PURCHASE AGREEMENT
U S WEST COMMUNICATIONS, INC.
$750,000,000
7.20% NOTES DUE NOVEMBER 1, 2004
October 26, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
Chase Securities Inc.
As Representatives of the several
Initial Purchasers named in Schedule I hereto
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sir/Madam:
U S WEST Communications, Inc., a Colorado corporation (the "COMPANY"),
confirms its agreement with the several Initial Purchasers listed in Schedule I
hereto (the "INITIAL PURCHASERS") for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ABN AMRO
Incorporated, Banc of America Securities LLC and Chase Securities Inc. are
acting as representatives (the "REPRESENTATIVES"), with respect to the issue and
sale by the Company and the purchase by the Initial Purchasers, acting severally
and not jointly, of the respective principal amounts set forth in Schedule I of
$750,000,000 aggregate principal amount of the Company's 7.20% Notes due
November 1, 2004 (the "SECURITIES"). The Securities will be issued under an
Indenture dated as of October 15, 1999 (the "INDENTURE"), between the Company
and Bank One Trust Company, NA, as trustee (the "TRUSTEE").
The Securities will have the benefit of a Registration Rights Agreement,
dated as of October 26, 1999 (the "REGISTRATION RIGHTS Agreement"), among the
Company and the Initial Purchasers, pursuant to which the Company has agreed,
for the benefit of the Initial Purchasers and their respective direct and
indirect transferees and assigns, to file a registration statement with the
Securities and Exchange Commission (the "COMMISSION") registering the Securities
or the Exchange Securities (as defined in the Registration Rights Agreement)
under the Securities Act of 1933, as amended (the "SECURITIES ACT") subject to
the terms and conditions therein specified.
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Securities Act, in reliance upon
exemptions therefrom.
Section 1. In connection with the sale of the Securities, the Company has
prepared and delivered to each Initial Purchaser copies of the preliminary
offering memorandum dated October 22, 1999 (the "PRELIMINARY OFFERING
MEMORANDUM") and has prepared and will deliver to each Initial Purchaser, on the
date hereof or the next succeeding day, copies of a final offering memorandum
dated the date hereof (the "FINAL OFFERING MEMORANDUM"), each for use by such
Initial Purchaser in connection with its solicitation of purchases of, or
offering of, the Securities. "OFFERING MEMORANDUM" means, with respect to any
date or time referred to in this Agreement, the most recent offering memorandum
(whether the Preliminary Offering Memorandum or the Final Offering Memorandum,
or any amendment or supplement to either such document), including any exhibits
thereto and the documents incorporated by reference therein, which has been
prepared and delivered by the Company to the Initial Purchasers in connection
with their solicitation of purchases of, or offering of, the Securities.
SECTION 2. SECTION 1. PURCHASE AND OFFERING. The Company hereby agrees with
the Initial Purchasers as follows:
(a) The Company agrees to issue and sell the Securities to the several
Initial Purchasers as hereinafter provided, and each Initial Purchaser, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Initial Purchaser's name in Schedule I hereto at a price (the
"PURCHASE PRICE") equal to 99.21% of their principal amount.
Section 3. (b) The Company understands that the Initial Purchasers intend
(i) to offer privately pursuant to Rule 144A and pursuant to Regulation S under
the Securities Act ("REGULATION S") their respective portions of the Securities
as soon after this Agreement has become effective as in the judgment of the
Initial Purchasers is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Offering Memorandum.
(c) The Company confirms that it has authorized the Initial Purchasers,
subject to the restrictions set forth below, to distribute copies of the
Offering Memorandum in connection with the offering of the Securities.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE INITIAL PURCHASERS. Each
Initial Purchaser hereby severally makes to the Company the following
representations and agreements:
(i) it is a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act; and
(ii) (A) it will not solicit offers for, or offer to sell, the Securities
by any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act ("REGULATION D")) and (B) it will
solicit offers for the Securities only from, and will offer the Securities only
to, persons who it reasonably believes to be (x) in the case of offers
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inside the United States, "qualified institutional buyers" within the meaning of
Rule 144A under the Securities Act and (y) in the case of offers outside the
United States, to persons other than U.S. persons ("FOREIGN PURCHASERS", which
term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust)) that, in each case, in purchasing the Securities are deemed
to have represented and agreed as provided in the Offering Memorandum;
With respect to offers and sales outside the United States, as described in
clause (ii)(B)(y) above, each Initial Purchaser hereby severally represents and
agrees with the Company that:
(i) it understands that no action has been or will be taken by the
Company that would permit a public offering of the Securities, or
possession or distribution of the Offering Memorandum or any other offering
or publicity material relating to the Securities, in any country or
jurisdiction where action for that purpose is required;
(ii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or
has in its possession or distributes the Offering Memorandum or any such
other material, in all cases at its own expense;
(iii) it understands that the Securities have not been and will not be
registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Rule 144A under the Securities Act or pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act;
(iv) it has offered the Securities and will offer and sell the
Securities (x) as part of its distribution at any time and (y) otherwise
until 40 days after the later of the commencement of the offering of the
Securities and the Closing Date (as defined herein), only in accordance
with Rule 903 of Regulation S. Accordingly, neither such Initial Purchaser,
nor any of its Affiliates, nor any persons acting on its behalf has engaged
or will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Securities, and such Initial Purchaser,
its Affiliates and any such persons have complied and will comply with the
offering restrictions requirement of Regulation S;
(v) it agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise prior to 40 days after the closing of the offering, except
in either case in accordance with Regulation S (or Rule 144A,
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if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S"; and
(vi) it agrees that (i) it has not offered or sold Securities and,
prior to six months after the issue date of such Securities, will not offer
or sell any such Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (ii) it has complied and will comply with all applicable provisions
of the Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom, and (iii) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with an issue of Securities to a person who is of a kind described in
Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements)(Exemptions) Order 1996 (as amended) or is a person to whom
such document may otherwise lawfully be issued or passed on.
Terms used in this Section 2 and not otherwise defined in this Agreement
have the meanings given to them by Regulation S.
SECTION 4. SECTION 3. PAYMENT. Payment for the Securities shall be made by
wire transfer in immediately available funds to the account specified by the
Company to the Representatives at 9:00 A.M., New York City time, on November 1,
1999, or at such other time on the same or such other date, not later than the
tenth Business Day after such date, as the Representatives and the Company may
agree upon in writing. The time and date of such payment are referred to herein
as the "CLOSING DATE". As used herein, the term "BUSINESS DAY" means any day
other than a day on which banks are permitted or required to be closed in New
York City.
Payment for the Securities shall be made against delivery (x) with respect
to Securities to be resold to "qualified institutional buyers" by the Initial
Purchasers, to the nominee of The Depository Trust Company for the respective
accounts of the several Initial Purchasers of the Securities of one or more
global notes (collectively, the "RESTRICTED GLOBAL NOTES") representing such
Securities and (y) with respect to Securities to be resold to foreign purchasers
by the Initial Purchasers, to the nominee of The Depository Trust Company for
the respective accounts of the several Initial Purchasers of the Securities of
one or more Regulation S global notes (collectively, the "REGULATION S GLOBAL
NOTES" and, together with the Restricted Global Notes, the "GLOBAL NOTES")
representing such Securities, with any transfer taxes payable in connection with
the transfer to the Initial Purchasers of the Securities duly paid by the
Company. The Global Notes will be made available for inspection by the Initial
Purchasers at the office of ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Initial Purchasers as
follows:
(a) the Offering Memorandum (other than the information concerning Qwest
contained under the caption "Recent Developments-Merger with Qwest-Qwest", as to
which no representation is made) will not, in the form used by the Initial
Purchasers to confirm sales of the Securities and as of the Closing Date,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at such dates, not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser, or on behalf of any Initial Purchaser by the
Representatives, specifically for use therein;
(b) the documents incorporated by reference in the Offering Memorandum (the
"INCORPORATED DOCUMENTS"), when they were filed with the Commission, conformed
in all material respects to the requirements of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and any further documents so filed and incorporated by reference
in the Offering Memorandum, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act,
and will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(c) the financial statements of the Company, together with the related
schedules and notes thereto, included and incorporated by reference in the
Offering Memorandum, present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, shareowner's equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved;
(d) since the respective dates as of which information is given in the
Offering Memorandum, except as otherwise stated therein, (A) there has been no
material adverse change in the financial condition or results of operations of
the Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE
EFFECT"), and (B) there have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries, taken as a
whole;
(e) this Agreement has been duly authorized, executed and delivered by the
Company;
(f) the Indenture has been duly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery by the
Trustee) constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
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(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(g) the Registration Rights Agreement has been duly authorized by the
Company and, when executed and delivered by the Company, will constitute a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except that enforcement of
rights to indemnification and contribution contained therein may be limited by
applicable federal or state laws or the public policy underlying such laws;
(h) the Securities have been duly authorized by the Company and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor as provided in this
Agreement, will constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law), and will be in the form contemplated by, and entitled to the benefits of,
the Indenture;
(i) the Exchange Securities have been duly authorized by the Company and,
when authenticated, issued and delivered in the manner provided for in the
Indenture and issued and delivered in exchange for the Securities in the manner
contemplated in the Registration Rights Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture;
(j) the Securities, the Exchange Securities, the Indenture and the
Registration Rights Agreement will conform in all material respects to the
respective statements relating thereto contained in the Offering Memorandum;
(k) the execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein (including, without limitation, the issuance and
sale of the Securities) and compliance by the
6
Company with its obligations hereunder and thereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (collectively, "AGREEMENTS AND INSTRUMENTS") (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any of its subsidiaries
or, to the best knowledge of the Company, any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a "REPAYMENT EVENT" means any event or condition
which gives the holder of any note, debenture or other evidence of indebtedness
of the Company or any of its subsidiaries (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any such subsidiary;
(l) except as disclosed in the Offering Memorandum, there is not pending
or, to the knowledge of the Company, threatened any action, suit, proceeding,
inquiry or investigation to which the Company or any of its subsidiaries is a
party or to which the assets, properties or operations of the Company or any of
its subsidiaries is subject, before or by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to materially and
adversely affect the assets, properties or operations of the Company and its
subsidiaries, taken as a whole, or the consummation of the transactions
contemplated by this Agreement or the Indenture or the performance by the
Company of its obligations hereunder or thereunder;
(m) the Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, "GOVERNMENTAL
LICENSES") issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect;
(n) none of the Company or any of its affiliates (as defined in Rule 501(b)
of Regulation D) has directly, or through any agent, sold, offered for sale,
solicited offers to buy or otherwise
7
negotiated in respect of, any security (as defined in the Securities Act) which
is or will be integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the offering contemplated
by the Offering Memorandum;
(o) none of the Company, any affiliate of the Company or any person acting
on its or their behalf has offered or sold the Securities by means of any
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, or by means of any directed selling efforts within the
meaning of Rule 902 under the Securities Act, and the Company, any affiliate of
the Company and any person acting on its or their behalf has complied with and
will implement the "offering restrictions" requirements of Regulation S;
(p) the Securities satisfy the requirements set forth in Rule 144A(d)(3)
under the Securities Act;
(q) assuming the accuracy of the representations of the Initial Purchasers
contained in Section 2 hereof, it is not necessary in connection with the offer,
sale and delivery of the Securities in the manner contemplated by this Agreement
to register the Securities under the Securities Act or to qualify an indenture
under the Trust Indenture Act of 1939 (the "TRUST INDENTURE Act"); and
(r) none of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Securities)
will violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation, Regulations T,
U, and X of the Board of Governors of the Federal Reserve System.
SECTION 5. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the several Initial Purchasers as follows:
(i) to deliver to the Initial Purchasers as many copies of the Offering
Memorandum (including all amendments and supplements thereto) as the Initial
Purchasers may reasonably request;
(ii) before distributing any amendment or supplement to the Offering
Memorandum, to furnish to the Representatives a copy of the proposed amendment
or supplement for review and not to distribute any such proposed amendment or
supplement to which the Representatives reasonably object;
(c) if, at any time prior to the earlier of (i) three months from the date
of the Offering Memorandum and (ii) notice by the Representatives to the Company
of the completion of the initial placement of the Securities, any event shall
occur as a result of which the Offering Memorandum as then amended or
supplemented would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to the Initial
Purchasers and to the dealers (whose names and
8
addresses the Representatives will furnish to the Company) to which Securities
may have been sold by the Initial Purchasers on behalf of the Initial Purchasers
and to any other dealers upon request, such amendments or supplements to the
Offering Memorandum as may be necessary to correct such statement or omission or
to effect compliance with law;
(d) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities; PROVIDED that the
Company shall not be required to file a general consent to service of process in
any jurisdiction;
(e) during the period of two years after the date hereof, to furnish to the
Initial Purchasers, as soon as practicable after the end of each fiscal year, a
copy of the Company's annual report to shareholders, if any, for such year, and
to furnish to the Initial Purchasers and to counsel to the Initial Purchasers,
(i) as soon as available, a copy of each report of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from time
to time, such other non-confidential information concerning the Company as the
Initial Purchasers may reasonably request;
(f) during the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, not to, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any of its senior debt securities having a maturity of one year or
more without the prior written consent of the Representatives;
(g) to use the net proceeds received by the Company from the sale of the
Securities pursuant to this Agreement in the manner specified in the Offering
Memorandum under the caption "Use of Proceeds";
(h) if requested by the Representatives, to use its best efforts to cause
the Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(i) to make available to the holders of the Securities no later than 90
days after the end of each fiscal year an annual report (including a balance
sheet and statements of income, shareowner's equity and cash flows of the
Company and its consolidated subsidiaries certified by independent public
accountants) and, no later than 45 days after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending after the
date of the Offering Memorandum), consolidated summary financial information of
the Company and its subsidiaries of such quarter in reasonable detail;
(j) during the period of two years after the Closing Date, the Company will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities which constitute
"restricted securities" under Rule 144 that have been reacquired by any of them;
9
(k) whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder and
under the Registration Rights Agreement, including without limiting the
generality of the foregoing, all fees, costs and expenses (i) of the Company's
counsel, accountants and other advisors and agents, as well as the fees and
disbursements of the Trustee and its counsel, (ii) incident to the preparation,
issuance, execution, authentication and delivery of the Securities, including
any expenses of the Trustee, (iii) incident to the preparation, printing and
distribution of the Offering Memorandum (including all exhibits, amendments and
supplements thereto), (iv) incurred in connection with the registration or
qualification and determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Representatives may designate
(including reasonable fees of counsel for the Initial Purchasers and their
disbursements) and the printing of memoranda relating thereto, (v) in connection
with the approval for trading of the Securities on any securities exchange or
inter-dealer quotation system (as well as in connection with the designation of
the Securities as PORTAL securities, if so requested), (vi) in connection with
the printing (including word processing and duplication costs) and delivery of
this Agreement, the Indenture, any Preliminary and Supplemental Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to Initial
Purchasers and dealers of copies of the Offering Memorandum, including mailing
and shipping, as herein provided and, (vii) payable to rating agencies in
connection with the rating of the Securities, if applicable;
(l) while the Securities remain outstanding and are "restricted securities"
within the meaning of Rule 144(a)(3) and cannot be sold without restriction
under Rule 144(k) under the Securities Act, the Company will, during any period
in which the Company is not subject to Section 13 or 15(d) under the Exchange
Act or is not complying with the reporting requirements thereof, make available
to the purchasers and any holder of Securities in connection with any sale
thereof and any prospective purchaser of Securities and securities analysts, in
each case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act (or any successor
thereto);
(m) the Company will not take any action prohibited by Regulation M under
the Exchange Act, in connection with the distribution of the Securities
contemplated hereby;
(n) none of the Company, any of its affiliates (as defined in Rule 501(b)
under the Securities Act) or any person acting on behalf of the Company or such
affiliate will solicit any offer to buy or offer or sell the Securities by means
of any form of general solicitation or general advertising, including: (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio; and
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising;
(o) none of the Company, any of its affiliates (as defined in Rule
144(a)(1) under the Securities Act) or any person acting on behalf of any of the
foregoing will engage in any directed selling efforts with respect to the
Securities within the meaning of Regulation S under the Securities Act; and
10
(p) none of the Company, any of its affiliates (as defined in Regulation
501(b) of Regulation D under the Securities Act) or any person acting on behalf
of the Company or such affiliate will sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in the
Securities Act) which will be integrated with the sale of the Securities in a
manner which would require the registration under the Securities Act of the
Securities and the Company will take all action that is appropriate or necessary
to assure that its offerings of other securities will not be integrated for
purposes of the Securities Act with the offering contemplated hereby.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE INITIAL PURCHASERS. The
obligations of the several Initial Purchasers to purchase and pay for the
Securities on the Closing Date are subject to the accuracy of the
representations and warranties on the part of the Company contained herein, to
the accuracy of the statements of the officers of the Company made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(s) On the date of this Agreement and on the Closing Date, the
Representatives shall have received executed copies of letters of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, addressed to the Company and the Representatives, substantially in
the forms previously approved by the Representatives.
(b) The Representatives shall have received an opinion or opinions, dated
the Closing Date, of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, to
the effect that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Colorado and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
(ii) The execution, delivery and performance of the Indenture by the
Company have been duly authorized by all necessary corporate action on the
part of the Company. The Indenture has been duly and validly executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the Trustee), constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditor's rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(iii) The Securities, when duly executed and authenticated in the
manner contemplated in the Indenture and issued and delivered to the
Initial Purchasers against payment therefor in accordance with the
provisions hereof, will constitute legal, valid and binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar
11
laws affecting creditor's rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(iv) The Exchange Securities have been duly authorized by the Company
and, when duly executed in the manner contemplated in the Indenture and
issued and delivered in exchange for the Securities in the manner
contemplated in the Registration Rights Agreement, will constitute legal,
valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditor's rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
will be in the form contemplated by, and entitled to the benefits of, the
Indenture.
(v) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all necessary corporate action on the
part of the Company; and this Agreement has been duly and validly executed
and delivered by the Company.
(vi) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's rights and
remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in
a proceeding at law or in equity), and except that enforcement of rights to
indemnification and contribution contained therein may be limited by
applicable federal or state laws or the public policy underlying such laws.
(vii) No consent, approval, authorization or other action by, or
filing or registration with, any federal governmental authority is required
in connection with the execution and delivery by the Company of the
Indenture or the issuance and sale of the Securities to the Initial
Purchasers pursuant to the terms of this Agreement, except such as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Initial Purchasers.
(viii) The statements in the Offering Memorandum under the headings
"Description of Notes", "Exchange Offer; Registration Rights" and "Notice
to Investors" insofar as such statements constitute a summary of certain
provisions of the documents referred to therein, are accurate in all
material respects.
12
(ix) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(x) Based upon the representations, warranties and agreements of the
Company in Sections 4(n), 4(o), 5(n) 5(o) and 5(p) of this Agreement and of
the Initial Purchasers in Section 2 of this Agreement and on the truth and
accuracy of the representations and agreements deemed to be made by the
Company and the purchasers of the Securities contained in the Offering
Memorandum, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers under this Agreement
or in connection with the initial resale of such Securities by the Initial
Purchasers in accordance with Section 2 of this Agreement to register the
Securities under the Securities Act or to qualify the Indenture under the
Trust Indenture Act; provided, however, that such counsel need not express
any opinion with respect to the conditions under which the Securities may
be further resold.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company and of public officials. Such counsel may also rely as to matters of
Colorado law upon the opinion referred to in Section 6(d) without independent
verification.
In addition, such counsel shall state that it has participated in
conferences with representatives of the Company and with the Representatives and
their counsel, at which conferences the contents of the Offering Memorandum and
related matters were discussed; such counsel has not independently verified and
are not passing upon and assume no responsibility for the accuracy, completeness
or fairness of the statements contained in the Offering Memorandum and the
limitations inherent in the examination made by such counsel and the nature and
extent of such counsel's participation in such conferences are such that such
counsel is unable to assume, and does not assume, any responsibility for the
accuracy, completeness or fairness of such statements; however, based upon such
counsel's participation in the aforesaid conferences, no facts have come to its
attention which lead it to believe that the Incorporated Documents (except as to
the financial statements and the notes thereto, and the other financial,
statistical and accounting data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no belief), when they
were filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder or that the Offering Memorandum (except as to the
financial statements and the notes thereto, and the other financial, statistical
and accounting data included or incorporated by reference therein or omitted
therefrom), as of its issue date or at the Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Such opinion may state that it does not address the impact on the opinions
contained therein of any litigation or ruling relating to the divestiture by
American Telephone and Telegraph Company of ownership of its operating telephone
companies (the "DIVESTITURE").
13
(c) The Representatives shall have received from Initial Purchasers'
Counsel an opinion, dated the Closing Date, with respect to the validity of the
Indenture and the Securities, and such other related matters as the Initial
Purchasers may reasonably request. In rendering such opinion, such counsel may
rely as to matters of Colorado law upon the opinion referred to in Section 6(d)
without independent verification.
(d) The Representatives shall have received an opinion or opinions, dated
the Closing Date, of the corporate counsel of the Company, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Colorado and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
(ii) The execution, delivery and performance of the Indenture by the
Company have been duly authorized by all necessary corporate action on the
part of the Company. The Indenture has been duly and validly executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the Trustee), constitutes the legal, valid and binding
agreement of the Company enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditor's rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(iii) The Securities, when duly executed and authenticated in the
manner contemplated in the Indenture and issued and delivered to the
Initial Purchasers against payment therefor in accordance with the
provisions hereof, will constitute legal, valid and binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditor's rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
(iv) The Exchange Securities have been duly authorized by the Company
and, when duly executed in the manner contemplated in the Indenture and
issued and delivered in exchange for the Securities in the manner
contemplated in the Registration Rights Agreement, will constitute legal,
valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditor's rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good
14
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(v) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all necessary corporate action on the
part of the Company; and this Agreement has been duly and validly executed
and delivered by the Company.
(vi) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's rights and
remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in
a proceeding at law or in equity), and except that enforcement of rights to
indemnification and contribution contained therein may be limited by
applicable federal or state laws or the public policy underlying such laws.
(vii) To the best of his knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by
the Company or any of its subsidiaries exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument that is described or referred to in the
Offering Memorandum.
(viii) All state regulatory consents, approvals, authorizations or
other orders (except as to the state securities or Blue Sky laws, as to
which such counsel need express no opinion) legally required for the
execution of the Indenture and the issuance and sale of the Securities to
the Initial Purchasers pursuant to the terms of this Agreement have been
obtained; provided that such counsel may rely on opinions of local counsel
satisfactory to said counsel.
(ix) The enforceability and the legal, valid and binding nature of the
respective agreements and obligations of the Company set forth in the
Indenture, the Registration Rights Agreement, the Securities and the
Exchange Securities (collectively, the "AGREEMENTS") are not affected by,
and the performance of the obligations set forth in such Agreements, the
issuance and sale of the Securities and the consummation of the
transactions contemplated by such Agreements are not prevented or
restricted by, any action, suit, proceeding, order or ruling relating to or
issued or arising as a result of, the Divestiture.
(x) To the best of such counsel's knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation to which
the Company or any of its subsidiaries is a party or to which the assets,
properties or operations of the Company or any of its subsidiaries is
subject, before or by any court or governmental agency or body,
15
domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to materially
and adversely affect the assets, properties or operations thereof or the
consummation of the transactions contemplated by this Agreement, the
Registration Rights Agreement or the Indenture or the performance by the
Company of its obligations hereunder or thereunder.
In rendering such opinion, such counsel may rely as to matters of New York
law upon the opinion referred to in Section 6(b) without independent
verification.
(e) The Representatives shall have received a certificate, on and as of the
Closing Date, of the President or any Vice President and the Treasurer or any
Assistant Treasurer of the Company in which such officers shall state that, to
the best of their knowledge after reasonable investigation, the representations
and warranties of the Company in this Agreement are true and correct as if made
at and as of the Closing Date, that the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and that, subsequent to the date of the
Offering Memorandum, there has been no material adverse change in the financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, except as set forth in or contemplated by the Offering Memorandum.
(f) The Initial Purchasers shall have received prior to the Closing Date a
copy of the Registration Rights Agreement, in the form and substance
satisfactory to the Initial Purchasers, duly executed by the Company, and the
Registration Rights Agreement shall be in full force and effect at the Closing
Date;
The Company will furnish the Initial Purchasers with such conformed copies
of such opinions, certificates, letters and documents as they reasonably
request.
In case any of the conditions specified above in this Section 6 shall not
have been fulfilled, this Agreement may be terminated by the Representatives by
delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in Sections 5(k), 8 and 9 hereof.
SECTION 7. CONDITION OF THE OBLIGATIONS OF THE COMPANY. The obligation of
the Company to sell and deliver the Securities are subject to the following
conditions precedent:
(a) Concurrently with or prior to the delivery of the Securities to each
Initial Purchaser, the Company shall receive the full purchase price specified
in Schedule I hereto to be paid for the Securities.
(b) The written information furnished to the Company by any Initial
Purchaser, or on behalf of any Initial Purchaser by the Representatives,
specifically for use in the Offering Memorandum as contemplated by Section 2 and
Section 8(b) shall be true and accurate in all material respects.
16
In case any of the conditions specified above in this Section 7 shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representatives. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Sections 5(k), 8 and 9 hereof.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Initial Purchaser against any losses, claims, damages or
liabilities, joint or several, to which such Initial Purchaser may become
subject, as incurred, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
will reimburse each Initial Purchaser, as incurred, for any legal or other
expenses reasonably incurred by such Initial Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action or
amounts paid in settlement of any litigation or investigation or proceeding
related thereto if such settlement is effected with the written consent of the
Company; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Initial
Purchaser, or on behalf of any Initial Purchaser by the Representatives,
specifically for use therein.
(b) Each Initial Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, as incurred, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Preliminary Offering Memorandum or the
Final Offering Memorandum or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser, or on behalf of such Initial Purchaser by the
Representatives, specifically for use therein, and will reimburse the Company,
as incurred, for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it
17
from any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party or parties shall not be liable
under this Agreement with respect to any settlement made by any indemnified
party or parties without prior written consent by the indemnifying party or
parties to such settlement.
(d) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Initial Purchasers on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Initial Purchasers. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities
purchased by it were offered exceeds the amount of any damages which such
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Initial Purchasers' obligations
in this subsection (d) to contribute are several in proportion to the
18
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act or the Exchange Act;
and the obligations of the Initial Purchasers under this Section 8 shall be in
addition to any liability which the respective Initial Purchasers may otherwise
have and shall extend, upon the same terms and conditions and to each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act.
SECTION 9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Initial Purchaser, the Company or of any of their
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities. If the purchase of the Securities by the Initial
Purchasers is not consummated for any reason other than a default by one or more
of the Initial Purchasers, the Company shall remain responsible for the expenses
to be paid or reimbursed by them pursuant to Section 5(k), the respective
obligations of the Company and the Initial Purchasers pursuant to Section 8
shall remain in effect, and the Company will reimburse the Representatives for
the reasonable out-of-pocket expenses of the Initial Purchasers, not exceeding
$75,000, and for the fees and disbursements of Initial Purchasers' Counsel, the
Initial Purchasers agreeing to pay such expenses, fees and disbursements in any
other event. In no event will the Company be liable to any of the Initial
Purchasers for damages on account of loss of anticipated profits.
SECTION 10. NOTICES. All communications hereunder will be in writing and,
if sent to the Initial Purchasers will be mailed, delivered or telecopied and
confirmed to the them c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department, or, if sent to the
Company, will be mailed, delivered or telecopied and confirmed to it at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
SECTION 11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no other
person will have any right or obligation hereunder.
SECTION 12. GOVERNING LAW. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York.
SECTION 13. DEFAULT BY INITIAL PURCHASERS. If, on the Closing Date any one
or more of the Initial Purchasers shall fail or refuse to purchase Securities
which it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Securities which such defaulting Initial Purchaser
or Initial Purchasers agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities to be purchased on
such date, the other Initial Purchasers shall be obligated severally in the
proportions that the principal
19
amount of Securities set forth opposite their respective names in Schedule I
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as the Initial Purchasers may specify, to purchase the Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase on such date; PROVIDED that in no event shall the
principal amount of Securities that any Initial Purchaser has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 13 by an amount in
excess of one-tenth of such principal amount of Securities without the written
consent of such Initial Purchaser. If, on the Closing Date any Initial Purchaser
or Initial Purchasers shall fail or refuse to purchase Securities which it or
they have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Securities to be purchased on
such date, and arrangements satisfactory to the Initial Purchasers and the
Company for the purchase of such Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Initial Purchaser or the Company. In any such case either the
Initial Purchasers or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Offering Memorandum or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
Nothing contained in this Section 13 shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company for damages caused by its
default. If other Initial Purchasers are obligated or agree to purchase the
Securities of a defaulting or withdrawing Initial Purchaser, either the
Representatives or the Company may postpone the Closing Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or Initial Purchasers' Counsel may be necessary in the Offering
Memorandum or in any other document or arrangement.
SECTION 14. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company,
if after the execution and delivery of this Agreement and prior to the Closing
Date (i) there has been, since the respective dates as of which information is
given in the Offering Memorandum, any change in the financial condition of the
Company and its subsidiaries, taken as a whole, or in the earnings, affairs or
business prospects of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, the effect of which
is, in the judgment of the Representatives, so material and adverse as to make
it impracticable to market the Securities or enforce contracts for the sale
thereof, (ii) trading in the Company's securities shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iii) a banking moratorium
shall have been declared either by federal or New York State authorities, (iv)
there shall have occurred any material adverse change in the financial markets
of the United States or any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities
20
or enforce contracts for the sale thereof, or (v) any rating of any debt
securities of the Company shall have been lowered by ▇▇▇▇▇'▇ Investors Services,
Inc. ("MOODY'S") or Standard & Poor's Ratings Services ("S&P") or either Moody's
or S&P shall have publicly announced that it has any such debt securities under
consideration for possible downgrade.
SECTION 15. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
21
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Company and the Initial Purchasers in
accordance with its terms.
Very truly yours,
U S WEST COMMUNICATIONS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name:
Title:
The foregoing Purchase Agreement is
hereby confirmed and accepted as of
the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Authorize Signatory
For themselves and as Representatives
of the other Initial Purchasers named
in Schedule I hereto
22
SCHEDULE I
Principal
Amount
of
Name of Initial Purchaser Notes
------------------------- ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ................... $444,150,000
ABN AMRO Incorporated ....................... 79,200,000
Banc of America Securities LLC .............. 79,200,000
Chase Securities Inc. ....................... 79,200,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. ............ 11,700,000
McDonald Investment Inc. .................... 8,850,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ .................. 8,850,000
▇▇▇▇▇▇▇▇ Capital Partners ................... 8,850,000
BNP Capital Markets, LLC .................... 7,500,000
Commerzbank Capital Markets Corporation ..... 7,500,000
RBC Dominion Securities Corporation ......... 7,500,000
TD Securities USA, Inc. ..................... 7,500,000
------------
Total ....................................... $750,000,000
Sch I-1