(..continued)
EXHIBIT 4.1
U S WEST CAPITAL FUNDING, INC.
DEBT SECURITIES
UNCONDITIONALLY GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST, BY
U S WEST, INC.
UNDERWRITING AGREEMENT
_________, ____
To the Underwriters Named in Schedule II hereto
c/o the Representatives Named in Schedule I hereto
of the Underwriters Named in Schedule II hereto
Dear Sirs:
Introductory. U S WEST Capital Funding, Inc., a Colorado corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statements referred to in
Section 2(a) (the "Debt Securities"). The Debt Securities will be
unconditionally guaranteed as to payment of principal, premium, if any, and
interest by U S WEST, Inc., a Colorado corporation (the "Guarantor"), and will
be issued under an Indenture, dated as of April 15, 1988 and amended by the
Trust Indenture Reform Act of 1990 (as amended, the "Indenture"), among the
Company, the Guarantor and First National Bank of Santa Fe (formerly
Banquest/First National Bank of Santa Fe), as Trustee (the "Trustee"), in one
or more series which series may vary as to interest rates, maturities,
redemption provisions and selling prices and any other variable terms
permitted by the Indenture, with all such terms for any particular series
being determined at the time of sale. The Company proposes to sell to the
Underwriters (as hereinafter defined) one or more series of Debt Securities,
each of the designation, with the terms and in the aggregate principal amount
specified in Schedule I hereto (the "Securities"). Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and on the other terms set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
its name in Schedule II hereto.
If there shall be two or more persons, firms or corporations named as
underwriters in Schedule II hereto, the term "Underwriters" as used herein
shall be deemed to mean the several persons, firms or corporations so named
(including the Representatives hereinafter mentioned, if so named, and any
Underwriters substituted pursuant to Section 12), and the term
"Representatives" as so used herein shall be deemed to mean the representative
or representatives named in Schedule I hereto. If there shall only be one
person, firm or corporation named in Schedule II hereto, the term
"Underwriters" and the term "Representatives" as used herein shall mean such
person, firm or corporation.
Representations and Warranties of the Company and the Guarantor. The
Company and the Guarantor represent and warrant to, and agree with, the
several Underwriters that as of the date hereof and as of the applicable
Delivery Date (each referred to as a "Representation Date"):
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") joint registration statements (Nos.
33______ and 33-_____) relating to the Debt Securities and the guarantees
thereof of the Guarantor (the "Guarantees") and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Act"), and has filed such amendments thereto as may have been
required to the date hereof. Such registration statements have been declared
effective by the Commission. Such registration statements, as amended or
supplemented to the date hereof (including the documents incorporated by
reference therein), are hereinafter collectively referred to as the
"Registration Statement", and the prospectus constituting a part of such
Registration Statement, as amended and as supplemented as contemplated by
Section 4 to reflect the terms of the Securities and the terms of the offering
thereof, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
On the effective date of the Registration Statement, such Registration
Statement (including the documents incorporated by reference therein)
conformed in all respects to the requirements of the Act, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations (the "Rules and Regulations") of the Commission and did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and on each Representation Date, the Registration Statement
and the Prospectus conforms or will conform in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations
and (i) the Registration Statement, as amended as of any such time, does not
or will not include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus, as supplemented as
of any such time, does not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the foregoing does not apply to
statements in or omissions from any such documents based upon written
information furnished to the Company or the Guarantor by any Underwriter, or
on behalf of any Underwriter by the Representatives, specifically for use
therein or based upon the Statement of Eligibility of the Trustee under the
Indenture or to statements in or omissions from such Statement of Eligibility.
Purchase and Offering. Delivery of and payment for the Securities
shall be made at such address, date and time as may be specified in Schedule I
hereto. Such date and time are sometimes referred to herein as the "Delivery
Date". On the Delivery Date, the Company shall deliver the Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price either by certified or official
bank check or checks payable in New York Clearing House or similar next_day
funds or by wire transfer of immediately available funds, as specified in
Schedule I. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. Upon delivery, the Securities shall be in
registered form and in such authorized denominations and registered in such
names as the Representatives shall request in writing not less than one full
business day prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the Securities, the Company shall make the
Securities available for inspection by the Representatives in New York, New
York, not later than 2:00 P.M., local time, on the business day prior to the
Delivery Date.
Schedule I may set forth additional conditions concerning the purchase or
offering of the Securities, if any.
Covenants of the Company and the Guarantor. The Company and the
Guarantor covenant and agree with the several Underwriters that they will
furnish such firm which shall be acting as counsel for the Underwriters
("Underwriters' Counsel"), one signed copy of the Registration Statement,
including all exhibits, relating to the Debt Securities in the form in which
it became effective and of all amendments thereto and will furnish to the
Representatives copies of the Registration Statement, including all exhibits
and amendments thereto, and that, in connection with each offering of
Securities:
The Company and the Guarantor will promptly prepare a supplement to the
Prospectus to reflect the terms of the Securities and the terms of the
offering thereof and will advise the Representatives promptly of any other
amendment or supplementation of the Registration Statement or the Prospectus
and will not effect any amendment or supplementation without the consent of
the Representatives, which consent shall not be unreasonably withheld; the
Company and the Guarantor will also advise the Representatives of any request
made by the Commission for any amendment to the Registration Statement or
Prospectus or for additional information with respect thereto and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement, and will use their best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued. The Company will not file any document pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which is deemed to be
incorporated by reference in the Prospectus unless Underwriters' Counsel shall
have been previously advised thereof.
If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact, or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend or
supplement the Registration Statement or the Prospectus to comply with the
Act, the Company and the Guarantor promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
The Guarantor and, to the extent separately required pursuant to Rule
158 under the Act, the Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, earnings statements (in form complying with the
provisions of Rule 158) covering a twelve_month period beginning not later
than the first day of the fiscal quarter of the Guarantor and the Company next
following the effective date of the Registration Statement (as defined in Rule
158) with respect to each sale of Securities.
The Company and the Guarantor will furnish to the Representatives
copies of each preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
The Company and the Guarantor will use their best efforts to arrange
for the qualification of the Securities for sale and the determination of
their eligibility for investment under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in effect so
long as required for the distribution.
During the period of five years after the effective date of the
Registration Statement, the Guarantor will furnish to the Representatives and,
upon request, to each of the other Underwriters, as soon as practicable after
the end of each fiscal year, a copy of its annual report to shareholders for
such year, and the Guarantor will furnish to the Representatives and to
Underwriters' Counsel, (i) as soon as available, a copy of each report of the
Guarantor filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Guarantor or the Company as the Representatives may reasonably request.
The Company and the Guarantor will pay all expenses incident to the
performance of their obligations under this Agreement, any expenses (including
fees and disbursements of counsel) incurred in connection with qualifications
of the Securities for sale and determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and the printing of memoranda relating thereto, any fees charged by
investment rating agencies for the rating of the Securities, all expenses
incurred in delivering copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, to
the Underwriters, and the fees and expenses, if any, incurred in connection
with the listing of the Securities on the New York Stock Exchange or any other
national securities exchange.
Neither the Company nor the Guarantor will, without the prior consent
of the Representatives, offer or sell any of its debt securities having a
maturity of more than one year between the commencement of an offering of
Securities and the related Delivery Date.
Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of
the Company and the Guarantor contained herein, to the accuracy of the
statements of the officers of the Company and the Guarantor made pursuant to
the provisions hereof, to the performance by the Company and the Guarantor of
their obligations hereunder and to the following additional conditions
precedent:
On the date of this Agreement and on the Delivery Date, the
Representatives shall have received executed copies of letters of Coopers &
▇▇▇▇▇▇▇ L.L.P., addressed to the Company, the Guarantor and the
Representatives, substantially in the forms previously approved by the
Representatives.
No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company, the Guarantor or any
Underwriter, shall be contemplated by the Commission.
The Representatives shall have received an opinion or opinions, dated
the Delivery Date, of Weil, Gotshal & ▇▇▇▇▇▇, counsel for the Company and the
Guarantor, to the effect that:
The Company is a corporation in good standing, duly incorporated
and validly existing under the laws of the State of Colorado and is authorized
by its Articles of Incorporation to transact the business in which it is
engaged, as set forth in the Prospectus.
The Guarantor is a corporation in good standing, duly incorporated
and validly existing under the laws of the state of its incorporation and is
authorized by its Articles or Certificate of Incorporation to transact the
business in which it is engaged, as set forth in the Prospectus.
The execution, delivery and performance of the Indenture by the
Company and the Guarantor have been duly authorized by all necessary corporate
action on the part of the Company and the Guarantor; the Indenture has been
duly and validly executed and delivered by the Company and the Guarantor and
(assuming the due authorization, execution and delivery by the Trustee),
constitutes the legal, valid and binding agreement of the Company and the
Guarantor enforceable against each of them in accordance with its terms; and
the Indenture has been duly qualified under the Trust Indenture Act.
The Securities, when duly executed and authenticated pursuant to
the Indenture and delivered to the Underwriters against payment therefor in
accordance with the provisions hereof, will constitute legal, valid and
binding obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms.
The Guarantees, when duly executed pursuant to the Indenture and
delivered to the Underwriters in accordance with the provisions hereof, will
constitute legal, valid and binding obligations of the Guarantor enforceable
against the Guarantor in accordance with their terms.
The execution, delivery and performance of this Agreement by the
Company and the Guarantor have been duly authorized by all necessary corporate
action on the part of the Company and the Guarantor; and this Agreement has
been duly and validly executed and delivered by each of the Company and the
Guarantor.
No consent, approval, authorization or other action by, or filing
or registration with, any federal governmental authority is required in
connection with the execution and delivery by the Company or the Guarantor of
the Indenture or the issuance and sale of the Securities and the Guarantees to
the Underwriters pursuant to the terms of this Agreement, except such as have
been obtained or made under the Act and the rules and regulations thereunder
and such as may be required under the Exchange Act and the rules and
regulations thereunder.
The Registration Statement was declared effective under the Act
and, to such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Act and no proceeding
for that purpose has been initiated or threatened by the Commission.
The statements in the Prospectus under the headings "Description
of Debt Securities and Guarantees" and "Description of the
[Debentures][Notes]", insofar as such statements constitute a summary of
certain provisions of the documents referred to therein, are accurate in all
material respects.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible
officers of the Company and the Guarantor and of public officials. Such
counsel may also rely as to matters of Colorado law upon the opinion referred
to in Section 5(e) without independent verification.
In addition, such counsel shall state that it has participated in
conferences with representatives of the Company, the Guarantor and with the
Representatives and their counsel, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were discussed;
such counsel has not independently verified the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus and the limitations inherent in the examination made by such
counsel and the nature and extent of such counsel's participation in such
conferences are such that such counsel is unable to assume, and does not
assume, any responsibility for the accuracy, completeness or fairness of such
statements; however, based upon such counsel's participation in the aforesaid
conferences, nothing has come to its attention which lead it to believe that
the Registration Statement, at the time it became effective, and the
Prospectus and any further amendments and supplements thereto made by the
Company and the Guarantor prior to such Delivery Date (other than the
financial statements and other financial and statistical information contained
therein as to which such counsel need express no belief) did not comply as to
form in all material respects with the applicable requirements of the Act and
the rules and regulations thereunder or that the Registration Statement
(except as to the financial statements and the notes thereto, and the other
financial and statistical data included therein, as to which such counsel need
express no belief), and each amendment thereto, as of its effective date or if
an annual report on Form 10_K has been filed by the Guarantor with the
Commission subsequent to the effectiveness of the Registration Statement, then
at the time of the most recent such filing, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of its issue date or at the Delivery Date, the Prospectus (except as to the
financial statements and the notes thereto, and the other financial and
statistical data included therein, as to which such counsel need express no
belief), and each amendment or supplement thereto contained or contains any
untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion may state that it does not address the impact on the
opinions contained therein of any litigation or ruling relating to the
divestiture by American Telephone and Telegraph Company of ownership of its
operating telephone companies (the "Divestiture").
The Representatives shall have received from Underwriters' Counsel an
opinion, dated the Delivery Date, to the effect specified in clauses (i),
(ii), (iii), (iv), (v), (vi), (viii) and (ix) and the penultimate paragraph of
subsection (c) above, subject to the final paragraph of subsection (c) above,
and with respect to such other matters as the Representatives may reasonable
request. In rendering such opinion, such counsel may rely as to matters of
Colorado law upon the opinion referred to in Section 5(e) without independent
verification.
The Representatives shall have received an opinion or opinions, dated
the Delivery Date, of the General Counsel of the Company or a Senior Attorney
of the Guarantor, to the effect that:
The Company is a corporation in good standing, duly incorporated and
validly existing under the laws of the State of Colorado and is authorized by
its Articles of Incorporation to transact the business in which it is engaged,
as set forth in the Prospectus.
The Guarantor is a corporation in good standing, duly incorporated and
validly existing under the laws of the state of its incorporation and is
authorized by its Articles or Certificate of Incorporation to transact the
business in which it is engaged, as set forth in the Prospectus.
The execution, delivery and performance of the Indenture by the Company
and the Guarantor have been duly authorized by all necessary corporate action
on the part of the Company and the Guarantor; the Indenture has been duly and
validly executed and delivered by the Company and the Guarantor and (assuming
the due authorization, execution and delivery by the Trustee), constitutes the
legal, valid and binding agreement of the Company and the Guarantor
enforceable against each of them in accordance with its terms; and the
Indenture has been duly qualified under the Trust Indenture Act.
The Securities, when duly executed and authenticated pursuant to the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the provisions hereof, will constitute legal, valid and
binding obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms.
The Guarantees, when duly executed pursuant to the Indenture and
delivered to the Underwriters in accordance with the provisions hereof, will
constitute legal, valid and binding obligations of the Guarantor enforceable
against the Guarantor in accordance with their terms.
The execution, delivery and performance of this Agreement by the
Company and the Guarantor have been duly authorized by all necessary corporate
action on the part of the Company and the Guarantor; and this Agreement has
been duly and validly executed and delivered by each of the Company and the
Guarantor.
All state regulatory consents, approvals, authorizations or other
orders (except as to the state securities or Blue Sky laws, as to which such
counsel need express no opinion) legally required for the execution of the
Indenture and the issuance and sale of the Securities and the Guarantees to
the Underwriters pursuant to the terms of this Agreement have been obtained;
provided that such counsel may rely on opinions of local counsel satisfactory
to said counsel.
The enforceability and the legal, valid and binding nature of the
respective agreements and obligations of the Company and the Guarantor set
forth in the Indenture, the Securities and the Guarantees (the "Agreements")
are not affected by, and the performance of the obligations set forth in such
Agreements, the issuance and sale of the Securities and the Guarantees and the
consummation of the transactions contemplated in such Agreements are not
prevented or restricted by, any action, suit, proceeding, order or ruling
relating to or issued or arising as a result of, the Divestiture.
In rendering such opinion, such counsel may rely as to matters of New
York law upon the opinion referred to in Section 5(c) without independent
verification.
The Representatives shall have received a certificate, dated the
Delivery Date, of the President or any Vice President of the Company in which
such officers shall state that, to the best of their knowledge after
reasonable investigation, the representations and warranties of the Company in
this Agreement are true and correct as if made at and as of the Delivery Date,
that the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Delivery
Date, that no stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for that purpose are pending or are
contemplated by the Commission and that, subsequent to the date of the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company, except as set forth in or
contemplated by the Prospectus.
The Representatives shall have received a certificate, dated the
Delivery Date, of the President or any Vice President of the Guarantor in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, the representations and warranties of the Guarantor
in this Agreement are true and correct as if made at and as of the Delivery
Date, that the Guarantor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Delivery Date, that no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for that purpose are
pending or are contemplated by the Commission and that, subsequent to the date
of the most recent financial statements included or incorporated by reference
in the Prospectus, there has been no material adverse change in the financial
position or results of operations of the Guarantor and its subsidiaries, taken
as a whole, except as set forth in or contemplated by the Prospectus.
If the Prospectus contains a discussion of United States federal income
tax considerations with respect to the Securities, the Company shall have
furnished to the Representatives a letter of its United States tax counsel,
dated the Delivery Date, to the effect that (i) the Underwriters may rely on
the opinion of such counsel, filed as an exhibit to the Registration Statement
to the same extent as though it were dated the date of such letter authorizing
reliance, and (ii) such counsel has reviewed the statements in the Prospectus
under the caption "Certain United States Federal Income Tax Considerations"
and, insofar as they are, or refer to, statements of United States law or
legal conclusions, such statements are accurate in all material respects
The Company and the Guarantor will furnish the Underwriters with such
conformed copies of such opinions, certificates, letters and documents as they
reasonably request.
In case any of the conditions specified above in this Section 5 shall not
have been fulfilled, this Agreement may be terminated by the Representatives
by delivering written notice of termination to the Company and the Guarantor.
Any such termination shall be without liability of any party to any other
party except to the extent provided in Sections 4(g), 7 and 8 hereof.
Condition of the Obligations of the Company and the Guarantor. The
obligations of the Company and the Guarantor to sell and deliver the
Securities and the Guarantees are subject to the following conditions
precedent:
No stop order suspending the effectiveness of the Registration
Statement or the Indenture shall have been issued and no proceedings for those
purposes shall have been instituted or, to the knowledge of the Company, the
Guarantor or any Underwriter, shall be contemplated by the Commission.
Concurrently with or prior to the delivery of the Securities and the
Guarantees to each Underwriter, the Company shall receive the full purchase
price specified in Schedule I hereto to be paid for the Securities.
The written information furnished to the Company and the Guarantor by
any Underwriter, or on behalf of any Underwriter by the Representatives,
specifically for use in the Prospectus as contemplated by Section 2 and
Section 7(b) shall be true and accurate in all material respects.
In case any of the conditions specified above in this Section 6 shall not
have been fulfilled, this Agreement may be terminated by the Company or the
Guarantor by delivering written notice of termination to the Representatives.
Any such termination shall be without liability of any party to any other
party except to the extent provided in Sections 4(g), 7 and 8 hereof.
Indemnification and Contribution. (a) The Company and the Guarantor
jointly and severally will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, as incurred, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus supplement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse
each Underwriter, as incurred, for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action or amounts paid in settlement of
any litigation or investigation or proceeding related thereto if such
settlement is effected with the written consent of the Company and the
Guarantor; provided, however, that the Company and the Guarantor will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in any of such documents
in reliance upon and in conformity with written information furnished to the
Company or the Guarantor by any Underwriter, or on behalf of any Underwriter
by the Representatives, specifically for use therein or in reliance upon and
in conformity with the Statement of Eligibility of the Trustee under the
Indenture; and provided, further, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus or preliminary prospectus supplement, the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact
that a copy of the Prospectus (excluding material incorporated therein by
reference) was not sent or given to such person and such Prospectus corrected
any such untrue statement or omission or alleged untrue statement or omission.
Each Underwriter will indemnify and hold harmless the Company and the
Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, as incurred, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or any
related preliminary prospectus supplement, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company or the
Guarantor by such Underwriter, or on behalf of such Underwriter by the
Representatives, specifically for use therein, and will reimburse the Company
and the Guarantor, as incurred, for any legal or other expenses reasonably
incurred by the Company and the Guarantor in connection with investigating or
defending any such loss, claim, damage, liability or action.
Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnifying party or parties shall
not be liable under this Agreement with respect to any settlement made by any
indemnified party or parties without prior written consent by the indemnifying
party or parties to such settlement.
If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a) or (b) above, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor on the one hand and the Underwriters on the other
from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Guarantor on the
one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantor on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor or the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred 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 Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (with the meaning of Section 11 (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
The obligations of the Company and the Guarantor under this Section 7
shall be in addition to any liability which the Company or the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act or
the Exchange Act; and the obligations of the Underwriters under this Section 7
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company and the Guarantor, to each officer of the Company or
the Guarantor who has signed the Registration Statement and to each person, if
any, who controls the Company or the Guarantor within the meaning of the Act
or the Exchange Act.
Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Company, the Guarantor or their officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or the Guarantor
or of any of their officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If the purchase of the
Securities by the Underwriters is not consummated for any reason other than a
default by one or more of the Underwriters, the Company and the Guarantor
shall remain responsible for the expenses to be paid or reimbursed by them
pursuant to Section 4(g), the respective obligations of the Company, the
Guarantor and the Underwriters pursuant to Section 7 shall remain in effect,
and the Company and the Guarantor will reimburse the Representatives for the
reasonable out_of_pocket expenses of the Underwriters, not exceeding $75,000,
and for the fees and disbursements of Underwriters' Counsel, the Underwriters
agreeing to pay such expenses, fees and disbursements in any other event. In
no event will the Company or the Guarantor be liable to any of the
Underwriters for damages on account of loss of anticipated profits.
Notices. All communications hereunder will be in writing and, if sent
to the Underwriters will be mailed, delivered or telecopied and confirmed to
the Representatives at their addresses specified in Schedule I hereto for the
purpose of communications hereunder or, if sent to the Company or the
Guarantor, will be mailed, delivered or telecopied and confirmed to each of
them at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer.
Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
Concerning Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
Default by Underwriters. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non_defaulting Underwriters shall be obligated to purchase the Securities
which the defaulting Underwriter agreed but failed to purchase in the
respective proportions which the principal amount of Securities set forth in
Schedule II hereto to be purchased by each remaining non_defaulting
Underwriter set forth therein bears to the aggregate principal amount of
Securities set forth therein to be purchased by all the remaining
non_defaulting Underwriters; provided that the remaining non_defaulting
Underwriters shall not be obligated to purchase any amount of Securities if
the aggregate principal amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase exceeds one_tenth of the total
principal amount of Securities, and any remaining non_defaulting Underwriter
shall not be obligated to purchase additional Securities in an amount of more
than one_ninth of the principal amount of Securities set forth in Schedule II
hereto to be purchased by it. If the foregoing maximums are exceeded, the
remaining non_defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Securities. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase, this Agreement shall terminate without liability on the part of
any non_defaulting Underwriter, the Company or the Guarantor, except that the
Company and the Guarantor will continue to be liable for the payment of
expenses as set forth in Sections 4(g) and 8 hereof.
Nothing contained in this Section 12 shall relieve a defaulting
Underwriter of any liability it may have to the Company or the Guarantor for
damages caused by its default. If other underwriters are obligated or agree
to purchase the Securities of a defaulting or withdrawing Underwriter, either
the Representatives or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of
counsel for the Company or Underwriters' Counsel may be necessary in the
Registration Statement, any prospectus or in any other document or
arrangement.
Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company and
the Guarantor prior to delivery of and payment for the Securities, if prior to
such time (i) there has been, since the respective dates as of which
information is given in the Registration Statement, any change in the
financial condition of the Company or of the Guarantor and its subsidiaries,
taken as a whole, or in the earnings, affairs or business prospects of the
Company or of the Guarantor and its subsidiaries, taken as a whole, whether or
not arising in the ordinary course of business, the effect of which is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable to market the Securities or enforce contracts for the sale
thereof, (ii) trading in the Company's or the Guarantor's securities shall
have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (iii) a banking moratorium shall have been declared either by
federal or New York State authorities, (iv) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to
make it, in the judgment of the Representatives, impracticable to market the
Securities or enforce contracts for the sale thereof, or (v) any rating of any
debt securities of the Company or of the Guarantor shall have been lowered by
▇▇▇▇▇'▇ Investors Services, Inc. ("Moody's") or Standard & Poor's Ratings
Group ("S&P") or either Moody's or S&P shall have publicly announced that it
has any such debt securities under consideration for possible downgrade.
Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company, the Guarantor
and the Underwriters in accordance with its terms.
Very truly yours,
U S WEST CAPITAL FUNDING, INC.
BY_______________________________
Name:
Title:
U S WEST, INC.
BY_______________________________
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
[Names of Representatives]
as Representatives of the other several
Underwriters named in Schedule II hereto.
By: [Name]
___________________________________
Name:
Title:
SCHEDULE I
Underwriting Agreement dated _________, ____
Registration Statement Nos. 33-_____ and 33-_____
Representatives and Addresses:
[Names and Addresses]
Securities:
Designation: __% [Debentures][Notes] Due _________,
____.
Principal Amount: $___________
Indenture dated as of April 15, 1988, as amended, among U S WEST Capital
Funding, Inc., U S WEST, Inc. and First National Bank of Santa Fe (formerly
Banquest/First National Bank of Santa Fe), as Trustee.
Date of Maturity: _________, ____
Interest Rate: __% per annum, payable _______ and
_________ of each year,
commencing _______, ____.
Price to Public: ______% of the principal amount thereof
($___________), plus accrued interest, if any, from _________, ____ to
the date of delivery.
Purchase Price: ______% of the principal amount thereof
($___________), plus accrued interest, if any, from _________, ____
to the date of delivery.
Form of Payment:
Redemption Provisions:
Form and Authorized
Denominations: Registered$1,000 and multiples thereof.
Stock Exchange Listing:
Delivery Date, Time _________, ____ at 10:00 A.M., New York time,
and Location: at the office of ▇▇▇▇▇ & Wood, New York,
New York.
SCHEDULE II
PRINCIPAL
AMOUNT OF
SECURITIES TO
NAME OF UNDERWRITER
BE PURCHASED
[
]............................................................................
..............................$__,000,000
[
]............................................................................
...............................__,000,000
[
]............................................................................
...............................__,000,000
[
]............................................................................
...............................__,000,000
[
]............................................................................
...............................__,000,000
Total........................................................................
.................................$___,000,000