or of U S WEST and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, the effect of which is, in the judgment of such
Agent or Agents, so material and adverse as to make it impracticable to
18
market the Notes or enforce contracts for the sale thereof; or (ii) trading in
any securities of the Company or U S WEST shall have been suspended by the SEC
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; or (iii) a banking moratorium shall have
been declared either by Federal or New York State authorities or a banking
moratorium shall have been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which the Notes
are denominated or payable, or (iv) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which in the financial markets in the United States is such as to make it, in
the judgment of such Agent or Agents, impracticable to market the Notes or
enforce contracts for the sale thereof; or (v) the rating assigned by any
nationally recognized securities rating agency to any debt securities of the
Company or U S WEST as of the date of the agreement to purchase the Notes shall
have been lowered since that date or any such rating agency shall have publicly
announced thatit has any of such debt securities under consideration for
possible downgrade.
(c) GENERAL. In the event of any such termination, no party will have any
liability to any other party hereto, except that (i) the Agents shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Notes relating thereto
has not occurred, the conditions set forth in Sections 5 and 6 hereof shall
remain in effect until such Notes are so resold or delivered, as the case may
be, and (iii) the covenant set forth in Section 4(d) hereof, the indemnity and
contribution agreements set forth in Section 9 hereof, and the provisions of
Sections 10, 11, 13, 14 and 15 hereof shall remain in effect.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telecopier or telegram, and any such notice shall be effective when received at
the address specified below.
If to the Company:
U S WEST Capital Funding, Inc.
7800 East Orchard Road
Englewood, Colorado 80111
Attention: Treasurer
Telecopy No.: (303) 793-6657
If to U S WEST:
19
U S WEST, Inc.
7800 East Orchard Road
Englewood, Colorado 80111
Attention: Treasurer
Telecopy No.: (303) 793-6657
If to the Agents:
[NOTICE INFORMATION]
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
14. GOVERNING LAW; FORUM.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company or U S WEST against any Agent in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Company, U S WEST and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Section 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
20
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the Agents, U S WEST and the Company in accordance with its terms.
Very truly yours,
U S WEST CAPITAL FUNDING, INC.
By:
-------------------------------------
Name:
Title:
U S WEST, INC.
By:
-------------------------------------
Name:
Title:
Confirmed and Accepted, as of the date
first above written:
[AGENTS]
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate, if any:
Spread and/or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date:
Fixed Interest Rate:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Stated Maturity Date:
Purchase Price: ___%, plus accrued interest, if any, from
______________________
Settlement Date and Time:
Specified Currency:
Authorized Denominations:
Additional/Other Terms:
Also, in connection with the purchase of Notes by one or more Agents as
principal, agreement as to whether the following will be required:
Officers' Certificates pursuant to Section 8(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 8(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 8(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(h) of the Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year ___%
From 1 year to less than 18 months ___
From 18 months to less than 2 years ___
From 2 years to less than 3 years ___
From 3 years to less than 4 years ___
From 4 years to less than 5 years ___
From 5 years to less than 6 years ___
From 6 years to less than 7 years ___
From 7 years to less than 10 years ___
From 10 years to less than 15 years ___
From 15 years to less than 20 years ___
From 20 years to 40 years ___
Greater than 40 years *
- -----------------
* As agreed to by the Company and the applicable Agent at the time of sale.