Exhibit 4-A
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U S WEST CAPITAL FUNDING, Inc.,
Issuer,
U S WEST, Inc.,
Guarantor
and
The First National Bank of Chicago,
Trustee
------------------
INDENTURE
DATED AS OF _________ __, 1998
--------------------
Providing for the Issuance of Debt
Securities in Series
of Guaranteed Debt
TIE-SHEET
Reconciliation and tie between Indenture dated as of __________ ___,
1998 and the Trust Indenture Act of 1939. This reconciliation section does not
constitute part of the Indenture.
TRUST INDENTURE ACT INDENTURE
OF 1939 Section SECTION
----------------- -------
301(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(a). . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b). . . . . . . . . . . . . . . . . . . . . . . . 7.08, 7.10
(c). . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a). . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a). . . . . . . . . . . . . . . . . . . . . . . . . 2.07
(b). . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c). . . . . . . . . . . . . . . . . . . . . . . . 10.03
313(a). . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . 4.02, 11.02
(d). . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a). . . . . . . . . . . . . . . . . . . . . . . . . 4.02, 11.02
(b). . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(d). . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(e). . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f). . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a). . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . 7.05, 11.02
(c). . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . 6.05,
7.01(c)
(e). . . . . . . . . . . . . . . . . . . . . . . . 6.07, 6.11
316(a) (last sentence). . . . . . . . . . . . . . . . . 2.11
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b). . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 6.01, 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . 2.06
318(a). . . . . . . . . . . . . . . . . . . . . . . . . 11.01
TABLE OF CONTENTS*
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . 1
Depositary . . . . . . . . . . . . . . . . . . . . . . 2
Global Security . . . . . . . . . . . . . . . . . . . 2
Section 1.02 Other Definitions. . . . . . . . . . . . . . . . . . . 4
Section 1.03 Incorporation by Reference of
Trust Indenture Act. . . . . . . . . . . . . . . . . 4
Section 1.04 Rules of Construction. . . . . . . . . . . . . . . . . 5
ARTICLE 2.
THE SECURITIES
Section 2.01 Issuable in Series.. . . . . . . . . . . . . . . . . . 5
Section 2.02 Establishment of Terms and
Form of Series of Securities and Guarantees . . . . 5
Section 2.03 Execution, Authentication,
and Delivery. . . . . . . . . . . . . . . . . . . . . 8
Section 2.04 Registrar and Paying Agent. . . . . . . . . . . . . . 9
Section 2.05 Payment on Securities. . . . . . . . . . . . . . . . . 10
Section 2.06 Paying Agent to Hold Money in Trust. . . . . . . . . . 11
Section 2.07 Securityholder lists; Ownership of Securities . . . . 11
Section 2.08 Transfer and Exchange. . . . . . . . . . . . . . . . . 12
Section 2.09 Replacement Securities.. . . . . . . . . . . . . . . . 13
Section 2.10 Outstanding Securities.. . . . . . . . . . . . . . . . 13
Section 2.11 Treasury Securities. . . . . . . . . . . . . . . . . . 14
Section 2.12 Temporary Securities.. . . . . . . . . . . . . . . . . 14
Section 2.13 Cancellation.. . . . . . . . . . . . . . . . . . . . . 15
Section 2.14 Defaulted Interest.. . . . . . . . . . . . . . . . . . 16
Section 2.15 Global Securities. . . . . . . . . . . . . . . . . . . 16
Section 2.16 Unconditional Guarantee. . . . . . . . . . . . . . . . 17
Section 2.17 Execution of Guarantees. . . . . . . . . . . . . . . . 18
Section 2.18 Assumption by Guarantor . . . . . . . . . . . . . . . 18
ARTICLE 3.
REDEMPTION
Section 3.01 Notice to Trustee.. . . . . . . . . . . . . . . . . . 19
Section 3.02 Selection of Securities to be Redeemed.. . . . . . . . 19
Section 3.03 Notice of Redemption.. . . . . . . . . . . . . . . . . 19
Section 3.04 Effect of Notice of Redemption.. . . . . . . . . . . . 20
Section 3.05 Deposit of Redemption Price. . . . . . . . . . . . . . 21
Section 3.06 Securities Redeemed in Part. . . . . . . . . . . . . . 21
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ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities. . . . . . . . . . . . . . . . . . 22
Section 4.02 Reports by the Guarantor . . . . . . . . . . . . . . . . 21
Section 4.03 Lien on Assets . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01 When the Company May Merge, etc. . . . . . . . . . . . . 22
Section 5.02 When the Guarantor May Merge, etc. . . . . . . . . . . . 23
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. . . . . . . . . . . . . . . . . . . . 23
Section 6.02 Acceleration.. . . . . . . . . . . . . . . . . . . . . . 24
Section 6.03 Other Remedies Available to Trustee. . . . . . . . . . . 24
Section 6.04 Waiver of Existing Defaults. . . . . . . . . . . . . . . 25
Section 6.05 Control by Majority. . . . . . . . . . . . . . . . . . . 25
Section 6.06 Limitation on Suits by Securityholders.. . . . . . . . . 25
Section 6.07 Rights of Holders to Receive Payment. . . . . . . . . . .26
Section 6.08 Collection Suits by Trustee. . . . . . . . . . . . . . . 26
Section 6.09 Trustee May File Proofs of Claim.. . . . . . . . . . . . 26
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.11 Undertaking for Costs. . . . . . . . . . . . . . . . . . 27
.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.. . . . . . . . . . . . . . . . . . . 27
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . 28
Section 7.03 Individual Rights of Trustee. . . . . . . . . . . . . . 28
Section 7.04 Trustee's Disclaimer. . . . . . . . . . . . . . . . . . 29
Section 7.05 Notice of Defaults. . . . . . . . . . . . . . . . . . . 29
Section 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . 29
Section 7.07 Compensation and Indemnity. . . . . . . . . . . . . . . 29
Section 7.08 Replacement of Trustee. . . . . . . . . . . . . . . . . 30
Section 7.09 Successor Trustee, Agents
by Merger, etc. . . . . . . . . . . . . . . . . . . . 32
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . 32
Section 7.11 Preferential Collection
of Claims Against the Company . . . . . . . . . . . . 32
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.01 Termination of the Company's
and the Guarantor's Obligations . . . . . . . . . . . 32
Section 8.02 Application of Trust Money. . . . . . . . . . . . . . . 33
Section 8.03 Repayment to the Company or the Guarantor . . . . . . . 34
Section 8.04 Indemnity for Government Obligations. . . . . . . . . . 34
ARTICLE 9.
AMENDMENTS AND WAIVERS
Section 9.01 Without Consent of Holders. . . . . . . . . . . . . . . 34
Section 9.02 With Consent of Holders.. . . . . . . . . . . . . . . . 35
Section 9.03 Compliance with Trust Indenture Act . . . . . . . . . . 36
Section 9.04 Revocation and Effect of Consents . . . . . . . . . . . 36
Section 9.05 Notation on or Exchange of Securities.. . . . . . . . . 36
Section 9.06 Trustee Protected.. . . . . . . . . . . . . . . . . . . 36
ARTICLE 10.
SINKING FUNDS
Section 10.01 Applicability of Article . . . . . . . . . . . . . . . 37
Section 10.02 Satisfaction of Sinking
Fund Payments with Securities . . . . . . . . . . . 37
Section 10.03 Redemption of Securities
for Sinking Fund . . . . . . . . . . . . . . . . . . 37
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls.. . . . . . . . . . . . . 38
Section 11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.03 Communication by Holders
with Other Holders. . . . . . . . . . . . . . . . . . 39
Section 11.04 Certificate and Opinion as
to Conditions Precedent.. . . . . . . . . . . . . . . 39
Section 11.05 Statements Required in
Certificate or Opinion. . . . . . . . . . . . . . . . 40
Section 11.06 Rules by Trustee and Agents. . . . . . . . . . . . . . 40
Section 11.07 Legal Holidays.. . . . . . . . . . . . . . . . . . . . 40
Section 11.08 Governing Law. . . . . . . . . . . . . . . . . . . . . 40
Section 11.09 No Adverse Interpretation
of Other Agreements.. . . . . . . . . . . . . . . . . 41
Section 11.10 No Recourse Against Others.. . . . . . . . . . . . . . 41
Section 11.11 Execution in Counterparts. . . . . . . . . . . . . . . 41
iii
ARTICLE 12.
REPAYMENT AT THE OPTION OF THE HOLDER
Section 12.01 Applicability of Article 10 . . . . . . . . . . . . . . . . . 41
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
_________________
*This Table of Contents does not constitute part of this Indenture.
INDENTURE dated as of _____ __, 1998 among U S WEST CAPITAL
FUNDING, Inc., a Colorado corporation (the "Company"), U S WEST, Inc., a
Delaware corporation (the "Guarantor"), and The First National Bank of
Chicago, a national banking association (the "Trustee").
RECITALS OF THE COMPANY
AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes, or other evidences of indebtedness
("Securities") as herein provided.
The Guarantor has duly authorized the execution and delivery of
this Indenture and deems it appropriate from time to time to issue its
guarantees of the Securities on the terms herein provided (the "Guarantees").
All things necessary to make this Indenture a valid agreement of
the Company and the Guarantor, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company,
or the Guarantor, as the case may be.
"Agent" means any Paying Agent, Registrar or transfer agent as may
be appointed by the Company from time to time.
"Authorized Newspaper" means a newspaper of general circulation, in
the official language of the country of publication or in the English
language, customarily published on each business day. Whenever successive
weekly publications in an Authorized Newspaper are required hereunder, they
may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
"Board of Directors" mean the Board of Directors of the Company or
the Guarantor, as the case may be, or any duly authorized committee thereof.
1
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the
Company or the Guarantor, as the case may be, to have been adopted by the
Board of Directors and to be in full force and effect on the date of the
certificate.
"Company" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers of the
Company.
"Depositary" means, with respect to Securities of any Series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.15.
"Default" means any event which is, or after notice or passage of
time would be, an Event of Default.
"Guarantee" means the agreement of the Guarantor in the form, set
forth in Section 2.16 hereof, to be endorsed on the Securities authenticated
and delivered hereunder.
"Guarantor" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Global Security" means, with respect to any Series of Securities,
a Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary
or its nominee.
"Holder" or "Securityholder" means a bearer of an Unregistered
Security or of a coupon appertaining thereto or a person in whose name a
Registered Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from
time to time and shall include the forms and terms of particular Series of
Securities established as contemplated hereunder.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means
interest payable after maturity.
"Officer" means the President, any Executive Vice-President, Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, any
Assistant Secretary or the Comptroller or any Assistant Comptroller of the
Company or the Guarantor, as the
2
case may be.
"Officers' Certificate" means a certificate signed by two Officers
of the Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of legal counsel who
is acceptable to the Company, the Guarantor and the Trustee. The counsel may
be an employee of or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be
due and payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02.
"Principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest by the Registrar.
"Responsible Officer" when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice-chairman of the executive committee of the board of
directors or trustees, the president, any executive vice-president, any
senior vice-president, any vice-president, any assistant vice-president, the
treasurer, the secretary, any trust officer, any second or assistant
vice-president, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and
familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Series" or Series of Securities" means a series of Securities.
"Securities" means the debentures, notes, or other obligations of
the Company issued, authenticated, and delivered under this Indenture.
"Subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company and/or
by one or more other Subsidiaries. For purposes of such definition, "voting
stock" means stock ordinarily having voting power for the election of
directors, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
777aaa-777bbb) as in effect on the date of this Indenture, except as provided
in Section 9.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and if, at any
time, there is more
3
than one Trustee, "Trustee" as used with respect to the Securities of any
Series shall mean the Trustee with respect to that Series.
"U.S. Person" means a citizen, national, or resident of the United
States, a corporation, partnership, or other entity created or organized in
or under the laws of the United States or any political subdivision thereof,
or an estate or trust which is subject to United States federal income
taxation regardless of its source of income.
"Unregistered Security" means any Security issued hereunder which
is not a Registered Security.
"Yield to Maturity" means the yield to maturity, calculated by the
Company at the time of issuance of a Series of Securities or, if applicable,
at the most recent determination of interest on such Series in accordance
with accepted financial practice.
Section 1.02 OTHER DEFINITIONS.
INDENTURE
TERM SECTION
"Bankruptcy Law". . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default". . . . . . . . . . . . . . . . . . . . . . . 6.01
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . 11.07
"Paying Agent". . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . 8.01
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and the
Guarantor, if and as long as the Guarantor is liable with respect to
any payment of principal of, premium, if any, and interest on any
Security as a result of the Company's default in the timely payment of
any amount due with respect to any Security.
All other terms used in this Indenture that are defined by the TIA,
defined
4
by TIA reference to another statute, or defined by SEC rule under the TIA
have the meanings assigned to them therein.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE 2.
THE SECURITIES
Section 2.01 ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more Series. There may be Registered
Securities and Unregistered Securities within a Series and the Unregistered
Securities may be subject to such restrictions, and contain such legends, as
may be required by United States laws and regulations. All Series of
Securities shall be equally and ratably entitled to the benefits of this
Indenture.
Section 2.02 ESTABLISHMENT OF TERMS AND FORM OF SERIES OF
SECURITIES AND GUARANTEES.
(a) At or prior to the issuance of any Series of Securities, the
following shall be established by a Company Board Resolution, by one or more
Officers of the Company pursuant to a Company Board Resolution, or by an
indenture supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of any other
Series and from any other securities issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities of
the Series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.08, 2.09, 2.12, 3.06 or 9.05);
(3) the date or dates on which the principal of the Securities of the
Series is payable;
5
(4) the rate or rates at which the Securities of the Series shall bear
interest, if any, or the manner of determining such rate or rates of
interest, the date or dates from which such interest shall accrue, the dates
on which such interest shall be payable, and, with respect to Registered
Securities, the record date for the interest payable on any interest payment
date, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of and interest on
Registered and Unregistered, if any, Securities of the Series shall be
payable;
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous provisions
or upon the happening of a specified event or at the option of a Holder
thereof and the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(8) if in other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons), or
both, and any restrictions applicable to the offering, sale or delivery of
Unregistered Securities and whether, and the terms upon which, Unregistered
Securities of a Series may be exchanged for Registered Securities of the same
Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who is
not a U.S. person in respect of taxes or similar charges withheld or deducted
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(12) the form or forms of the Securities (or forms thereof if
Unregistered and Registered Securities shall be issuable in such Series),
including such legends as may be required by United States laws or
regulations, the form of any coupons or temporary global Security which may
be issued and the forms of any certificates, opinions or other documents
which may be required hereunder or under United States laws or regulations in
connection with the offering, sale, delivery or exchange of Unregistered
Securities;
6
(13) whether the Securities of the Series are issuable as a Global
Security and, in such case, the identity of the Depositary for such Series;
(14) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currency, in which
payment of the principal of and premium, if any, or interest on the
Securities of the Series shall be payable;
(15) if the principal of or interest on the Securities of the Series
are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to be
payable, the coin or currency, including composite currency, in which payment
of the principal of and premium, if any, or interest on Securities of such
Series as to which such election is made shall be payable, the period or
periods within which, and the terms and conditions upon which, such election
may be made;
(16) if the amount of payments of principal of or interest on the
Securities of the Series may be determined with reference to an index based
on coin or currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined; and
(17) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture), including any terms
which may be required by or advisable under United States laws or regulations
or advisable in connection with the marketing of Securities of that Series.
(b) All Securities of any one Series shall be substantially
identical except as to denomination and the rate or rates of interest, if
any, and maturity and currency and, except as may otherwise be provided in or
pursuant to a Company Board Resolution or a certificate delivered pursuant to
Section 2.02(c) or in an indenture supplemental hereto. All Securities of
any one Series need not be issued at the same time, and, unless otherwise
provided, a Series may be reopened for issuances of additional Securities of
such Series.
(c) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Company Board Resolution, the Company shall
deliver a copy of such Board Resolution to the Trustee at or prior to the
issuance of such Series with (1) the form or forms of the Securities which
have been approved attached thereto; or (2) if such Board Resolution
authorizes a specific Officer or Officers to establish the terms and form or
forms of the Securities, a certificate of such Officer or Officers
establishing or providing for the establishment of the terms and form or
forms of the Securities, with such form or forms of the Securities attached
to the certificate establishing such form or forms.
(d) Unregistered Securities and their coupons must have the
following statement on their face: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations
7
provided in Section 165(j) and 1287 of the Internal Revenue Code of 1986, as
amended."
(e) At or prior to the issuance of any of the Guarantees, the
exact form and terms of such Guarantees, which shall comply with the terms of
Section 2.16 hereof, shall be established by an Officers' Certificate of the
Guarantor.
Section 2.03 EXECUTION, AUTHENTICATION, AND DELIVERY.
(a) The Securities shall be executed on behalf of the Company by,
and the Guarantees endorsed thereon shall be executed on behalf of the
Guarantor by, its President, an Executive Vice President or a Vice President,
and by its Treasurer or an Assistant Treasurer, or its Secretary or an
Assistant Secretary. Signatures shall be manual or facsimile. The Company's
seal shall be reproduced on the Securities and may, but need not, be
attested. The Guarantor's seal shall be reproduced on the Guarantees and may,
but need not, be attested. The coupons of Unregistered Securities shall bear
the facsimile signature of the Treasurer or an Assistant Treasurer of the
Company.
(b) If an Officer whose signature is on a Security, a Guarantee or
coupon no longer holds that office at the time the Security or the Guarantee
is authenticated, the Security, Guarantee or coupon shall be valid
nevertheless.
(c) A Security or Guarantee thereon shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent, and no coupon shall be valid until the Security to which it appertains
has been so authenticated. Such signature shall be conclusive evidence that
the Security has been authenticated under this Indenture. Each Unregistered
Security shall be dated the date of its authentication.
(d) The Trustee (or an authenticating agent appointed pursuant to
Section 2.03(f)) shall at any time, and from time to time, authenticate and
deliver Securities of any Series executed and delivered by the Company with
Guarantees endorsed thereon for original issue in an unlimited aggregate
principal amount, upon receipt by the Trustee (or an authentication agent) of
(i) a Company Order or directions pursuant to such a Company Order for the
authentication and delivery of such Securities; (ii) if the terms and form or
forms of the Securities of such Series have been established by or pursuant
to a Board Resolution as permitted pursuant to Section 2.02, a copy of such
Board Resolution and any certificate that may be required pursuant to Section
2.02(c); (iii) an Officers' Certificate of the Guarantor establishing the
terms of the Guarantees; and (iv) an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 2.02, that such form has been
established in conformity with provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such terms
have been established, or provision has been made for their establishment, in
conformity with the provisions of this indenture; and
8
(3) that such Securities and Guarantees, when authenticated and
delivered by the Trustee (or an authenticating agent) and issued by the
Company or the Guarantor, as applicable, in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company or the Guarantor, as applicable,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general equity
principles.
If the terms and form or forms of such Securities have been established
by or pursuant to a Board Resolution as permitted by Section 2.02, the
Trustee shall not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will materially and adversely
affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the foregoing, until the Company has notified the
Trustee and the Registrar that, as a result of the action described, the
Company would not suffer adverse consequences under the provisions of United
States law or regulations in effect at the time of the delivery of
Unregistered Securities, (i) delivery of Unregistered Securities will be made
only outside the United States and its possessions, and (ii) Unregistered
Securities will be released in definitive form to the person entitled to
physical delivery thereof only upon presentation of a certificate in the form
prescribed by the Company.
(e) The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution (or certificate of
an Officer or Officers) or supplemental indenture pursuant to Section 2.02 or
in any additional Board Resolution or supplemental indenture which shall
reopen a Series of Securities pursuant to Section 2.02.
(f) The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal
with the Company or an Affiliate.
Section 2.04 REGISTRAR AND PAYING AGENT.
The Company shall maintain for each Series of Securities an office
or agency where Registered Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where (subject
to Sections 2.05 and 2.08) Securities may be presented for payment ("Paying
Agent"). With respect to any Series of Securities issued in whole or in part
as Unregistered Securities, the Company shall maintain one or more Paying
Agents located outside the United States and its possessions and shall
maintain such Paying Agents for a period of two years after the principal of
such Unregistered Securities has become due and payable. During any period
thereafter for which it is necessary in order to conform to United States tax
law or regulations, the
9
Company will maintain a Paying Agent outside the United States and its
possessions to which the Unregistered Securities or coupons appertaining
thereto may be presented for payment and will provide the necessary funds
therefor to such Paying Agent upon reasonable notice. The Registrar shall
keep a register with respect to each Series of Securities issued in whole or
in part as Registered Securities and as to their transfer and exchange. The
Company may appoint one or more co-Registrars and one or more additional
Paying Agents for each Series of Securities and the Company may terminate the
appointment of any co-Registrar. The term "Paying Agent" includes any
additional Paying Agent. The Company shall notify the Trustee of the name
and address of any Agent not a party to this Indenture. If the Company fails
to maintain a Registrar or Paying Agent, the Trustee shall act as such.
Section 2.05 PAYMENT ON SECURITIES.
(a) Subject to the following provisions, the Company will pay to the
Trustee or the Paying Agent the amounts, in such coin or currency as is at
the time legal tender for the payment of public or private debt, at the times
and for the purposes set forth herein and in the text of the Securities
Series, and the Company hereby authorizes and directs the Trustee or the
Paying Agent, from funds so paid to it, to make or cause to be made payment
of the principal of, interest, and premium if any, on the Securities and
coupons of each Series as set forth herein and in the text of such Securities
and coupons. The Trustee will arrange directly with any Paying Agent for the
payment, or the Trustee will make payment, from funds furnished by the
Company, of the principal of, interest, and premium if any, on the Securities
and coupons of each Series by check drawn upon a bank specified by the
Company and acceptable to the Trustee.
(b) Interest, if any, on Registered Securities of a Series shall be
paid on each interest payment date for such Series to the Holder thereof at
the close of business on the relevant record dates specified in the
Securities of such Series. The Company may pay such interest by check mailed
to such Holder's address as it appears on the register for Securities of such
Series. Principal of Registered Securities shall be payable only against
presentation and surrender thereof at the office of the Paying Agent in The
City of New York, unless the Company shall have otherwise instructed the
Trustee in writing.
(c) To the extent provided in the Securities of a Series, (i) interest,
if any, on Unregistered Securities shall be paid only against presentation
and surrender of the coupons for such interest installments as are evidenced
thereby as they mature; and (ii) original issue discount (as defined in
Section 1273 of the Internal Revenue Code of 1986, as amended), if any, on
Unregistered Securities shall be paid only against presentation and surrender
of such Securities; in either case at the office of a Paying Agent located
outside of the United States and its possessions, unless the Company shall
have otherwise instructed the Trustee in writing. Principal of Unregistered
Securities shall be paid only against presentation and surrender thereof as
provided in the Securities of a Series. If at the time a payment of
principal of or interest, if any, or original issue discount, if any, on an
Unregistered Security or coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside
the United States and its possessions is illegal or effectively precluded
because of the imposition of exchange
10
controls or other similar restrictions on the payment of such amount in
United States currency, then the Company will instruct the Trustee in writing
as to how and when such payment will be made and may instruct the Trustee to
make such payments at the office of a Paying Agent located in the United
States, provided that the Company has determined that provision for such
payment in the United States would not cause such Unregistered Security to be
treated as a "registration-required obligation" under United States law and
regulations. Unless otherwise instructed in writing by the Company, no
payments of interest, original issue discounts, or principal with respect to
Unregistered Securities shall be made by a Paying Agent (i) by transfer of
funds into an account maintained by the payee in the United States, (ii)
mailed to an address in the United States, or (iii) paid to a United States
address by electronic funds transfer.
Section 2.06 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any or all Series of Securities, or the Trustee, all money
held by the Paying Agent for the payment of principal or interest on such
Series of Securities, and that the Paying Agent will notify the Trustee of
any default by the Company (or any other obligor on the Securities) in making
any such payment. While any such default continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. If the Company or
a Subsidiary acts as Paying Agent, it shall segregate the money held by it
for the payment of principal or interest on any Series of Securities and hold
such money as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon so doing, the
Paying Agent shall have no further liability for the money so paid. The
Trustee or the Paying Agent may allow and credit to the Company (or any other
obligor on the Securities) interest on any monies received by it hereunder at
such rate as may be agreed upon with the Company (or any other obligor on the
Securities) from time to time and as may be permitted by law.
Section 2.07 SECURITYHOLDER LISTS; OWNERSHIP OF SECURITIES.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders of each Series of Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee semiannually on or before
the last day of June and December in each year, and at such other times as
the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require, containing all the information in the
possession or control of the Registrar, the Company, the Guarantor, or any of
the Paying Agents other than the Trustee as to the names and addresses of
Holders of each such Series of Securities.
(b) Ownership of Registered Security of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities,
or by a certificate or affidavit executed by the person holding such
Unregistered Securities, or by a depository with whom such Unregistered
Securities were deposited if the certificate or affidavit is
11
satisfactory to the Trustee. The Company, the Trustee, the Guarantor, and
any agent of the Company may treat the bearer or any Unregistered Security or
coupon and the person in whose name a Registered Security is registered as
the absolute owner thereof for all purposes.
Section 2.08 TRANSFER AND EXCHANGE.
(a) Where Registered Securities of a Series are presented to the
Registrar with a request to register their transfer or to exchange them for
an equal principal amount of Registered Securities of the same Series
containing identical terms and provisions and date of maturity of other
authorized denominations, the Registrar shall register the transfer or make
the exchange if its requirements for such transactions are met.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i)
Unregistered Securities may be exchanged for an equal principal amount of
Registered or Unregistered Securities containing identical terms and
provisions of the same Series and date of maturity in any authorized
denominations upon delivery to the Registrar (or a Paying Agent, if the
exchange is for Unregistered Securities) of the Unregistered Security with
all unmatured coupons and all matured coupons in default appertaining thereto
and if all other requirements of the Registrar (or such Paying Agent) and
such Securities for such exchange are met, and (ii) Registered Securities may
be exchanged for an equal principal amount of Unregistered Securities of the
same Series and date of maturity in any authorized denominations (except that
any coupons appertaining to such Unregistered Securities which have matured
and have been paid shall be detached) upon delivery to the Registrar of the
Registered Securities and if all other requirements of the Registrar (or such
Paying Agent) and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities
for Registered Securities or Registered Securities for Unregistered
Securities will be subject to the satisfaction of the provisions of United
States law and regulations in effect at the time of such exchange, and no
exchange of Registered Securities for Unregistered Securities will be made
until the Company has notified the Trustee and the Registrar that, as a
result of such exchange, neither the Company nor the Guarantor would suffer
adverse consequences under the provisions of United States law or regulations.
(c) To permit registrations of transfers and exchanges the Trustee (or
an authenticating agent) shall authenticate Securities upon instructions of
the Registrar or, if applicable, a Paying Agent upon surrender of Securities
for registration of transfer or for exchange as provided in this Section.
The Company will not make any charge for any registration of transfer or
exchange but may require the payment by the party requesting such
registration of transfer or exchange of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to
issue, register the transfer of or exchange Securities of any Series for the
period of 15 days immediately preceding the selection of any such Securities
to be redeemed, or (ii) to
12
register the transfer of or exchange Securities of any Series selected,
called, or being called for redemption as a whole or the portion being
redeemed of any such Securities selected, called, or being called for
redemption in part.
(e) Unregistered Securities or any coupons appertaining thereto shall
be transferable by delivery.
Section 2.09 REPLACEMENT SECURITIES.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee (or an authenticating
agent), the Company shall issue (with the Guarantee thereon executed by the
Guarantor) and the Trustee (or an authenticating agent) shall authenticate a
replacement Registered Security, if such surrendered security was a
Registered Security, or a replacement Unregistered Security with coupons
corresponding to the coupons appertaining to the surrendered Security, if
such surrendered Security was an Unregistered Security of the same Series and
containing identical terms and provisions, if the Trustee's (or
authenticating agent's) requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed, or wrongfully taken, the
Company shall issue (with the Guarantee thereon executed by the Guarantor)
and the Trustee (or an authenticating agent), shall authenticate a
replacement Registered Security, if such Holder's claim pertains to a
Registered Security, or a replacement Unregistered Security with coupons
corresponding to the coupons appertaining to the lost, destroyed, or
wrongfully taken Unregistered Security or the Unregistered Security to which
such lost, destroyed, or wrongfully taken coupon appertains, if such Holder's
claim pertains to an Unregistered Security, of the same Series and containing
identical terms and provisions, if the Trustee's requirements are met;
provided, however, that the Trustee (or an authenticating agent), the
Guarantor, or the Company may require any such Holder to provide to the
Trustee and the Company security or indemnity sufficient in the judgment of
the Guarantor or the Company and the Trustee (or an authenticating agent) to
protect the, the Guarantor, Company, the Trustee (or an authenticating agent)
and any Agent from any loss which any of them may suffer if a Security is
replaced. The Company and the Trustee (or an authenticating agent) may
charge the party requesting a replacement Security for its expenses in
replacing a Security.
(c) Every replacement Security is an additional obligation of the
Company. Every replacement Guarantee is an additional obligation of the
Guarantor.
(d) Notwithstanding anything to the contrary contained herein,
replacement Securities need not be issued in any of the circumstances
described in Section 2.09 if the Company, the Guarantor, or the Trustee (or
an authenticating agent) have notice that the mutilated, lost, destroyed, or
wrongfully taken Security has been acquired by a bona fide purchaser.
13
Section 2.10 OUTSTANDING SECURITIES.
(a) Securities outstanding at any time are all Securities authenticated
by the Trustee (or an authenticating agent), except for those canceled by it,
those delivered to it for cancellation, and those described in this Section
as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee (or an authenticating agent), receives proof
satisfactory to it that the replaced Security is held by a bona fide
purchaser.
(c) If the Paying Agent holds on a redemption date or maturity date
money or U.S. Government Obligations sufficient to pay all amounts due on
Securities of any Series on that date, then on and after that date, all
Securities of such Series cease to be outstanding and interest on them ceases
to accrue.
(d) A Security does not cease to be outstanding because the Company,
the Guarantor, or an Affiliate of either of them holds the Security.
(e) In determining whether the Holders of the requisite principal
amount of outstanding Securities of any Series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other
purpose, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.02; and (ii) the principal amount of any security
denominated in a currency other than United States dollars that shall be
deemed to be outstanding for such purposes shall be that amount of United
States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date for such determination or action
(or, if there shall be no applicable record date, such other date reasonably
proximate to the date of such determination or action), in each case, as the
Company shall specify in a written notice to the Trustee.
Section 2.11 TREASURY SECURITIES.
In determining whether the Holders of the requisite principal amount of
Securities of any Series have concurred in any direction, waiver, or consent,
Securities of such Series owned by the Company, the Guarantor, or an
Affiliate of either of them shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver, or consent, only Securities of such Series which
the Trustee knows are so owned shall be so disregarded.
Section 2.12 TEMPORARY SECURITIES.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Registered Securities of such Series having duly
executed Guarantees endorsed
14
thereon. Temporary Registered Securities of any Series shall be
substantially in the form of definitive Registered Securities of such Series
but may have variations that the Company and the Guarantor considers
appropriate for temporary Securities. Every temporary Registered Security
shall be executed by the Company, authenticated by the Trustee, and
registered by the Registrar, upon the same conditions, and with like effect,
as a definitive Registered Security. Without unreasonable delay, the Company
and the Guarantor shall prepare and the Trustee shall authenticate definitive
Registered Securities of the same Series and containing identical terms and
provisions in exchange for temporary Registered Securities.
(b) Until definitive Unregistered Securities of any Series are
ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate one or more temporary Unregistered Securities, which may have
coupons attached or which may be in the form of a single temporary global
Unregistered Security of that Series. The temporary Unregistered Security or
Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered to one of the Paying
Agents located outside the United States and its possessions or to such other
person or persons as the Company shall direct against such certification as
the Company may from time to time prescribe by or pursuant to a Board
Resolution. The temporary Unregistered Security or Securities of a Series
shall be executed by the Company and the Guarantor and authenticated by the
Trustee, upon the same conditions, and with like effect, as a definitive
Unregistered Security of such Series, except as provided herein or therein.
A temporary Unregistered Security or Securities shall be exchangeable for
definitive Unregistered Securities containing identical terms and provisions
at the time and on the conditions, if any, specified in the temporary
Security.
Upon any exchange of a part of a temporary Unregistered Security of
a Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of definitive Unregistered Securities of such
Series so exchanged and endorsed.
Section 2.13 CANCELLATION.
The Company or the Guarantor at any time may deliver Securities and
coupons to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities and coupons surrendered to them
for registration of transfer, or for exchange, or for payment. Except as
otherwise required by this Indenture, the Trustee shall cancel all Securities
and coupons surrendered for registration of transfer, or for exchange,
payment, or cancellation and will dispose of canceled Securities and coupons
as the Company directs; provided, however, that any Unregistered Securities
of a Series delivered to the Trustee for exchange prior to maturity shall be
retained by the Trustee for reissue as provided herein or in the Securities
of such Series. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
15
Section 2.14 DEFAULTED INTEREST.
If the Company or the Guarantor defaults on a payment of interest
on a Series of Securities, either of them shall pay the defaulted interest as
provided in such Securities or in any lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed.
Section 2.15 GLOBAL SECURITIES.
(a) If the Company shall establish pursuant to Section 2.01 that
the Securities of a particular Series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with
Section 2.03, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Securities of such Series, (ii)
shall be registered in the name of the Depositary or its nominee, (iii) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following
effect: "Except as otherwise provided in Section 2.15 of the Indenture, this
Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of
such successor Depositary."
(b) Notwithstanding the provisions of Section 2.08, the Global
Security of a Series may be transferred, in whole but not in part and in the
manner provided in Section 2.08, only to another nominee of the Depositary
for such Series, or to a successor Depositary for such Series selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a Series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such Series or if at any time the Depositary for such Series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such Series
is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this
Section 2.15 shall no longer be applicable to the Securities of such Series
and the Company will execute, and subject to Section 2.08, the Trustee will
authenticate and deliver the Securities of such Series, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such Series in exchange for such Global
Security. In addition, the Company may at any time determine that the
Securities of any Series shall no longer be represented by a Global Security
and that the provisions of this Section 2.15 shall no longer apply to the
Securities of such Series. In such event the Company will execute and
subject to Section 2.08, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such Series, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Security of such Series in exchange for such Global Security. Upon the
exchange of the Global Security for such Securities in authorized
denominations, the Global Security shall be
16
canceled by the Trustee. Such Securities issued in exchange for the Global
Security pursuant to this Section 2.15(c) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to he Persons in whose names such Securities are so
registered.
Section 2.16 UNCONDITIONAL GUARANTEE.
(Form of Guarantee)
FOR VALUE RECEIVED, the Guarantor, hereby unconditionally
guarantees to the Holder of the Security upon which this Guarantee is
endorsed the due and punctual payment of the principal of, sinking funds
payment, if any, premium, if any, or interest on said Security, when and as
the same shall be become due and payable, whether at maturity, upon
redemption or otherwise, according to the terms thereof and of the Indenture
referred to therein.
The Guarantor agrees to determine, at least one business day prior
to the date upon which a payment of principal of, sinking fund payment, if
any, premium, if any, or interest on said Security is due and payable,
whether the Company has available the funds to make such payment as the same
shall become due and payable. In case of the failure of the Company
punctually to pay any such principal, sinking fund payment, if any, premium,
if any, or interest, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether
at maturity, upon redemption, or otherwise, and as if such payment were made
by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security or said Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of
said Security with respect to any provisions thereof, the recovery of any
judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to said Security or
indebtedness evidenced thereby, and all demands whatsoever and covenants that
this Guarantee will not be discharged except by complete performance of the
obligations contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of
said Security against the Company in respect to any amounts paid by the
Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not, without the consent of the Holders of all of
the Securities then outstanding, be entitled to enforce or to receive any
payments arising out of or based upon such right of subrogation until the
principal of and premium, if any, and interest on all Securities shall have
been paid in full or payment thereof shall have been provided for in
accordance with said
17
Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the
Securities to the Holders of the Securities it is determined by a final
decision of a court of competent jurisdiction that such payment shall be
avoided by a trustee in bankruptcy (including any debtor-in-possession) as a
preference under 11 U.S.C. Section 547 and such payment is paid by such
Holder to such trustee in bankruptcy, then and to the extent of such
repayment the obligations of the Guarantor hereunder shall remain in full
force and effect.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to a Security until a certificate of authentication on
such Security shall have been signed by the Trustee (or the authenticating
agent).
This Guarantee shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, U S WEST, Inc. has caused this Guarantee to be
signed in its corporate name by the facsimile signature of two of its
officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted or otherwise reproduced
hereon.
Section 2.17 EXECUTION OF GUARANTEES.
To evidence the Guarantee to the Securityholders specified in
Section 2.16, the Guarantor hereby agrees to execute the Guarantees, in
substantially the form above recited, to be endorsed on each Security
authenticated and delivered by the Trustee (or the authentication agent).
Each such Guarantee shall be signed on behalf of the Guarantor as set forth
in Section 2.03 prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee (or the
authenticating agent), after the authentication thereof hereunder, shall
constitute due delivery of such Guarantee on behalf of the Guarantor.
Section 2.18 ASSUMPTION BY GUARANTOR.
(a) The Guarantor may, without the consent of the Securityholders,
assume all of the rights and obligations of the Company hereunder with
respect to a Series of Securities and under the Securities of such Series if,
after giving effect to such assumption, no Default or Event of Default shall
have occurred and be continuing. Upon such an assumption, the Guarantor
shall execute a supplemental indenture evidencing its assumption of all such
rights and obligations of the Company and the Company shall be released from
its liabilities hereunder and under such Securities as obligor on the
Securities of such Series.
(b) The Guarantor shall assume all of the rights and obligations
of the Company hereunder with respect to a Series of Securities and under the
Securities of such Series if, upon a default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities,
18
the Guarantor is prevented by any court order or judicial proceeding from
fulfilling its obligations under Section 2.15 with respect to such Series of
Securities. Such assumption shall result in the Securities of such Series
becoming the direct obligations of the Guarantor and shall be effected
without the consent of the Holders of the Securities of any Series. Upon
such an assumption, the Guarantor shall execute a supplemental indenture
evidencing its assumption of all such rights and obligations of the Company,
and the Company shall be released from its liabilities hereunder and under
such Securities as obligor on the Securities of such Series.
ARTICLE 3.
REDEMPTION
Section 3.01 NOTICE TO THE TRUSTEE.
The Company may, with respect to any Series of Securities, reserve
the right to redeem and pay the Series of Securities or any part thereof, or
may covenant to redeem and pay the Series of Securities or any part thereof,
before maturity at such time and on such terms as provided for in such
Securities. The election of the Company to redeem any Securities shall be
evidenced by a Company Order. In case of any redemption at the election of
the Company of all or less than all of the Securities of any Series with the
same issue date, interest rate, and stated maturity, the Company shall, at
least 60 days prior to the redemption date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such redemption date and of the principal amount and redemption price of
Securities of such Series to be redeemed.
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any Series with the same issue
date, interest rate, and stated maturity are to be redeemed, the particular
Securities to be redeemed shall be selected, not more than 60 days prior to
the redemption date, by the Trustee from the outstanding Securities of such
Series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Securities of such Series;
provided, however, that no such partial redemption shall reduce the portion
of the principal amount of a Security of such Series not redeemed to less
than the minimum denomination for a Security of that Series established
pursuant to Section 2.02. The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption by it and, in the case of
any Securities selected for partial redemption, the amount thereof to be
redeemed.
Section 3.03 NOTICE OF REDEMPTION.
(a) At least 30 days, but not more than 90 days before a
redemption date, unless a shorter period is specified in the Securities to be
redeemed, the Company shall mail a notice of redemption by first-class mail
to each Holder of Registered Securities that are to be redeemed.
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(b) If Unregistered Securities are to be redeemed, notice of
redemption shall be published in an Authorized Newspaper in each of The City
of New York, London, and, if such Securities to be redeemed are listed on the
Luxembourg Stock Exchange, Luxembourg once in each of four successive
calendar weeks, the first publication to be not less than 30 nor more than 90
days before the redemption date.
(c) All notices shall identify the Series of Securities to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for redemption and
all unmatured coupons, if any, appertaining thereto must be surrendered to
the Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
If the Company gives the notice of redemption, the Company shall
promptly provide the Trustee with evidence satisfactory to the Trustee of its
compliance with the notice requirements of this section.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published, Securities of a
Series called for redemption become due and payable on the redemption date
and from and after such date (unless the Company shall default in the payment
of the redemption price) such Securities shall cease to bear interest. Upon
surrender to the Paying Agent of such Securities together with all unmatured
coupons, if any, appertaining thereto, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date, but
installments of interest due on or prior to the redemption date will be
payable, in the case of Unregistered Securities, to the bearers of the
coupons for such interest upon surrender thereof, and, in the case of
Registered Securities, to the Holders of such Securities of record at the
close of business on the relevant record dates.
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Section 3.05 DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with
the Trustee or the Paying Agent money sufficient to pay the redemption price
of and (unless the redemption date shall be an interest payment date)
interest accrued to the redemption date on all Securities to be redeemed on
that date.
Section 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee or the authenticating agent shall authenticate
for the Holder of that Security a new Security or Securities of the same
Series, the same form, and the same maturity in authorized denominations
equal in aggregate principal amount to the unredeemed portion of the Security
surrendered and having endorsed thereon a duly executed Guarantee.
ARTICLE 4.
COVENANTS
Section 4.01 PAYMENT OF SECURITIES.
(a) The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided herein and in the
Securities. An installment of principal or interest shall be considered paid
on the date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay the installment.
(b) The Company shall pay interest on overdue principal of a
Security of any Series at the rate of interest (or Yield to Maturity in the
case of Original Issue Discount Securities) borne by such Security of that
Series; to the extent lawful, it shall pay interest on overdue installments
of interest at the same rate.
Section 4.02 REPORTS BY THE GUARANTOR.
The Guarantor covenants:
(a) To file with the Trustee, within 15 days after the Guarantor
is required to file the same with the SEC, copies of the annual reports and
of the information, documents and other reports (or copies of such portions
of any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Guarantor may be required to file with the
SEC pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, or, if the Guarantor is not required to file information,
documents or reports pursuant to either of such sections, to file with the
Trustee and the SEC, in accordance with rules and regulations prescribed from
time to time by the SEC, such of the supplementary and periodic information,
documents, and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security listed
and registered on a national securities
21
exchange as may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the SEC, in accordance with the
TIA or the rules and regulations prescribed from time to time by the SEC,
such additional information, documents, and reports with respect to
compliance by the Guarantor with the conditions and covenants provided for in
this Indenture as may be required from time to time by the TIA or such rules
and regulations; and
(c) to transmit by mail to all Holders of Registered Securities,
as the names and addresses of such Holders appear on the register for each
Series of Securities, and to such Holders of Unregistered Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Guarantor pursuant to subsections (a) and
(b) of this Section 4.02 as may be required by rules and regulations
prescribed from time to time by the SEC.
Section 4.03 LIEN ON ASSETS.
If at any time the Company mortgages, pledges or otherwise subjects
to any lien the whole or any part of any property or assets now owned or
hereafter acquired by it, except as hereinafter provided in this Section
4.03, the Company will secure the outstanding Securities, and any other
obligations of the Company which may then be outstanding and entitled to the
benefit of a covenant similar in effect to this covenant, equally and ratably
with the indebtedness or obligations secured by such mortgage, pledge, or
lien, for as long as any such indebtedness or obligation is so secured. The
foregoing covenant does not apply (i) to the creation, extension, renewal or
refunding of (a) mortgages or liens created or existing at the time property
is acquired, (b) mortgages or liens created within 180 days thereafter, or
(c) mortgages or liens for the purpose of securing the cost of construction
or improvement of property; or (ii) to the making of any deposit or pledge to
secure public or statutory obligations or with any governmental agency at any
time required by law in order to qualify the Company to conduct its business
or any part thereof in order to entitle it to maintain self-insurance or to
obtain the benefits of any law relating to workmen's compensation,
unemployment insurance, old age pensions or other social security, or with
any court, board, commission, or governmental agency as security incident to
the proper conduct of any proceeding before it. Nothing contained in this
Indenture prevents any entity other than the Company from mortgaging,
pledging, or subjecting to any lien any of its property or assets, whether or
not acquired from the Company or the Guarantor.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company may consolidate with, or merge into, or be merged into,
or transfer or lease its properties and assets substantially as an entirety
to, any person
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provided (i) that the person is a corporation which assumes by supplemental
indenture all the obligations of the Company under the Securities and any
coupons appertaining thereto and under this Indenture; and (ii) that after
giving effect thereto, no Default or Event of Default shall have occurred and
be continuing. Thereafter, all such obligations of the Company shall
terminate.
Section 5.02 WHEN THE GUARANTOR MAY MERGE, ETC.
The Guarantor may consolidate with, or merge into, or be merged
into, or transfer or lease its properties and assets substantially as an
entirety to, any person provided (i) that the person is a corporation which
assumes by supplemental indenture all the obligations of the Guarantor under
the Guarantees and under this Indenture; and (ii) that after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing. Thereafter, all such obligations of the Guarantor shall
terminate.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to the Securities of any
Series if:
(1) the Company or the Guarantor default in the payment of
interest on any Security of that Series when the same becomes due and payable
and the Default continues for a period of 90 days;
(2) the Company or the Guarantor default in the payment of the
principal of any Security of that Series when the same becomes due and
payable at maturity, upon redemption, or otherwise;
(3) the Company or the Guarantor fail to comply with any of its
other agreements in the Securities of that Series, in this Indenture, or in
any supplemental indenture under which the Securities of that Series may have
been issued, and the Default continues for the period and after the notice
specified below;
(4) the Company or the Guarantor, pursuant to or within the
meaning of any Bankruptcy Law:
(a) commence a voluntary case,
(b) consent to the entry of an order for relief
against it in an involuntary case,
(c) consent to the appointment of a Custodian of
it or for all or substantially all of its property, or
23
(d) make a general assignment for the benefit of
its creditors; or
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that:
(a) is for relief against the Company or the Guarantor in an
involuntary case,
(b) appoints a Custodian of the Company or the Guarantor, or
for all or substantially all of its property, or
(c) orders the liquidation of the Company or the Guarantor,
and the order or decree remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator, or similar official under any
Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of all the
outstanding Securities of that Series notify the Company or the Guarantor
(and the Trustee in the case of notification by such Holders) of the Default
and the Company or the Guarantor, as the case may be, does not cure the
Default within 90 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied, and state that the notice is a
"Notice of Default."
Section 6.02 ACCELERATION.
If an Event of Default occurs with respect to the Securities of any
Series and is continuing, the Trustee, by notice to the Company and the
Guarantor, or the Holders of at least 25% in principal amount of all of the
outstanding Securities of that Series, by notice to the Company, the
Guarantor, and the Trustee, may declare the principal (or, if the Securities
of that Series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that Series) of all the
Securities of that Series to be due and payable. Upon such declaration, such
principal (or, in the case of Original Issue Discount Securities, such
specified amount) shall be due and payable immediately. The Holders of a
majority in principal amount of all of the Securities of that Series, by
notice to the Trustee, may rescind such a declaration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
Section 6.03 OTHER REMEDIES AVAILABLE TO TRUSTEE.
(a) If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of or
interest on the Securities of the Series that is in default or to enforce the
performance of any provision of
24
the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available remedies are
cumulative.
Section 6.04 WAIVER OF EXISTING DEFAULTS.
The Holders of a majority in principal amount of any Series of
Securities by notice to the Trustee may waive an existing Default with
respect to that Series and its consequences, except a Default in the payment
of the principal of or interest on any Security.
Section 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities of each
Series affected (with each such Series voting as a class) may direct the
time, method, and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it. However,
the Trustee may refuse to follow any direction that conflicts with law or
this Indenture or that would involve the Trustee in personal liability.
Section 6.06 LIMITATION ON SUITS BY SECURITYHOLDERS.
A Securityholder may pursue a remedy with respect to this Indenture or
the Securities of any Series only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities
of that Series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability, or expense to be, or which may
be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60 day period, the Holders of a majority in principal
amount of the Securities of that Series do not give the Trustee a direction
inconsistent with the request.
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A Securityholder of any Series may not use this Indenture to prejudice
the rights of another Securityholder of that Series or any other Series or to
obtain a preference or priority over another Securityholder of that Series or
any other Series.
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment or principal of and interest on the
Security, on or after the respective due dates expressed in the Security, and
the right of any Holder of a coupon to receive payment of interest due as
provided in such coupon, or to bring suit for the enforcement of any such
payment, on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.08 COLLECTION SUITS BY TRUSTEE.
If a Default specified in Section 6.01(1) or (2) occurs and continues
for the period specified therein, if any, the Trustee may recover judgment in
its own name and as trustee of an express trust against the Company or the
Guarantor for the whole amount of such principal and interest then in default.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
and the Securityholders allowed in any judicial proceedings relating to the
Company, the Guarantor or their creditors or property.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for the benefit
of which such money has been collected for amounts due and unpaid on such
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: to the person or persons lawfully entitled thereto, or as a
court of competent jurisdiction may direct.
The Trustee may fix a record date (with respect to Registered
Securities) and payment date for any such payment to Holders of Securities.
Any such record date shall not be less than 10 days nor more than 60
days
26
prior to the applicable payment date.
Section 6.11. UNDERTAKING FOR COSTS.
If any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable attorneys' fees against
any party litigant in this suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07, or a suit by Holders of more than 10% in principal amount of
the Securities of any Series.
ARTICLE 7.
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights, duties and powers under this Indenture and use the
same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon notices, certificates, opinions
or other documents furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
notices, certificates, opinions or other documents to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section;
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
27
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.04 and 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b), and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability, or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company or the Guarantor.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel or require an Officers' Certificate or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on a Board Resolution, the written advice of counsel
acceptable to the Company, the Guarantor, and the Trustee, a certificate of
an Officer or Officers delivered pursuant to Section 2.02(b), an Officers'
Certificate, or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) Except as otherwise provided in Section 7.01, the Trustee shall not
be liable for any action or omission of any Agent which is not the Trustee.
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company, or one of
its Affiliates with the same rights it would have if it were not Trustee,
subject to Sections 7.10 and 7.11. Any Agent may do the same with like
rights.
Section 7.04 TRUSTEE'S DISCLAIMER.
28
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities or the Guarantees. It shall not be
accountable for the Company's use of the proceeds from the Securities or for
monies paid over to the Company or by the Company to any Holders or to any
Paying Agent pursuant to the Indenture, and it shall not be responsible for
any statement in the Securities other than its certificate of authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to the Securities of
any Series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Security of that Series entitled to receive reports pursuant to
Section 4.02(c) (and, if Unregistered Securities of that Series are
outstanding, shall cause to be published at least once in an Authorized
Newspaper in each of The City of New York, London, and, if Securities of that
Series are listed on The Luxembourg Stock Exchange, Luxembourg) notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment on the Securities of any Series, the Trustee may withhold the notice
if and so long as its Corporate Trust Committee or a committee of its
Responsible Officers in good faith determines that withholding such notice is
in the interests of Securityholders of that Series.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each anniversary date of the first issue of a
Series of Securities, the Trustee shall mail to each Securityholder of that
Series entitled to receive reports pursuant to Section 4.02(c) a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section 313(b).
(b) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and with
each stock exchange on which the Securities of that Series are listed. The
Company shall provide written notice to the Trustee when the Securities of
any Series are listed on any stock exchange.
Section 7.07 COMPENSATION AND INDEMNITY.
(a) The Company and the Guarantor shall pay to the Trustee from time to
time reasonable compensation for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company and the Guarantor shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in
connection with the performance of its duties under this Indenture. Such
expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
(b) The Company and the Guarantor shall indemnify the Trustee against
any loss or liability incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder. The Trustee
shall notify the Company and
29
the Guarantor promptly of any claim for which it may seek indemnity. The
Company and the Guarantor shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the
Company and the Guarantor shall pay the reasonable fees and expenses of such
counsel. Neither the Company nor the Guarantor need pay for any settlement
made without its consent.
(c) Neither the Company nor the Guarantor need reimburse any
expense or indemnify against any loss of liability incurred by the Trustee
through negligence or bad faith.
(d) To secure the payment obligations of the Company and the
Guarantor pursuant to this Section, the Trustee shall have a lien prior to
the Securities of any Series on all money or property held or collected by
the Trustee, except that held in trust to pay principal and interest on
particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(4) or (5) occurs, such expenses
and the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the appointment
of a successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any
Series by so notifying the Company and the Guarantor. The Holders of a
majority in principal amount of the Securities of any Series may remove the
Trustee with respect to that Series by so notifying the Trustee, the Company,
and the Guarantor and may appoint a successor Trustee for such Series with
the Company's and the consent of the Guarantor.
(c) The Company and the Guarantor may remove the Trustee with
respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
In addition, the Company and the Guarantor may remove the Trustee
with respect to Securities of any Series without cause if the Company and the
Guarantor give written notice to the Trustee of such proposed removal at
least six months in advance of
30
the proposed effective date of such removal; provided, however, that such
removal shall not become effective if a Default exists on the date of the
giving of such notice or occurs prior to the date such removal is scheduled
to become effective.
(d) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to Securities of any
Series, the Company and the Guarantor shall promptly appoint a successor
Trustee for such Series.
(e) If a successor Trustee with respect to the Securities of any
Series does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, the Guarantor, or the
Holders of a majority in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(f) If the Trustee with respect to the Securities of any Series
fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of
such Trustee and the appointment of a successor Trustee.
(g) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Guarantor, and the Company.
Thereupon, the resignation or removal of the retiring Trustee for any Series
of Securities shall become effective, and the successor Trustee shall have
all the rights, powers, and duties of the retiring Trustee with respect to
all Series of Securities for which the successor Trustee is to be acting as
Trustee under this Indenture. The retiring Trustee shall promptly transfer
all property held by it as Trustee with respect to such Series of Securities
to the successor Trustee subject to the lien provided for in Section 7.07.
The Company shall give notice of each appointment of a successor Trustee for
any Series of Securities by publishing notice of such event once in an
Authorized Newspaper in each of The City of New York, London, and, if
Securities of that Series are listed on The Luxembourg Stock Exchange,
Luxembourg, and by mailing written notice of such event by first-class mail
to the Holders of Securities of such Series entitled to receive reports
pursuant to Section 4.02(c).
(h) All provisions of this Section 7.08 except subparagraphs (c)(1)
and (d) and the words "subject to the lien provided for in Section 7.07" in
subparagraph (g) shall apply also to any Paying Agent located outside the
U.S. and its possessions and required by Section 2.04.
(i) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) Series, the
Company, the Guarantor, the retiring Trustee, and such successor Trustee
shall execute and deliver a supplemental indenture wherein such successor
Trustee shall accept such appointment, and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, such successor Trustee all the rights, powers, trusts, and duties
of the retiring Trustee with respect to the Securities of that or those
Series to which the appointment of such successor Trustee relates; (2) if the
retiring Trustee is not retiring
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with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those Series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee; and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
Section 7.09 SUCCESSOR TRUSTEE, AGENTS BY MERGER, ETC.
If the Trustee or any Agent consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business
assets to, another corporation, the successor corporation, without any
further act, shall be the successor Trustee or Agent, as the case may be.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee with respect to each
Series of Securities who satisfies the requirements of TIA Section 310(a)(1).
The Trustee shall always have a combined capital and surplus of at least
$10,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b), including the
optional provision permitted by the second sentence of TIA Section 310(b)(9),
except that there shall be excluded from the operation of TIA Section
310(b)(1) each Series of Securities and all indentures of the Company, the
Guarantor, or any of their Affiliates now or hereafter existing which may be
excluded under the proviso of TIA Section 310(b)(1).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.01 TERMINATION OF THE COMPANY'S AND THE GUARANTOR'S
OBLIGATIONS.
(a) The Company and the Guarantor reserve the right to terminate
all of their obligations under the Securities and this Indenture with respect
to the Securities of any Series or any installment of principal and premium,
if any, or interest on that Series if the Company and the Guarantor
irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations sufficient to pay, when due, principal, premium, if any, and
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interest on the Securities of that Series to maturity or redemption or such
installment of principal and premium, if any, or interest, as the case may
be, and if all other conditions set forth in the Securities of that Series
are met. The Company or the Guarantor shall designate the installment or
installments of principal or interest to be so satisfied.
(b) However, the Company's and the Guarantor's obligations in
Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 7.07, 7.08, 8.03 and 8.04
shall survive until the Securities are no longer outstanding. Thereafter,
the Company's obligations in Sections 7.07, 8.03 and 8.04 shall survive.
(c) Before or after a deposit, the Company or the Guarantor may
make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
(d) After a deposit by the Company or the Guarantor in accordance
with this Section in respect of the Securities of a Series, the Trustee upon
request shall acknowledge in writing the discharge of the Company's and the
Guarantor's obligations under the Securities of the Series in respect of
which the deposit has been made and under this Indenture with respect to the
Securities of that Series except for those surviving obligations specified
above.
(e) In order to have money available on a payment date to pay
principal of and premium, if any, or interest on the Securities of any
Series, the U.S. Government Obligations shall be payable as to principal of
or interest on or before such payment date in such amounts as will provide
the necessary money. U.S. Government Obligations shall not be callable at
the issuer's option.
(f) "U.S. Government Obligations" means:
(i) direct obligations of the United States of America for
the payment of which the full faith and credit of the United States of
America is pledged; or
(ii) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
Section 8.02 APPLICATION OF TRUST MONEY.
The Trustee shall hold money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited
money and the money from U.S. Governmental Obligations through the Paying
Agent and in accordance with this Indenture to the payment of principal of
and interest on the Securities of each Series in respect of which the deposit
shall have been made.
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Section 8.03 REPAYMENT TO THE COMPANY OR THE GUARANTOR.
(a) Subject to the provisions of Section 7.07(d), the Trustee and
the Paying Agent shall promptly pay to the Company or the Guarantor, as the
case may be, upon request, any money or securities held by them at any time
in excess of that required for the payment of principal, premium, if any, or
interest on the Securities.
(b) The Trustee and the Paying Agent shall promptly pay to the
Company or the Guarantor, as the case may be, upon request, any money held by
them for the payment of principal or interest that remains unclaimed for two
years. After that, Securityholders entitled to the money must look to the
Company and the Guarantor for payment as general creditors unless an
abandoned property law designates another person. Upon payment to the
Company, or the Guarantor, the Trustee and Paying Agent are released of any
further obligation or liability with respect to the utilization of such
moneys.
Section 8.04 INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company and the Guarantor shall pay and shall indemnify the
Trustee and each Securityholder of each Series in respect of which the
deposit shall have been made against any tax, fee, or other charge imposed on
or assessed against deposited U.S. Government Obligations or the principal
and interest received on such obligations.
ARTICLE 9.
AMENDMENTS AND WAIVERS
Section 9.01 WITHOUT CONSENT OF HOLDERS.
The Company, the Guarantor, and the Trustee may enter into one or
more supplemental indentures without consent of any Securityholder for any of
the following purposes:
(1) to cure any ambiguity, defect, or inconsistency herein, in the
Securities of any Series or in the Guarantees;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to add to the covenants of the Company and the Guarantor for
the benefit of the Holders of all or any Series of Securities (and if such
covenants are to be for the benefit of less than all Series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such Series) or to surrender any right or power herein conferred
upon the Company;
(5) to add to, delete from, or revise the conditions, limitations,
and
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restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(6) to secure the Securities pursuant to Section 4.03.
(7) to make any change that does not adversely affect the rights of
any Securityholder in any material respect; or
(8) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series and the Guarantees as provided in
Section 2.02, to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or any Series of Securities,
or to add to the rights of the Holders of any Series of Securities.
Section 9.02 WITH CONSENT OF HOLDERS.
(a) With the written consent of the Holders of a majority in
principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company, the
Guarantor, and the Trustee may enter into a supplemental indenture to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any supplemental indenture or to modify, in each case in any manner not covered
by Section 9.01, the rights of the Securityholders of each such Series. The
Holders of a majority in principal amount of the outstanding Securities of each
Series affected by such waiver (with each Series voting as a class), by notice
to the Trustee, may waive compliance by the Company or the Guarantor with any
provision of this Indenture, any supplemental indenture, or the Securities of
any such Series, except a Default in the payment of the principal of or interest
on any Security. However, without the consent of each Securityholder affected,
an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment or waiver;
(2) change the rate of or change the time for payment of
interest on any Security;
(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or
interest on any Security;
(5) make any Security payable in money other than that stated in
the Security; or
(6) make any change in Section 6.04, 6.07, or 9.02(a) (third
sentence).
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(b) It is not necessary under this Section 9.02 for the
Securityholders to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company, the Guarantor, and
the Trustee of any supplemental indenture pursuant to the provisions of this
Section 9.02, the Company shall transmit by mail a notice, setting forth in
general terms the substance of such supplemental indenture, to all Holders of
Registered Securities, as the names and addresses of such Holders appear on the
register for each Series of Securities, and to such Holders of Unregistered
Securities as are entitled to receive reports pursuant to Section 4.02(c). Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture that complies with the TIA
as then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security even if a notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security if the Trustee receives a
written notice of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or wavier.
Section 9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee shall place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated. The Company, in
exchange for Securities of that Series may issue and the Trustee shall
authenticate new Securities of that Series that reflect the amendment or waiver.
Section 9.06 TRUSTEE PROTECTED.
The Trustee need not sign any supplemental indenture that adversely
affects its rights or obligations.
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ARTICLE 10.
SINKING FUNDS
Section 10.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any Series is herein referred to as "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such Series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
Series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 10.02. Each sinking fund payment shall be applied to the
redemption of Securities of any Series as provided for by the terms of
Securities of such Series.
Section 10.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such Series to be made pursuant
to the terms of such Securities as provided for by the terms of such Series (1)
deliver outstanding Securities of such Series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), and (2) apply as a credit
Securities of such Series which have been redeemed either at the election of the
Company pursuant to the terms of such Series of Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, provided that such Series of Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities of any Series in lieu of cash payments pursuant to this
Section 10.02, the principal amount of Securities of such Series to be redeemed
in order to exhaust the aforesaid cash payment shall be less than $500,000, the
Trustee shall not call Securities of such Series for redemption, except upon
Company Order, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that Series purchased by the Company having an
unpaid principal amount equal to the cash payment required to be released to the
Company.
Section 10.03 REDEMPTION OF SECURITIES FOR SINKING FUND.
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Not less than 60 days prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuring mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash, and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 10.02, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date, the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.03. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.04, 3.05 and 3.06.
ARTICLE 11.
MISCELLANEOUS
Section 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
a provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
Section 11.02 NOTICES.
(a) Any notice or communication by the Company, the Guarantor, or the
Trustee is duly given if in writing and delivered in person or mailed by
certified mail:
if to the Company to:
U S WEST Capital Funding, Inc.
1801 California Street
Denver, Colorado 80202
Attention: Treasurer
if to the Guarantor to:
U S WEST, Inc.
1801 California Street
Denver, Colorado 80202
Attention: Treasurer
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if to the Trustee to:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
(b) The Company, the Guarantor, or the Trustee by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to Section 4.02(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register kept
by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Securities of that or any other Series entitled to receive notice.
(d) If a notice of communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company or the Guarantor mails a notice or communication
to Securityholders, it shall mail a copy to the Trustee and to each Agent at the
same time.
(f) If it shall be impractical in the opinion of the Trustee, the
Guarantor, or the Company to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Section 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or of all Series with respect
to their rights under this Indenture or under the Securities of that Series or
of all Series. The Company, the Guarantor, the Trustee, the Registrar, and
anyone else shall have the protection of TIA Section 312(c).
Section 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantor to the
Trustee to take any action under this Indenture, the Company or the Guarantor
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all
39
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 11.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. The Paying Agent or Registrar may
make reasonable rules and set reasonable requirements for its functions.
Section 11.07 LEGAL HOLIDAYS.
Except as may otherwise be provided in the form of Securities of
any particular Series pursuant to the provisions of this Indenture, a "Legal
Holiday" is a Saturday, Sunday, or a day on which banking institutions are
not required to be open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 11.08 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture, the
Securities, and any coupons appertaining thereto.
Section 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
40
This Indenture may not be used to interpret another indenture,
loan, or debt agreement of the Company or an Affiliate. No such indenture,
loan, or debt agreement may be used to interpret this Indenture.
Section 11.10. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, or stockholder, as such, of the
Company or the Guarantor shall have any liability for any obligations of the
Company or the Guarantor under the Securities or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
Section 11.11. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together
constitute but one instrument.
Section 11.12. CURRENCIES.
Except as may otherwise be provided in the form of Securities of
any particular Series pursuant to the provisions of this Indenture, all
references in this Indenture or in the Securities to "dollars," "$," or any
similar reference shall be to the currency of the United States of America.
ARTICLE 12.
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01 APPLICABILITY OF ARTICLE.
Securities of any Series which are repayable at the option of the
Holders thereof before their stated maturity shall be repaid in accordance
with the terms of the Securities of such Series.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
U S WEST CAPITAL FUNDING, INC.
By:__________________________________
Name:________________________________
Title: ______________________________
(SEAL)
Attest:__________________________________
Name:_____________________________
Title:____________________________
U S WEST, INC.
By:__________________________________
Name:________________________________
Title: ______________________________
(SEAL)
Attest:__________________________________
Name:_____________________________
Title:____________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:__________________________________
Name:________________________________
Title: ______________________________
(SEAL)
Attest:__________________________________
Name:_____________________________
Title:____________________________
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