EXHIBIT 4(a)
U S WEST CAPITAL FUNDING, Inc.,
Issuer,
U S WEST, Inc.,
Guarantor
and
The First National Bank of Chicago,
Trustee
INDENTURE
Dated as of June 29, 1998
Providing for the Issuance of Debt
Securities in Series
of Guaranteed Debt
TIE-SHEET
Reconciliation and tie between Indenture dated as of June 29,
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
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.......................................................... 11
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............................................................. 15
Section 2.15 Global Securities.............................................................. 15
Section 2.16 Unconditional Guarantee.........................................................16
Section 2.17 Execution of Guarantees.........................................................18
Section 2.18 Assumption by Guarantor........................................................18
ARTICLE 3.
REDEMPTION
Section 3.01 Notice to Trustee............................................................. 18
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.................................................... 20
Section 3.06 Securities Redeemed in Part.................................................... 20
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities.......................................................... 20
Section 4.02 Reports by the Guarantor........................................................21
Section 4.03 Lien on Assets................................................................. 21
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01 When the Company May Merge, etc................................................ 22
Section 5.02 When the Guarantor May Merge, etc.............................................. 22
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.............................................................. 22
Section 6.02 Acceleration................................................................... 24
Section 6.03 Other Remedies Available to Trustee............................................ 24
Section 6.04 Waiver of Existing Defaults. .................................................. 24
Section 6.05 Control by Majority............................................................ 24
Section 6.06 Limitation on Suits by Securityholders..........................................25
Section 6.07 Rights of Holders to Receive Payment........................................... 25
Section 6.08 Collection Suits by Trustee.................................................... 25
Section 6.09 Trustee May File Proofs of Claim............................................... 25
Section 6.10 Priorities...................................................................... 26
Section 6.11 Undertaking for Costs........................................................... 26
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee............................................................... 26
Section 7.02 Rights of Trustee............................................................... 27
Section 7.03 Individual Rights of Trustee.................................................... 28
Section 7.04 Trustee's Disclaimer............................................................ 28
Section 7.05 Notice of Defaults.............................................................. 28
Section 7.06 Reports by Trustee to Holders................................................... 28
Section 7.07 Compensation and Indemnity...................................................... 29
Section 7.08 Replacement of Trustee.......................................................... 29
Section 7.09 Successor Trustee, Agents
by Merger, etc............................................................. 31
Section 7.10 Eligibility; Disqualification................................................... 31
Section 7.11 Preferential Collection
of Claims Against the Company............................................. 31
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....................................... 33
Section 8.04 Indemnity for Government Obligations............................................ 33
ARTICLE 9.
AMENDMENTS AND WAIVERS
Section 9.01 Without Consent of Holders...................................................... 33
Section 9.02 With Consent of Holders......................................................... 34
Section 9.03 Compliance with Trust Indenture Act............................................. 35
Section 9.04 Revocation and Effect of Consents............................................... 35
Section 9.05 Notation on or Exchange of Securities........................................... 35
Section 9.06 Trustee Protected............................................................... 35
ARTICLE 10.
SINKING FUNDS
Section 10.01 Applicability of Article....................................................... 36
Section 10.02 Satisfaction of Sinking
Fund Payments with Securities............................................. 36
Section 10.03 Redemption of Securities
for Sinking Fund.......................................................... 36
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls................................................... 37
Section 11.02 Notices........................................................................ 37
Section 11.03 Communication by Holders
with Other Holders........................................................ 38
Section 11.04 Certificate and Opinion as
to Conditions Precedent................................................... 38
Section 11.05 Statements Required in
Certificate or Opinion.................................................... 39
Section 11.06 Rules by Trustee and Agents.................................................... 39
Section 11.07 Legal Holidays................................................................. 39
Section 11.08 Governing Law.................................................................. 39
Section 11.09 No Adverse Interpretation
of Other Agreements....................................................... 39
Section 11.10 No Recourse Against Others..................................................... 40
Section 11.11 Execution in Counterparts...................................................... 40
ARTICLE 12.
REPAYMENT AT THE OPTION OF THE HOLDER
Section 12.01 Applicability of Article 10 ....................................................40
Signatures.....................................................................................41
-----------------
*This Table of Contents does not constitute part of this Indenture.
INDENTURE dated as of June 29, 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.
"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 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 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
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;
(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;
(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 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
(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
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
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 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 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.
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 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.
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 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 the 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
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, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 2.16
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.
(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.
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 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 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
(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 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.
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 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
(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(c), 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.
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 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 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 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
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.
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 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).
(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.
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.
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 and Corporate Counsel
if to the Guarantor to:
U S WEST, Inc.
1801 California Street
Denver, Colorado 80202
Attention: Treasurer and Corporate Counsel
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 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.
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.
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.
/S/ ALLAN R. SPIES
By:_____________________________
Name: Allan R. Spies
Title: President
(SEAL)
/S/ THOMAS O. MCGIMPSEY
Attest: _________________________
Name: Thomas O. McGimpsey
Title: Assistant Secretary
U S WEST, INC.
/S/ ALLAN R. SPIES
By:____________________________
Name: Allan R. Spies
Title: President
(SEAL)
/S/ THOMAS O. MCGIMPSEY
Attest: _________________________
Name: Thomas O. McGimpsey
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
/S/ R. TARNAS
By: ______________________________
Name: R. Tarnas
Title: Vice President
(SEAL)
Attest:
/S/ BARBARA G. GROSSE
Name: Barbara G. Grosse
Title: Vice President and Assistant Secretary