QWEST CORPORATION $500,000,000 7.50% Notes due 2051 UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION
COPY
QWEST CORPORATION
$500,000,000 7.50% Notes due 2051
September 14, 2011
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
| c/o | Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 |
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| Xxxxxx Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
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| UBS Securities LLC 000 Xxxxxxxxxx Xxxx. Xxxxxxxx, Xxxxxxxxxxx 00000 |
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| Xxxxx Fargo Securities, LLC 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
Ladies and Gentlemen:
Qwest Corporation, a Colorado corporation (the “Company”), proposes to issue and sell
to you (individually, an “Underwriter” and collectively, the “Underwriters”) an
aggregate of $500,000,000 principal amount of the Company’s 7.50% Notes due 2051 (the
“Initial Securities”) to be issued pursuant to an Indenture dated as of October 15,
1999, between the Company (formerly known as US WEST Communications, Inc.) and Bank of New York
Trust Company, National Association (as successor in interest to Bank One Trust Company), as
amended and supplemented to the date hereof, and as will be further supplemented by the Eighth
Supplemental Indenture (the “Supplemental Indenture”) between the Company and U.S. Bank
National Association, as trustee (the “Trustee”), to be dated as of September 21, 2011,
relating to the Securities (as amended and supplemented, the “Indenture”).
The purchase price for the Securities (as hereinafter defined) to be paid by the Underwriters
shall be agreed upon by the Company and the Underwriters and such agreement shall be set forth in a
separate written instrument substantially in the form of Exhibit A hereto (the “Price
Determination Agreement”). The Price Determination Agreement may take the form of an exchange
of any standard form of written communication among the Company and the Underwriters and shall
specify such applicable information as is indicated in Exhibit A hereto. In addition, if
applicable, the Price Determination Agreement shall specify whether the Company has agreed to grant
to the Underwriters an option to purchase additional 7.50% Notes due 2051 of the Company to cover
over-allotments, if any, and the aggregate principal amount of 7.50% Notes due 2051 of the Company
subject to such option (the “Option Securities”). As used herein, the term
“Securities” shall refer collectively to the Initial Securities and the Option Securities.
The offering of the Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery of the Price
Determination Agreement, this Agreement shall be deemed to incorporate, and, unless the context
otherwise indicates, all references contained herein or in the exhibits hereto to “this Agreement,”
the “Underwriting Agreement” and to the phrase “herein” shall be deemed to include, the Price
Determination Agreement.
The Company confirms as follows its agreements with the several Underwriters.
1. Agreement to Sell and Purchase. (a) On the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the terms and conditions of this
Agreement, the Company agrees to sell to each of the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company, the principal amount of the Initial
Securities set forth opposite the name of such Underwriter in Schedule I hereto, plus such
additional principal amount of Initial Securities which any Underwriter may become obligated to
purchase pursuant to Section 8 hereof, all at the purchase price to be agreed upon by the
Underwriters and the Company in accordance with Section 1(b) and as set forth in the Price
Determination Agreement.
(b) The purchase price for the Initial Securities to be paid by the several Underwriters shall
be agreed upon and set forth in the Price Determination Agreement, which shall be dated the
Execution Date (as hereinafter defined).
(c) On the basis of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions of this Agreement, the Company may grant, if
so provided in the Price Determination Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the aggregate principal amount of the Option Securities set forth
therein at a price per Option Security equal to the purchase price per Initial Security plus
accrued interest with respect to such Option Securities, if any, from and including the Closing
Date (as hereinafter defined) up to and excluding the related Delivery Date (as hereinafter
defined). Such option, if granted, will expire 30 days after the date of such Price Determination
Agreement, and may be exercised in whole or in part from time to time for the purpose of covering
over-allotments that may be made in connection with the offering and distribution of the Initial
Securities upon notice by the Representatives (as hereinafter defined) to the Company setting forth
the aggregate principal amount of Option Securities as to which the
several Underwriters are then exercising the option and the time, date and place of payment
and delivery for such Option Securities. Any such time and date of payment and
delivery (each, a
“Delivery Date”) shall be determined by the Representatives, but shall not be later than
seven full business days after the exercise of said option, nor in any event prior to the Closing
Date, unless otherwise agreed upon by the Representatives and the Company. If the option is
exercised as to all or any portion of the Option Securities, each of the Underwriters, severally
and not jointly, will purchase that proportion of the aggregate principal amount of Option
Securities then being purchased which the aggregate principal amount of Initial Securities each
such Underwriter has severally agreed to purchase as set forth in the Price Determination Agreement
bears to the aggregate principal amount of Initial Securities, subject to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or purchases of a fractional
aggregate principal amount of Option Securities.
2. Delivery and Payment. Delivery of the Initial Securities shall be made to the
Underwriters for the account of each Underwriter in book-entry form through the facilities of The
Depository Trust Company (“DTC”) against payment of the purchase price therefor by such Underwriter
or on its behalf therefor by wire transfer in same day funds to the Company or its order at the
office of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, New York, New York, or at such other location as the
parties may agree. Such payment of the Initial Securities shall be made at 10:00 a.m., New York
City time, on the fifth business day following the date of this Agreement or at such time on such
other date as may be agreed upon by the Company and the Representatives (such date is hereinafter
referred to as the “Closing Date”). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option Securities, payments of the
purchase price for and delivery of such Option Securities shall be made at the above mentioned
offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, or at such other location as the parties may agree,
on the relevant Delivery Date as specified in the notice from the Representatives to the Company
pursuant to Section 1(c).
The Securities to be purchased by each Underwriter hereunder will be represented by one or
more registered global Securities in book-entry form, which will be deposited by or on behalf of
the Company with DTC or its designated custodian. The certificates for the Securities will be made
available for examination and packaging by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxx Xxxxxxx & Co. LLC, UBS Securities LLC and Xxxxx Fargo Securities, LLC, as representatives of
the several Underwriters (the “Representatives”), in New York City not later than 10:00
a.m. (New York City time) on the business day prior to the Closing Date or the Delivery Date, as
the case may be.
The cost of original issue tax stamps, if any, in connection with the issuance and sale of the
Securities by the Company to the respective Underwriters shall be borne by the Company. The
Company will pay and hold each Underwriter and any subsequent holder of the Securities harmless
from any and all liabilities with respect to or resulting from any failure or delay in paying
federal and state stamp and other issuance taxes, if any, which may be payable or determined to be
payable in connection with the original issuance or sale to such Underwriter of the Securities.
3. Representations and Warranties of the Company. The Company represents and warrants to
the several Underwriters as of the date hereof, as of the Time of Sale and as of the Closing
Date,
and if applicable, as of each Delivery Date, and covenants with the several Underwriters, that:
(a) The Company meets the requirements for the use of an “automatic shelf registration
statement,” as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Securities Act”), and such
registration statement on Form S-3 (File No. 333-156101-03), including a prospectus (the “Basic
Prospectus”), relating to, among other securities, the debt securities to be issued from time
to time by the Company has been prepared and filed by the Company with the Securities and Exchange
Commission (the “Commission”) not earlier than three years prior to the date hereof. The
Company has also filed, or proposes to file, with the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement dated the date hereof specifically relating to the
Securities (the “Prospectus Supplement”).
Such registration statement, at the Effective Date (as defined herein), including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part
of the registration statement at the time of such effectiveness (“Rule 430 Information”),
is referred to herein as the “Registration Statement”, and, as used herein, the term
“Prospectus” means the Basic Prospectus as supplemented by the Prospectus Supplement in the
form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities and the term
“Preliminary Prospectus” means the preliminary prospectus supplement dated September 13,
2011 specifically relating to the Securities together with the Basic Prospectus. References herein
to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated or deemed to be incorporated by reference therein
as of the Effective Date with respect to the Registration Statement or the date of the Preliminary
Prospectus or the date of the Prospectus Supplement, as the case may be. The terms “supplement,”
“amendment” and “amend” as used herein with respect to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any documents filed by the
Company under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Exchange Act”), subsequent to the date of this
Agreement which are deemed to be incorporated by reference therein. For purposes of this
Agreement, the term “Effective Date” means the effective date of the Registration Statement
with respect to the offering of Securities as determined for the Company pursuant to Rule
430B(f)(2) under the Securities Act and the term “Execution Date” means the date that this
Agreement is executed and delivered by the parties hereto, as reflected on the first page hereof.
At or prior to the Time of Sale (as defined in the Price Determination Agreement), the Company
had prepared the following information (collectively, the “Time of Sale Information”): the
Preliminary Prospectus and each Issuer Free Writing Prospectus (as defined herein) listed on
Schedule II hereto.
(b) The Registration Statement became effective upon filing with the Commission under the
Securities Act. No order suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has been initiated or, to the
knowledge of the Company, threatened by the Commission; as of the Effective Date, the Registration
Statement complied in all material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the
“Trust Indenture Act”), and did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the date of the Prospectus Supplement and any amendment or
supplement thereto and as of the Closing Date and each Delivery Date, as the case may be, the
Prospectus complied in all material respects with the Securities Act and the Trust Indenture Act
and did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee
under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and
the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through the Representatives
expressly for use therein.
(c) The Time of Sale Information, at the Time of Sale did not, and at the Closing Date and
each Delivery Date, as the case may be, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in the Time of Sale
Information in reliance upon and in conformity with information furnished to the Company in writing
by any Underwriter through the Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(d) The Company (including its agents and representatives, other than the Underwriters in
their capacity as such) has not prepared, made, used, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to
buy the Securities (each such communication by the Company or its agents and representatives (other
than a communication referred to in clauses (i), (ii) and (iii) below), an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary
Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule II to this Agreement as
constituting part of the Time of Sale Information and (v) any electronic road show or other written
communications, in the case of clause (v) approved in writing in advance by the Representatives.
Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act,
has been or will be (within the time period specified in
Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and,
when taken together with each such other Issuer Free Writing Prospectus and the Preliminary
Prospectus did not, and at the Closing Date and each Delivery Date, as the case may be, will not,
contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in any such Issuer Free Writing Prospectus.
(e) The documents which are incorporated by reference in the Registration Statement, the
Prospectus and the Time of Sale Information, when filed with the Commission, as the case may be,
complied in all material respects with the requirements of the Securities Act or the Exchange Act
and did not and will not contain an untrue statement of material fact or omit to state 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.
(f) (A) (i) At the time of initial filing of the Registration Statement, (ii) at the time of
the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (pursuant to the most recent Annual Report on Form 10-K incorporated therein), and
(iii) at the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Securities Act, the Company was a “well-known
seasoned issuer” as defined in Rule 405 under the Securities Act; and (B) at the earliest time
after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the
Securities, the Company was not, and currently is not, an “ineligible issuer” as defined in Rule
405 under the Securities Act.
(g) The Company is, and at the Closing Date and each Delivery Date, as the case may be, will
be, a corporation duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation. The Company does not have any subsidiary that is a “significant
subsidiary” (as such term is defined in Regulation S-X under the Exchange Act). The Company has,
and at the Closing Date and each Delivery Date, as the case may be, will have, full corporate power
and authority to conduct all the activities conducted by it, to own or lease all the assets owned
or leased by it and to conduct its business as described in the Registration Statement, the Time of
Sale Information and the Prospectus. The Company is, and at the Closing Date and each Delivery
Date, as the case may be, will be, duly licensed or qualified to do business and in good standing
as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it
or the character of the assets owned or leased by it makes such licensing or qualification
necessary except where the failure to be so qualified or licensed would not have a material adverse
effect on the business, properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken as a whole (a “Material
Adverse Effect”). For purposes of this Agreement, “subsidiaries” shall mean (i) the Company’s
direct and indirect majority-owned corporate subsidiaries, (ii) the Company’s direct and indirect
majority owned limited liability companies and (iii) the partnerships, joint ventures and other
entities of which the Company or any
subsidiary is the majority owner or managing general partner. Complete and correct copies of
the certificate of incorporation and of the by-laws or other organizational documents of the
Company and all amendments thereto have been made available to the Underwriters, and no changes
therein will be made subsequent to the Time of Sale and prior to the Closing Date.
(h) The Securities have been duly and validly authorized and, when authenticated by the
Trustee and issued, delivered and sold in accordance with this Agreement and the Indenture, will
have been duly and validly executed, authenticated, issued and delivered and will constitute valid
and binding obligations of the Company, enforceable against the Company in accordance with their
respective terms and entitled to the benefits provided by the Indenture except (i) that such
enforcement may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights
generally and (ii) that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(i) The description of the Securities in each of the Registration Statement, the Time of Sale
Information and the Prospectus is, and at the Closing Date and each Delivery Date, as the case may
be, will be, complete and accurate in all material respects and, insofar as such description
contains statements constituting a summary of the legal matters or documents referred to therein,
such description fairly summarizes the information referred to therein in all material respects.
(j) The historical financial statements and schedules included or incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus, filed by the Company
with the Commission, present fairly, in all material respects, the consolidated financial condition
of the Company as of the respective dates thereof and the consolidated results of operations and
cash flows of the Company for the respective periods covered thereby, all in conformity with United
States generally accepted accounting principles applied on a consistent basis throughout the entire
period involved, except as otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus. The selected consolidated financial data included in the
Registration Statement, the Time of Sale Information and the Prospectus present fairly, in all
material respects, as of the dates thereof the information shown therein and have been compiled on
a basis consistent with that of the audited consolidated financial statements of the Company
included or incorporated by reference in the Registration Statement, the Time of Sale Information
and the Prospectus. No other financial statements or schedules of the Company are required by the
Securities Act or the Exchange Act to be included in or incorporated by reference in the
Registration Statement, the Time of Sale Information or the Prospectus.
(k) No pro forma financial statements or information are required by the Securities Act or the
Exchange Act to be included or incorporated by reference in the Registration Statement, the Time of
Sale Information or the Prospectus.
(l) KPMG LLP (“KPMG”), who has audited certain financial statements and schedules of
the Company incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus, is an independent registered public accounting firm with
respect to the Company, as required by the Securities Act.
(m) Neither the Company nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the Time of Sale Information
and the Prospectus any loss or interference with its business that is material to the
Company and
its subsidiaries (taken as a whole), from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus;
and, since the respective dates as of which information is given in the Registration Statement, the
Time of Sale Information and the Prospectus, there has not been any change in the capital stock of
the Company or any of its subsidiaries, any change in the face amount of consolidated long-term
debt for borrowed money owed by the Company and its subsidiaries (except for changes to long-term
debt relating to real estate notes entered into in the ordinary course consistent with past
practice) or any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Time of Sale Information and the Prospectus.
(n) The Company is not, and after giving effect to the issuance and sale of the Securities and
the application of the proceeds thereof as described in the Time of Sale Information, will not be,
an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for,
an “investment company,” as such terms are defined in the Investment Company Act of 1940, as
amended.
(o) Excluding those set forth in the Registration Statement, the Time of Sale Information and
the Prospectus, there are no actions, suits or proceedings pending or, to the Company’s knowledge,
threatened against or affecting the Company or any of its subsidiaries or any of their respective
officers in their capacity as such, before or by any federal or state court, commission, regulatory
body, administrative agency or other governmental body, domestic or foreign, that is likely to have
a Material Adverse Effect. Excluding those set forth in the Registration Statement, the Time of
Sale Information and the Prospectus, all actions, suits or proceedings now pending against the
Company or any of its subsidiaries, or any of their respective officers in their capacities as
such, before any Federal or state court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, if decided or resolved in a manner unfavorable to the
Company or any of its subsidiaries, would not be likely to, individually or in the aggregate, have
a Material Adverse Effect.
(p) The Company has and, at the Closing Date and each Delivery Date, as the case may be, will
have (i) such franchises, certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by
it, other than those the absence of which would not be likely to have a Material Adverse Effect,
and the Company has not received any written notice of proceedings relating to the revocation or
modification of any such franchise, certificate, authority or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would be likely to have a
Material Adverse Effect, (ii) complied in all material respects with all
laws, statutes, ordinances, rules, regulations, orders or decrees of any court, governmental
body or regulatory authority or administrative agency having jurisdiction over the Company or any
of the property or assets of the Company (including, without limitation, any such laws, statutes,
ordinances, rules, regulations, orders or decrees with respect to environmental protection or the
release, handling, treatment, storage or disposal of hazardous substances or toxic wastes), the
failure to comply with which would be likely to have a Material Adverse Effect, and (iii)
performed
in all material respects all of its obligations required to be performed by it under any material
contract or other instrument to which it is a party or by which its property is bound or affected,
and is not, and at the Closing Date and each Delivery Date, as the case may be, will not be, in
default under any such contract or instrument the effect of which would be likely to have a
Material Adverse Effect. To the best knowledge of the Company, no other party under any material
contract or other instrument to which it is a party is in default in any respect thereunder, except
for any such defaults (alone or collectively) that would not be likely to have a Material Adverse
Effect; provided that it is understood and agreed that the Company has not undertaken any special
investigation to determine compliance by such other parties under any such contract or other
instrument. The Company is not, and at the Closing Date and each Delivery Date, as the case may
be, will not be, in violation of any provision of its articles of incorporation or by-laws, each as
amended, or in default in any material respect under any agreement or instrument evidencing
indebtedness for borrowed money.
(q) No consent, approval, authorization or order of, or any filing, registration,
qualification or declaration with, any court or governmental agency or body is required for (i) the
execution, delivery or performance of this Agreement, the Securities or the Supplemental Indenture
by the Company, (ii) the authorization, offer, issuance, transfer, sale or delivery of the
Securities by the Company in accordance with this Agreement or (iii) the consummation by the
Company of the transactions on its part contemplated herein and by the Indenture, except such as
may have been obtained, or on or prior to the Closing Date will be obtained, under the Securities
Act, the Exchange Act or the Trust Indenture Act and such as may be required under foreign or state
securities or blue sky laws or the rules of the Financial Industry Regulatory Authority
(“FINRA”) in connection with the purchase and distribution of the Securities by the
Underwriters.
(r) The Company has full corporate power and authority to enter into this Agreement. This
Agreement has been duly authorized, executed and delivered by the Company and, when duly executed
and delivered by the Underwriters, will constitute a valid and binding agreement of the Company and
will be enforceable against the Company in accordance with the terms hereof, except (i) that such
enforcement may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights
generally, (ii) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) rights to indemnity and contribution hereunder may be
limited by federal or state laws relating to securities or the policies underlying such laws. The
Indenture has been duly authorized, executed and delivered by the Company and the Trustee and has
been qualified under the Trust Indenture Act and constitutes a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, except (i) that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in
effect, relating to creditors’ rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought.
(s) The issue and sale of the Securities, the execution, delivery and performance by the
Company of this Agreement and the Indenture and the consummation of the transactions
contemplated
hereby and thereby will not (i) result in a violation of any of the terms or provisions of the
articles of incorporation or by-laws, each as amended, of the Company, (ii) violate or conflict
with any franchise or any judgment, ruling, decree, order, statute, rule or regulation of any court
or other governmental agency or body applicable to the Company or its business or properties or
(iii) result in the creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company pursuant to the terms or provisions of, or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or give any other party a right
to terminate any of its obligations under, or result in the acceleration of any obligation under,
any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture,
note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument
to which the Company is a party or by which the Company or any of its properties is or are bound or
affected (the “applicable agreements”), other than with respect to this clause (iii) any breaches,
violations, defaults, terminations or accelerations with respect to any applicable agreement that
will not, or are not likely to, have a Material Adverse Effect.
(t) The Company has good and marketable title to all franchises, properties and assets owned
by it, which are material to the business or operations of the Company and its subsidiaries, taken
as a whole (including without limitation the stock or other equity interests of all subsidiaries),
free and clear of all liens, charges, encumbrances or restrictions, except such as are described in
the Time of Sale Information and the Prospectus and except immaterial liens which do not affect the
operations or financial condition of the Company. The Company has valid, subsisting and
enforceable leases for the properties leased by it, with such exceptions as would not materially
interfere with the business or operations of the Company and its subsidiaries, taken as a whole.
(u) All existing material contracts described in the Time of Sale Information and the
Prospectus to which the Company is a party have been duly authorized, executed and delivered by the
Company, constitute valid and binding agreements of the Company and are enforceable against the
Company in accordance with the terms thereof, except (i) that such enforcement may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws,
now or hereafter in effect, relating to creditors’ rights generally and (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor may be brought.
Such described contracts are the only contracts required to be described in the Time of Sale
Information and the Prospectus by the Securities Act.
(v) No statement, representation, warranty or covenant made by the Company in this Agreement
or the Indenture or made in any certificate or document required by this Agreement to be delivered
to the Underwriters was or will be, when made, inaccurate, untrue or incorrect in any material
respect.
(w) No holder of securities of the Company has rights to the registration of any securities of
the Company because of the filing of the Registration Statement or the offering and sale of the
Securities.
(x) No action has been taken (including the issuance or service of any injunction, restraining
order or order of any nature by a federal or state court of competent jurisdiction), and no
statute, rule, regulation or order has been enacted, adopted or issued by any governmental agency
or body that prevents the issuance of the Securities, suspends the effectiveness of the
Registration Statement, prevents or suspends the use of the Time of Sale Information or the
Prospectus, or suspends the sale of the Securities in any jurisdiction referred to in Section 4(i)
below, provided, however, that to the extent this representation relates to state securities or
blue sky laws and laws of jurisdictions other than the United States and its political
subdivisions, it shall be limited to the knowledge of the Company.
(y) The Company has not taken, directly or indirectly, any action designed to cause or to
result in, or that has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to facilitate the sale or
resale of the Securities in any jurisdiction referred to in Section 4(i) below in contravention of
applicable law, provided that no representation is made herein as to the activities of any
Underwriter.
(z) The Company and its subsidiaries maintain (x) systems of internal controls over financial
reporting (as defined in Rule 15d-15 under the Exchange Act) sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain asset
accountability; and (iii) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences and
(y) disclosure controls and procedures as defined in, and that comply in all material respects with
the requirements of, Rule 15d-15 under the Exchange Act. The Company is not aware of any material
weakness in its internal controls over financial reporting.
(aa) The Company is, to its knowledge, in compliance in all material respects with the
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the
Commission that have been adopted and are effective thereunder.
4. Agreements of the Company. The Company agrees with the several Underwriters as
follows:
(a) The Company will file each of the Preliminary Prospectus and the Prospectus in a form
approved by the Representatives with the Commission pursuant to Rule 424 under the Securities Act
not later than the close of business on the second business day following the date of first use,
with respect to the Preliminary Prospectus, and the date of determination of the public offering
price of the Securities, with respect to the Prospectus or, if applicable, such earlier time as may
be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act. The Company will
prepare a final term sheet in a form approved by the
Representatives and attached hereto as Exhibit D (the “Final Term Sheet”) and will
file any Issuer Free Writing Prospectus (including the Final Term Sheet) to the extent required by
Rule 433 under the Securities Act.
(b) The Company will not, from the Time of Sale until the end of such period as the Prospectus
is required by law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Securities by an Underwriter or dealer, file any
amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus, unless a draft thereof shall first have been submitted to
the Underwriters within a reasonable period of time prior to the filing thereof and the
Underwriters shall not have objected thereto in good faith.
(c) The Company will notify the Underwriters promptly, and will confirm such advice in
writing, (i) when any post-effective amendment to the Registration Statement becomes effective,
(ii) of any request by the Commission for amendments or supplements to the Registration Statement,
the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of the Preliminary Prospectus,
the Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that
purpose or the threat thereof, pursuant to Section 8A of the Securities Act, (iv) until the end of
such period as the Prospectus is required by law to be delivered (or required to be delivered but
for Rule 172 under the Securities Act) in connection with sales of the Securities by an Underwriter
or dealer, of the happening of any event that in the judgment of the Company requires the Company
to file an amendment or supplement to the Registration Statement and (v) of receipt by the Company,
or any representatives or attorney of the Company, of any other communication from the Commission
relating to the Registration Statement, the Basic Prospectus, the Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus or the offering of the Securities. If at any time
the Commission shall issue any order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible moment.
(d) If and to the extent not already furnished, the Company will, upon request, furnish to the
Underwriters, without charge, one complete copy of the Registration Statement and of any
post-effective amendment thereto, including financial statements and schedules, and all exhibits
thereto (including any documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus), and will upon request make available to the Underwriters, without
charge, additional copies of the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules but without exhibits and documents incorporated by
reference therein.
(e) The Company will not make any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus without the prior written consent of the Representatives, which
consent shall be in writing for any Issuer Free Writing Prospectus other than the Final Term Sheet.
(f) The Company will, pursuant to reasonable procedures developed in good faith, retain copies
of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with
Rule 433 under the Securities Act.
(g) The Company will comply with all the provisions of any undertakings contained in the
Registration Statement.
(h) At the Time of Sale, and thereafter from time to time, the Company will deliver to the
Underwriters, without charge, as many copies of the Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or any supplement thereto, as the Underwriters may reasonably
request. The Company consents to the use of the Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus or any amendment or supplement thereto by the Underwriters and by all
dealers to whom the Securities may be sold, both in connection with the offering or sale of the
Securities and for any period of time thereafter during which a prospectus is required by law to be
delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection
therewith. If during such period of time, any event shall occur which in the judgment of the
Company or counsel to the Underwriters should be set forth in the Time of Sale Information and the
Prospectus in order to make any statement therein, in the light of the circumstances under which it
was made when delivered, not misleading, or if it is necessary to supplement the Time of Sale
Information and the Prospectus to comply with law, the Company will forthwith prepare and duly file
with the Commission an appropriate supplement thereto or a document under the Exchange Act deemed
to be incorporated therein, and will deliver to the Underwriters, without charge, such number of
copies thereof as the Underwriters may reasonably request. The Company shall not file any document
under the Exchange Act before the termination of the offering of the Securities by the Underwriters
if such document would be deemed to be incorporated by reference into the Preliminary Prospectus or
the Prospectus, unless a draft thereof shall first have been submitted to the Underwriters within a
reasonable period of time prior to the filing thereof and the Underwriters shall not have objected
thereto in good faith.
(i) The Company will cooperate with the Underwriters and counsel to the Underwriters in
connection with the registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of such United States jurisdictions and similar laws of such foreign
jurisdictions as the Underwriters may request, and will maintain such qualifications in effect so
long as required for the distribution of the Securities; provided, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to general service of process or general taxation in
any jurisdiction where it is not now so subject.
(j) During the period of five years commencing at the Time of Sale, to the extent the Company
is not required to file periodic reports with the Commission pursuant to Sections 13 or 15 of the
Exchange Act, the Company will furnish to the Underwriters, if requested, copies of such financial
statements and other reports and information as the Company may from time to time distribute
generally to the holders of any class of its securities.
(k) The Company will make generally available to holders of its securities as soon as may be
practicable but in no event later than the last day of the fifteenth full calendar month
following the calendar quarter in which the Execution Date falls, an earning statement (which
need not be audited but shall be in reasonable detail) for a period of twelve (12) months ended
commencing after the Time of Sale, within the meaning of and satisfying the provisions of Section
11(a) of the Securities Act (including Rule 158 thereunder).
(l) Unless otherwise agreed by the parties hereto, whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated, the Company will
pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance
of the obligations of the Company under this Agreement, including but not limited to costs and
expenses of or relating to (i) the preparation, printing and filing of the Registration Statement
and exhibits thereto, the Basic Prospectus, the Preliminary Prospectus, the Prospectus, the Time of
Sale Information, any Issuer Free Writing Prospectus and any amendment or supplement to the
Registration Statement, the Preliminary Prospectus, the Prospectus, the Time of Sale Information or
any Issuer Free Writing Prospectus, (ii) the preparation and delivery of certificates representing
the Securities, (iii) the printing of this Agreement, any agreement among underwriters, any dealer
agreements and any underwriters’ questionnaire, (iv) furnishing (including costs of shipping and
mailing) such copies of the Registration Statement, the Basic Prospectus, the Preliminary
Prospectus, the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus and
all amendments and supplements thereto, as may be reasonably requested for use in connection with
the offering and sale of the Securities by the Underwriters or by dealers to whom Securities may be
sold, (v) any filings required to be made by the Underwriters with FINRA, and the fees,
disbursements and other charges of counsel for the Underwriters in connection therewith, (vi) the
registration or qualification of the Securities for offer and sale under the securities or blue sky
laws of such United States jurisdictions and similar laws of such foreign jurisdictions designated
pursuant to Section 4(i) hereof, including the fees, disbursements and other charges of counsel for
the Underwriters in connection therewith, and the preparation and printing of any preliminary,
supplemental and final blue sky memoranda, (vii) counsel to the Company, (viii) the rating of the
Securities by one or more rating agencies, (ix) the Trustee and any agent of the Trustee and the
fees, disbursements and other charges of counsel for the Trustee in connection with the Indenture
and the Securities, (x) the applicable Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Securities Act without regard to the proviso thereof and
(xi) the listing of the Securities on the New York Stock Exchange (the “NYSE”).
(m) Unless otherwise agreed by the parties, if this Agreement shall be terminated for any
reason by the Company pursuant to any of the provisions hereof (other than pursuant to Section 8
hereof), if for any reason the Company shall be unable to perform its obligations hereunder or if
any condition to the Underwriters’ obligations hereunder is not fulfilled at or prior to the
Closing Date or the relevant Delivery Date, as the case may be, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of
counsel for the Underwriters) reasonably incurred by them in connection herewith.
(n) The Company will not at any time, directly or indirectly, take any action described in
Section 3(y) hereof.
(o) Until thirty (30) days from the Execution Date, the Company will not, without the consent
of the Representatives, offer, sell or contract to sell, or otherwise dispose of, by public
offering, or announce the public offering of, any other debt securities of the Company other than
(i) the Securities and (ii) the incurrence of inter-company indebtedness in connection with draws
under the credit facilities of CenturyLink, Inc. or indebtedness through commercial paper
issuances.
(p) If immediately prior to the third anniversary (the “Renewal Deadline”) of the
initial effective date of the Registration Statement, any of the Securities remain unsold by the
Underwriters, prior to the Renewal Deadline, the Company will file, if it has not already done so
and is eligible to do so, a new automatic shelf registration statement relating to the Securities
(either as the registrant or as a co-registrant), in a form satisfactory to the Representatives,
(ii) if the Company is no longer eligible to file an automatic shelf registration statement, prior
to the Renewal Deadline, if it has not already done so, the Company will file a new shelf
registration statement relating to the Securities, in a form satisfactory to the Representatives,
and use its best efforts to cause such registration statement to be declared effective within 180
days after the Renewal Deadline and (iii) the Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities to continue as contemplated in
the expired registration statement relating to the Securities (references herein to the
Registration Statement shall include such new automatic shelf registration statement or such new
shelf registration statement, as the case may be).
(q) If at any time when the Securities remain unsold by the Underwriters the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise
ceases to be eligible to use the automatic shelf registration statement form, the Company will (i)
promptly notify the Representatives, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Securities, in a form satisfactory to
the Representatives, (iii) use its best efforts to cause such registration statement or
post-effective amendment to be declared effective, (iv) promptly notify the Representatives of such
effectiveness; and (v) take all other action necessary or appropriate to permit the public offering
and sale of the Securities to continue as contemplated in the registration statement that was the
subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible
(references herein to the Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be).
(r) The Company will use its reasonable best efforts to effect the listing of the Securities
on the NYSE, subject to official notice of issuance.
5. Agreements of the Underwriters.
Each Underwriter hereby represents, warrants and agrees to and with the Company that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus” (as defined in Rule 405 under the Securities Act) (a
“Free Writing Prospectus”) other than (i) a Free Writing Prospectus that, solely as a
result of use by such Underwriter, would not trigger an obligation to file such Free Writing
Prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed
on Schedule
II to this Agreement or prepared pursuant to Section 3(d) or Section 4(a) above (including any
electronic road show), or (iii) any Free Writing Prospectus prepared by such Underwriter and
approved by the Company in advance in writing.
(b) It will, pursuant to reasonable procedures developed in good faith, retain copies of, and
comply with any legending requirements applicable to, each free writing prospectus used or referred
to by it, in accordance with Rule 433 under the Securities Act.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated prior to the end of such period as the Prospectus is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by an Underwriter or dealer).
6. Conditions of Obligations of the Underwriters. In addition to the execution and
delivery of the Price Determination Agreement by the Company, the obligations of the Underwriters
shall be subject to the condition that all representations and warranties and other statements of
the Company set forth herein are, at and as of the Closing Date, true and correct, the condition
that the Company shall have performed all of its obligations hereunder theretofore to be performed,
and the following additional conditions, unless any such condition is waived in writing by the
Representatives:
(a) (i) No stop order suspending the effectiveness of the Registration Statement or preventing
or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus shall be in effect and no proceedings for that purpose or pursuant to Section 8A of the
Securities Act shall be pending or threatened by the Commission and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act shall have been received, (ii) any request for
additional information on the part of the staff of the Commission or any such authorities with
respect to the offering of the Securities shall have been complied with to the satisfaction of the
staff of the Commission or such authorities, (iii) the Company shall have filed the Prospectus
pursuant to Rule 424 under the Securities Act and shall have made all other filings (including,
without limitation, the Final Term Sheet) required by Rule 424 or Rule 433 under the Securities Act
within the time periods required by such rules and (iv) after the Time of Sale, no amendment or
supplement to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus shall have been filed unless a copy thereof was first submitted to the
Underwriters and the Representatives did not object thereto in good faith, and the Underwriters
shall have received certificates, dated the Closing Date and signed on behalf of the Company by the
Chief Executive Officer of the Company and the Chief Financial Officer of the Company (who may, as
to proceedings threatened, rely upon their information and belief), to the effect of clauses (i)
and (ii).
(b) Since the respective dates as of which information is given in the Registration Statement,
the Time of Sale Information and the Prospectus (excluding any amendment or supplement thereto) (i)
there shall not have been any change in the capital stock of the Company
or any of its subsidiaries, any change in the face amount of consolidated long-term debt for
borrowed money owed by the Company and its subsidiaries (except for changes to long-term debt
relating to real estate notes entered into in the ordinary course consistent with past practice) or
any change, or any development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Registration Statement, the
Time of Sale Information and the Prospectus and (ii) the Company shall not have sustained any loss
or interference with its business or properties from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or any court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Registration Statement, the
Time of Sale Information and the Prospectus, the effect of which any such case described in clause
(i) or (ii) is, in the reasonable judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Time of Sale Information and the
Prospectus.
(c) On or after the date hereof there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension
or material limitation in trading in the Company’s securities by the NYSE; (iii) a general
moratorium on commercial banking activities declared by Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance services in the
United States; (iv) any material adverse change in the financial markets in the United States or
elsewhere; or (v) the outbreak or escalation of hostilities or other international or national
calamity or crisis, if the effect of any such event specified in clause (iv) or (v), in the
Representatives’ reasonable judgment, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner contemplated in
the Time of Sale Information and the Prospectus.
(d) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded
the Company’s debt securities or preferred stock (if any) by any “nationally recognized statistical
rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no
such organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company’s debt securities or preferred
stock (if any).
(e) At the Closing Date and at any relevant Delivery Date, if applicable, the Securities shall
have at least the ratings specified in the Time of Sale Information, and the Company shall have
delivered, to the extent available, to the Representatives a letter, dated the Closing Date, from
each relevant rating agency, or other evidence reasonably satisfactory to the Representatives,
confirming that the Securities have been assigned such ratings.
(f) Since the respective dates as of which information is given in the Registration Statement
and the Time of Sale Information, there shall have been no litigation or other proceeding
instituted against the Company or any of its officers or directors in their capacities as such,
before or by any federal, state or local court, commission, regulatory body, administrative agency
or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would have a Material Adverse Effect.
(g) On the Closing Date, the Underwriters shall have received an opinion, dated the Closing
Date, and satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxx
XxXxxxxxxx, Associate General Counsel of the Company, and from Jones, Walker, Waechter, Poitevent,
Carrère & Xxxxxxx, L.L.P., special counsel to the Company, to the effect set forth in Exhibit B and
Exhibit C hereto, respectively.
(h) On the Closing Date, the Underwriters shall have received an opinion, dated the Closing
Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Underwriters, with respect to such
matters as the Underwriters may reasonably require. Such counsel may state that,
insofar as such
opinion involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries, and certificates of public officials.
(i) On the date hereof and at the Closing Date, KPMG, who has audited certain of the financial
statements of the Company and its subsidiaries, incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus, shall have furnished to the
Underwriters a letter or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to the Underwriters, with respect to such financial statements of the
Company and its subsidiaries.
(j) At the Closing Date, there shall be furnished to the Underwriters a certificate, dated the
date of its delivery, signed on behalf of the Company by each of the Chief Executive Officer and
the Chief Financial Officer of the Company, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) Each signer of such certificate has carefully examined the Registration Statement, the
Time of Sale Information and the Prospectus and (A) the Registration Statement, as of the Effective
Date (including any Rule 430 Information), is true and correct in all material respects and does
not omit to state a material fact required to be stated therein or necessary in order to make the
statements therein not untrue or misleading, (B) the Time of Sale Information, at the Time of Sale,
is true and correct in all material respects and does not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, (C) the Prospectus, as of its date and as of the Closing Date, is true and
correct in all material respects and does not omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
untrue or misleading (it being understood that to the extent a statement in the Registration
Statement, Prospectus or Time of Sale Information, including any documents deemed to be
incorporated by reference therein, refers to and speaks as of a specific date, each signer of such
certificate only represents with respect to such statement that it was true and correct in all
material respects as of such date) and (D) since the Time of Sale, no event has occurred as a
result of which it is necessary to supplement the Time of Sale Information or the Prospectus in
order to make the statements therein, in light of the circumstances under which they were made, not
untrue or misleading in any material respect and there has been no document required to be filed
under the Exchange Act that upon such filing would be deemed to be incorporated by reference into
the Prospectus that has not been so filed;
(ii) Each of the representations and warranties of the Company contained in this Agreement
were, when originally made, and are, at the time such certificate is delivered, true and correct;
and
(iii) Each of the covenants required herein to be performed by the Company on or prior to the
delivery of such certificate has been duly, timely and fully performed and each condition herein
required to be complied with by the Company on or prior to the date of such certificate has been
duly, timely and fully complied with or satisfied.
(k) In the event that the Underwriters are granted an over-allotment option by the Company in
the Price Determination Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Securities, the representations and warranties and other statements of the
Company set forth herein shall be true and correct at and as of each Delivery Date, and, at such
Delivery Date, the Underwriters shall have received:
(i) a certificate, dated such Delivery Date, signed on behalf of the Company by each of the
Chief Executive Officer and the Chief Financial Officer of the Company, certifying that the
certificates delivered at the Closing Date pursuant to Sections 6(a) and 6(j) remain true and
correct as of such Delivery Date;
(ii) opinions, dated such Delivery Date, and satisfactory in form and substance to the
Underwriters, from Xxxxxxxx XxXxxxxxxx, Associate General Counsel of the Company, and from Jones,
Walker, Waechter, Poitevent, Carrère & Xxxxxxx, L.L.P., relating to the Option Securities and
otherwise to the same effect as the opinions required by Section 6(g);
(iii) an opinion, dated such Delivery Date, of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, relating
to the Option Securities and otherwise to the same effect as the opinion required by Section 6(h);
and
(iv) letters from KPMG, dated such Delivery Date, satisfactory in form and substance to the
Underwriters, substantially in the same form and substance as the respective letters furnished to
the Underwriters pursuant to Section 6(i), except that the “specified date” on the letters
furnished pursuant to this paragraph shall be a date not more than three business days prior to
such Delivery Date.
In addition, it will be a condition to the Underwriters’ obligation to purchase any Option
Securities that, since the time of execution of the Price Determination Agreement, (i) no
downgrading shall have occurred in the rating accorded the Company’s debt securities (including the
Securities) or preferred stock (if any) by any “nationally recognized statistical rating
organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company’s debt securities (including the
Securities) or preferred stock (if any).
(l) At the Closing Date, the Securities shall have been approved for listing on the NYSE,
subject to official notice of issuance.
(m) The Company shall have furnished to the Underwriters such certificates, in addition to
those specifically mentioned herein, as the Underwriters may have reasonably requested as to the
accuracy and completeness at the Closing Date and at each Delivery Date, as the case may be, of any
statement in the Registration Statement, the Prospectus or the Time of Sale Information, or any
documents filed under the Exchange Act and deemed to be incorporated by reference into the
Prospectus or the Time of Sale Information as to the accuracy at the Closing Date and at each such
Delivery Date, of the representations and warranties of the Company herein, as to the performance
by the Company of its obligations hereunder, or as to the
fulfillment of the conditions concurrent
and precedent to the obligations of the Underwriters hereunder.
7. Indemnification. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, 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, (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary Prospectus, the Prospectus
and any other prospectus relating to the Securities (or any amendment or supplement thereto), any
Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were made, not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall 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 an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, the Preliminary Prospectus, the Prospectus, and any other
prospectus relating to the Securities, any Issuer Free Writing Prospectus or any Time of Sale
Information, or any such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through the Representatives
expressly for use therein.
(b) Each Underwriter, severally, but not jointly, will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may become subject, 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 an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the Preliminary Prospectus, the
Prospectus, and any other prospectus relating to the Securities, any Issuer Free Writing Prospectus
or any Time of Sale Information, 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 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 the Registration
Statement, the Preliminary Prospectus, the Prospectus, and any other prospectus relating to
the Securities, any Issuer Free Writing Prospectus or any Time of Sale Information, or any such
amendment or supplement, in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation unless (i) the Company and such
indemnified party shall have mutually agreed to the employment of such counsel, or (ii) the named
parties to any such action (including any impleaded parties) include both such indemnified party
and the Company and such indemnified party shall have been advised by such counsel that a conflict
of interest between the Company and such indemnified party may arise and for this reason it is not
desirable for the same counsel to represent both the indemnifying party and also the indemnified
party (it being understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for all such indemnified parties), in which
case the fees and expenses of such counsel shall be at the expense of the Company. No
indemnifying party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
any statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Securities on the other from the offering of the
Securities to which such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required under subsection (c)
above and the indemnifying party has been prejudiced in any material respect by such failure, then
each indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters of the Securities on the other
in connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such 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 on the one hand or such Underwriters on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in 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 such action or claim. 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 applicable 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
(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 obligations of the
Underwriters of Securities in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
officer, director, employee and agent of any Underwriter and to each person, if any, who controls
any Underwriter within the meaning of the Securities 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 officer, director,
employee and agent of the Company and to each person, if any, who controls the Company within the
meaning of the Securities Act.
8. Substitution of Underwriters. If any one or more of the Underwriters shall fail or
refuse at the Closing Date, or the relevant Delivery Date, as the case may be, to purchase any of
the Securities which it or they have agreed to purchase hereunder, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date, the other Underwriters shall be obligated, severally, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date, in the proportions which the principal amount of Securities which they have
respectively agreed to purchase pursuant to Section 1 hereof bears to the aggregate principal
amount of Securities which all such non-defaulting Underwriters have so agreed to purchase, or in
such other proportions as such non-defaulting Underwriters may specify;
provided that in no event
shall the maximum principal amount of Securities which any Underwriter has become obligated to
purchase pursuant to Section 1 hereof be increased pursuant to this Section 8 by more than
one-ninth of the principal amount of Securities agreed to be purchased by such Underwriter without
the prior written consent of such Underwriter. If any Underwriter or Underwriters shall fail or
refuse at the Closing Date, or the relevant Delivery Date, as the case may be, to purchase any
Securities and the aggregate principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase exceeds one-tenth of the aggregate principal
amount of the Securities to be purchased on such date and arrangements satisfactory to any
non-defaulting Underwriter and the Company for the purchase of such Securities are not made within
48 hours after such default, this Agreement (or, with respect to the Underwriters’ exercise of any
applicable over-allotment option for the purchase of Option Securities on a Delivery Date after the
Closing Date, the obligations of the Underwriters to purchase, and the Company to sell, such Option
Securities on such Delivery Date) will terminate without liability on the part of any
non-defaulting Underwriter or the Company for the purchase or sale of any Securities under this
Agreement. In any such case either the Underwriters or the Company shall have the right to
postpone the Closing Date or the relevant Delivery Date, as the case may be, but in no event for
longer than seven days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected. Any action taken
pursuant to this Section 8 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
9. Termination. Until the Closing Date or any relevant Delivery Date, as the case may be,
this Agreement may be terminated by the Representatives on behalf of the Underwriters by giving
notice as hereinafter provided to the Company if (i) the Company will have failed, refused or been
unable, at or prior to the Closing Date or such Delivery Date, as the case may be, to perform any
agreement on its part to be performed hereunder or (ii) any condition to the Underwriters’
obligations hereunder is not fulfilled at or prior to the Closing Date or such Delivery Date, as
the case may be. Any termination of this Agreement pursuant to this Section 9 will be without
liability on the part of the Company or any Underwriter, except as otherwise provided in Sections
4(l), 4(m) and 7 hereof.
10. Miscellaneous. Notice given pursuant to any of the provisions of this Agreement shall be
in writing and, unless otherwise specified, shall be mailed or delivered (a) if to the Company, at
the office of the
Company, 000 XxxxxxxXxxx Xxxxx, Xxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Esq.,
Executive Vice President and General Counsel or (b) if to the Underwriters, c/o the
Representatives, to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 00 Xxxxxxxxxxx Xxxxx,
XX0-000-00-00, Xxx Xxxx, Xxx Xxxx 00000 Attention: High Grade Transaction Management/Legal, to
Xxxxxx Xxxxxxx & Co. LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Banking
Division, to UBS Securities LLC, 000 Xxxxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Fixed Income Syndicate and to Xxxxx Fargo Securities, LLC, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Transaction Management. Any such notice shall be effective only
upon receipt. Any notice under this Section 10 may be made by telephone, but if so made shall be
subsequently confirmed in writing.
The respective indemnities, agreements, representations, warranties and other statements of
the Company and the several Underwriters, as set forth in this Agreement or made by or on
behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on behalf of any
Underwriter or any officer, director, employee, agent or controlling person of any Underwriter, or
the Company or any officer, director, employee, agent or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
This Agreement has been and is made solely for the benefit of the several Underwriters and the
Company and of the controlling persons, directors, officers, employees and agents referred to in
Section 7, and their respective successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. The term “successors and assigns” as used in this
Agreement shall not include a purchaser, as such purchaser, of Securities from any of the several
Underwriters.
THE RIGHTS AND DUTIES OF THE PARTIES TO THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY CHOICE OF LAW PRINCIPLES THAT MIGHT CALL FOR THE APPLICATION OF THE LAW OF
ANY OTHER JURISDICTION.
This Agreement may be signed in two or more counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN CASE ANY PROVISION IN THIS AGREEMENT SHALL BE INVALID, ILLEGAL OR UNENFORCEABLE, THE
VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL NOT IN ANY WAY BE AFFECTED
OR IMPAIRED THEREBY.
The Company and the Underwriters each hereby irrevocably waive any right they may have to
trial by jury in respect of any claim based upon or arising out of this Agreement or the
transactions contemplated hereby.
11. No Fiduciary Duty. The Company acknowledges and agrees that the Underwriters named in
this Agreement are acting solely in the capacity of an arm’s length contractual counterparty to the
Company with respect to any offering of Securities contemplated hereby (including in
connection with determining the terms of the offering) and not as a fiduciary to, or an agent of,
the Company or any other person. Additionally, no such Underwriter is advising the Company, any of
its subsidiaries or any of its affiliates as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning
such matters and shall be responsible for making its own independent investigation and appraisal of
the transactions contemplated hereby, and such Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by such Underwriters named in this
Agreement of the Company, the transactions contemplated thereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
Please confirm that the foregoing correctly sets forth the agreement between the Company
and the several Underwriters.
| Very truly yours, QWEST CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Executive Vice President and General Counsel | |||
Confirmed as of the date first above mentioned:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
| By: | XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| By: | XXXXXX XXXXXXX & CO. LLC | |||
| By: | /s/ Yurij Slyz | |||
| Name: | Yurij Slyz | |||
| Title: | Executive Director | |||
| By: | UBS SECURITIES LLC | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Associate Director | |||
| By: | XXXXX FARGO SECURITIES, LLC | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
SCHEDULE I
QWEST CORPORATION
| Principal Amount of | ||||
| Name of Underwriter | Initial Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
$ | 98,750,000 | ||
Xxxxxx Xxxxxxx & Co. LLC |
98,750,000 | |||
UBS Securities LLC |
98,750,000 | |||
Xxxxx Fargo Securities, LLC |
98,750,000 | |||
X.X. Xxxxxx Securities LLC |
25,000,000 | |||
RBC Capital Markets, LLC |
25,000,000 | |||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
7,500,000 | |||
U.S. Bancorp Investments, Inc. |
7,500,000 | |||
Ameriprise Financial Services, Inc. |
2,500,000 | |||
Fifth Third Securities, Inc. |
2,500,000 | |||
JJB Xxxxxxxx, XX Xxxxx LLC |
2,500,000 | |||
Xxxxxx Xxxxxxxxxx Xxxxx LLC |
2,500,000 | |||
Mizuho Securities USA Inc. |
2,500,000 | |||
Xxxxxx Xxxxxx & Company, Inc. |
2,500,000 | |||
Xxxxxxxxxxx & Co. Inc. |
2,500,000 | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
2,500,000 | |||
The Xxxxxxxx Capital Group, L.P. |
2,500,000 | |||
BB&T Capital Markets, a division of Xxxxx &
Xxxxxxxxxxxx, LLC |
1,250,000 | |||
X.X. Xxxxxxx & Co. |
1,250,000 | |||
City Securities Corporation |
1,250,000 | |||
X.X. Xxxx |
1,250,000 | |||
X.X. Xxxxxxxx & Co. |
1,250,000 | |||
Xxxxxxxxx & Company LLC |
1,250,000 | |||
Xxxxxxxx (HRC Investments) |
1,250,000 | |||
Xxxxx, Xxxxxxxx & Xxxxx, Inc. |
1,250,000 | |||
KeyBanc Capital Markets Inc. |
1,250,000 | |||
Mesirow Financial, Inc. |
1,250,000 | |||
Xxxxxx X. Xxxxx & Co. Incorporated |
1,250,000 | |||
Sterne, Agee & Xxxxx, Inc. |
1,250,000 | |||
Wedbush Securities Inc. |
1,250,000 | |||
Xxxxxxx Xxxxx & Company, LLC |
1,250,000 | |||
Total |
$ | 500,000,000 | ||
Schedule I
SCHEDULE II
| • | Final Term Sheet relating to the Securities, dated September 14, 2011. |
Schedule II
EXHIBIT A
QWEST CORPORATION
PRICE DETERMINATION AGREEMENT
September 14, 2011
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
| c/o | Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
| Xxxxxx Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||
| UBS Securities LLC 000 Xxxxxxxxxx Xxxx. Xxxxxxxx, Xxxxxxxxxxx 00000 |
||
| Xxxxx Fargo Securities, LLC 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated September 14, 2011 (the
“Underwriting Agreement”), between Qwest Corporation, a Colorado corporation (the
“Company”), and the several Underwriters named in Schedule I thereto (the
“Underwriters”). The Underwriting Agreement provides for the sale to the Underwriters, and
the purchase by the Underwriters, severally and not jointly, from the Company, subject to the terms
and conditions set forth therein, of $500,000,000 aggregate principal amount of the Company’s 7.50%
Notes due 2051 (the “Initial Securities”) to be issued pursuant to an Indenture
dated as of October 15, 1999, between the Company (formerly known as US WEST Communications, Inc.)
and Bank of New York Trust Company, National Association (as successor in interest to Bank One
Trust Company), as amended and supplemented to the date hereof, and as will be further supplemented
by the Eighth Supplemental Indenture between the Company and U.S. Bank National Association, as
trustee, to be dated as of September 21, 2011 relating to the Securities (as defined
Exhibit A-1
herein). This Agreement is the Price Determination Agreement referred to in the Underwriting
Agreement.
For all purposes of the Underwriting Agreement, “Time of Sale” means 2:30 p.m. (New
York City time) on the date of this Price Determination Agreement.
Pursuant to Section 1(b) of the Underwriting Agreement, the undersigned agree with the several
Underwriters that the purchase price for the Initial Securities to be paid by the several
Underwriters shall be 96.85% of the aggregate principal amount of the Initial Securities set forth
opposite the names of the Underwriters in Schedule I attached thereto; provided that such purchase
price will be 98.00% of the aggregate principal amount of the Initial Securities sold by the
Underwriters to certain institutions. In addition, pursuant to Section 1(c) of the Underwriting
Agreement, the Company hereby grants to the Underwriters an option to purchase up to an additional
$75,000,000 aggregate principal amount of the Company’s 7.50% Notes due 2051 (the “Option
Securities” and, together with the Initial Securities, the “Securities”).
The Company represents and warrants to the several Underwriters that the representations and
warranties of the Company set forth in Section 3 of the Underwriting Agreement are accurate as
though expressly made at and as of the date hereof.
THE RIGHTS AND DUTIES OF THE PARTIES TO THIS PRICE DETERMINATION AGREEMENT SHALL, PURSUANT TO
NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY CHOICE OF LAW PRINCIPLES THAT MIGHT CALL FOR THE APPLICATION OF THE LAW OF
ANY OTHER JURISDICTION.
This Price Determination Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Exhibit A-2
If the foregoing is in accordance with your understanding of the agreement among the
several Underwriters and the Company, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts and together with the Underwriting Agreement
shall be a binding agreement among the several Underwriters and the Company in accordance with its
terms and the terms of the Underwriting Agreement.
| Very truly yours, QWEST CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Confirmed as of the date first above mentioned:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
Incorporated
Xxxxxx Xxxxxxx & Co. LLC
UBS Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
| By: | XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | XXXXXX XXXXXXX & CO. LLC | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | UBS SECURITIES LLC | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit A-3
| By: | XXXXX FARGO SECURITIES, LLC | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit A-4
EXHIBIT B
Form of Opinion of Xxxxxxxx XxXxxxxxxx,
Associate General Counsel of Qwest Corporation
Associate General Counsel of Qwest Corporation
1. The Company is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation.
2. The Company has full corporate power and corporate authority to own or lease all the assets
owned or leased by it and, to the best of my knowledge, has all necessary and material
authorizations, approvals, orders, licenses, certificates, franchises, and permits of and from all
governmental regulatory officials and bodies to own its properties and to lawfully conduct its
business as described in the Registration Statement, the Time of Sale Information and the
Prospectus.
3. The execution and delivery by the Company of the Underwriting Agreement and the Indenture
and the performance by the Company of the transactions contemplated thereby (including the issuance
and sale of the Securities) will not (i) result in a violation of any of the terms or provisions of
the articles of incorporation or by-laws, each as amended, of the Company or (ii) violate or
conflict with any franchise or any judgment, ruling, decree, order, statute (including the
Communications Act of 1934), rule or regulation of any court or other governmental agency or body
(including the Federal Communications Commission) known to me and applicable to the business or
properties of the Company1 or (iii) result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company pursuant to the terms or provisions of,
or result in a breach or violation of any of the terms or provisions of, or constitute a default
under, or give any other party a right to terminate any of its obligations under, or result in the
acceleration of any obligation under, any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument to which the Company is a party or by which the
Company or any of its properties is or are bound or affected (the “applicable agreements”), other
than with respect to this clause (iii) any breaches, violations, defaults, terminations or
accelerations with respect to any applicable agreement that will not, or are not likely to, have a
Material Adverse Effect.
4. Except as set forth in the Registration Statement, the Time of Sale Information and the
Prospectus, to the best of my knowledge, there are no actions, suits or proceedings pending or
threatened against the Company or any of its officers, in their capacity as such, before or by any
United States federal or state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, which in my opinion is likely to have a Material Adverse
Effect.
| 1 | This opinion covers each of the states in the Company’s 14-state local service area (which includes Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming). |
Exhibit B-1
5. The Company has taken all corporate action necessary to authorize the execution and
delivery of the Securities and has duly executed and delivered the Securities. The Securities,
when duly authenticated in accordance with the terms of the Indenture and assuming due payment by
the Underwriters in accordance with the Underwriting Agreement, will entitle their holders to the
benefits provided by the Indenture and will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms, except (i) that the
enforcement thereof may be subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws, now or hereafter in effect, relating to creditors’
rights generally, (ii) the enforceability thereof is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law or in equity) and
that the remedy of specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought and (iii) certain provisions contained in the Indenture relating to
remedies may be limited by public policy, equitable principles or other provisions of applicable
laws, rules, regulations, court decisions or constitutional requirements, but in my judgment the
matters in this clause (iii) do not result in the remedies that remain available being inadequate
for the enforcement of the Indenture and the Securities.
6. No consent, approval, authorization or order of, or filing, registration, qualification or
declaration with, any court or United States federal, state or local governmental agency or body
(including the Federal Communications Commission) is required for (i) the execution, delivery and
performance by the Company of the Underwriting Agreement, the Securities or the Indenture by the
Company, (ii) the authorization, offer, issuance, sale or delivery of the Securities by the Company
or (iii) the consummation by the Company of the transactions on its part contemplated by the
Underwriting Agreement and the Indenture, except such as may have been previously obtained under
the Securities Act, the Exchange Act or the Trust Indenture Act and such as may be required under
foreign or state securities or blue sky laws and the rules and regulations promulgated thereunder
or the rules of FINRA in connection with the purchase and distribution of the Securities by the
Underwriters2.
7. The Company (i) has full corporate power and corporate authority to enter into the
Underwriting Agreement and the Indenture, (ii) has taken all corporate action necessary to
authorize the execution, delivery and performance of the Underwriting Agreement and the Indenture
and (iii) has duly executed and delivered the Underwriting Agreement and the Indenture.
8. The statements in the Company’s Quarterly Reports on Form 10-Q for the quarters ended March
31, 2011 and June 30, 2011 under the heading “Risk Factors—Risks Relating to Legal and Regulatory
Matters—We operate in a highly regulated industry, and are therefore exposed to restrictions on
our manner of doing business and a variety of claims relating to such regulation,” and in the
Company’s Annual Report on Form 10-K for the year ended December 31, 2010 under the caption
“Business—Regulation”, insofar as such statements purport to summarize applicable provisions of
the Communications Act of 1934 and the rules
| 2 | This opinion covers each of the states in the Company’s 14-state local service area (which includes Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming). |
Exhibit B-2
and regulations of the Federal Communications Commission, are accurate summaries in all
material respects of the provisions purported to be summarized.
I have participated in the preparation of the Registration Statement, the Time of Sale
Information and the Prospectus. Although I have not verified and am not opining upon or assuming
any responsibility for the accuracy or completeness of the information contained in the
Registration Statement, the Time of Sale Information and the Prospectus, on the basis of my
participation in the preparation of the Registration Statement, the Time of Sale Information and
the Prospectus and my discussions with certain officers and employees of the Company, certain of
its legal counsel, its independent registered public accountants and your representatives and
counsel, nothing has come to my attention which would lead me to believe that the Registration
Statement, as of the Effective Date (including any Rule 430 Information), 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, that the Time of Sale Information, at the
Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading or that the Prospectus or any supplement thereto, as of its date and as of the
date of this opinion, contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in the light of
the circumstances in which they were made, not misleading (except that I express no opinion with
respect to financial statements, schedules and other financial, statistical or accounting data
included in the Registration Statement, the Time of Sale Information or the Prospectus (or
incorporated by reference therein) or the Statement of Eligibility under the Trust Indenture Act of
the Trustee on Form T-1).
Exhibit B-3
EXHIBIT C
Form of Opinion of
Jones, Walker, Waechter, Poitevent, Carrère & Xxxxxxx, L.L.P
Jones, Walker, Waechter, Poitevent, Carrère & Xxxxxxx, L.L.P
1. (i) As of the date the Company filed its Annual Report on Form 10-K for the year ended
December 31, 2010 (the “10-K Date”), the Registration Statement, as of the Time of Sale,
the Time of Sale Information, and, as of its date, the Prospectus (and any supplement thereto),
including each document incorporated or deemed to be incorporated by reference therein, as of the
time such documents were filed, complied in all material respects as to form with the requirements
of the Securities Act, the Exchange Act and the Trust Indenture Act and (ii) at the 10-K Date, the
Indenture complied in all material respects as to form with the Trust Indenture Act and the
Indenture has been duly qualified under the Trust Indenture Act (except that we express no opinion
as to (a) financial statements, schedules and other financial or statistical data contained in the
Registration Statement, the Time of Sale Information or the Prospectus (or incorporated by
reference therein) and (b) the Statement of Eligibility under the Trust Indenture Act on Form T-1
(the “Form T-1”) contained in, made a part of or incorporated by reference in the Registration
Statement).
2. The Registration Statement became effective upon filing with the Commission under the
Securities Act and, to the best of our knowledge, no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A
of the Securities Act against the Company or in connection with the offering has been instituted or
is threatened or pending and, to the best of our knowledge, no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act shall have been received.
3. No consent, approval, authorization or order of, or filing, registration, qualification or
declaration with, any court or United States federal governmental agency or body is required for
(i) the execution, delivery and performance by the Company of the Underwriting Agreement, the
Securities or the Indenture by the Company, (ii) the authorization, offer, issuance, sale or
delivery of the Securities by the Company or (iii) the consummation by the Company of the
transactions on its part contemplated by the Underwriting Agreement and the Indenture, except such
as may have been previously obtained under the Securities Act, the Exchange Act or the Trust
Indenture Act or the New York Stock Exchange Listed Company Manual and such as may be required
under the rules of FINRA in connection with the purchase and distribution of the Securities by the
Underwriters.
4. The statements under the headings “Description of the Notes” and “Material United States
Federal Income Tax Consequences” in the Time of Sale Information and the Prospectus are accurate in
all material respects and, insofar as such description contains statements constituting a summary
of the legal matters or documents referred to therein, such statements fairly summarize the
information referred to therein.
5. Except as set forth in the Registration Statement, the Time of Sale Information and the
Prospectus, to the best of our knowledge, there are no actions, suits or proceedings pending or
threatened against the Company or any of the Subsidiaries or any of their respective
Exhibit C-1
officers in their capacity as such, before or by any United States federal court, commission,
regulatory body, administrative agency or other governmental body, domestic or foreign, which in
our opinion is likely to have a Material Adverse Effect.
6. The Company is not, and after giving effect to the issuance and sale of the Securities and
the application of the proceeds thereof, will not be, an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms
are defined in the Investment Company Act of 1940, as amended.
7. To the best of our knowledge, the issue and sale of the Securities and the execution,
delivery and performance by the Company of the Underwriting Agreement and the Indenture and the
consummation by the Company of the transactions contemplated thereby will not violate or conflict
with any statute, rule or regulation of any United States court or governmental agency or body
known to us and applicable to the business or properties of the Company, except where such
violation or conflict would not have a Material Adverse Effect.
Other than with respect to the opinion expressed in paragraph 4 above, we have not ourselves
verified the accuracy, completeness or fairness of the information included in the Registration
Statement, the Time of Sale Information and the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of the Company, certain of its legal
counsel and its independent registered public accountants and with the Underwriters and their
counsel. On the basis of such review and discussion (relying as to materiality upon the statements
of the officers and other representatives of the Company, although nothing has come to our
attention that would lead us to believe that it is unreasonable for us or you to so rely thereon),
but without assuming any responsibility for, or independently verifying, any information other than
as stated above, nothing has come to our attention that would lead us to believe that the
Registration Statement, as of the Effective Date (including any Rule 430 Information), 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, that the Time of Sale
Information, at the Time of Sale, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or that the Prospectus or any supplement thereto, as of
its date and as of the date of this letter, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were made, not misleading
(except that we express no belief with respect to (i) financial statements and notes thereto,
related schedules and any other financial data included in the Registration Statement, the Time of
Sale Information and the Prospectus, (ii) the Form T-1 or (iii) statements or omissions based upon
information furnished to the Company in writing by any Underwriter through the Representatives
expressly for use therein).
As special counsel to the Company, we do not as a matter of course review or pass on all
agreements or proceedings to which the Company or its subsidiaries have become parties nor have we
done so in connection with this opinion. Accordingly, whenever any statement in this letter is
qualified by the phrase “to the best of our knowledge” or “known to us” or a phrase of similar
import, such phrase is intended to mean the actual knowledge of information by the lawyers in our
firm who have been principally involved in negotiating the subject transaction and
Exhibit C-2
preparing the pertinent documents and any other lawyers in our firm devoting substantive
attention to matters for the Company, having substantial responsibility for managing the client
relationship with the Company or overseeing the firm’s provision of securities law advice to the
Company, but does not include the information that might be revealed if there were to be undertaken
a canvass of all lawyers in our firm, a general search of our files, a review of all of the
Company’s contacts or any other type of independent investigation. Any certificate or
representation obtained by us from the officers of the Company in connection with this opinion has
been relied upon by us as to factual matters without independent verification, but nothing has come
to our attention that would lead us to believe that it is unreasonable for us or you to rely
thereon.
In rendering the foregoing opinion, counsel may rely, to the extent they deem such reliance
proper, on the opinions (in form and substance reasonably satisfactory to Underwriters’ counsel) of
other counsel reasonably acceptable to Underwriters’ counsel as to matters governed by the laws of
jurisdictions other than the United States, and as to matters of fact, upon certificates of
officers of the Company and of government officials; provided that such counsel shall state that
the opinion of any other counsel is in form satisfactory to such counsel and, in such counsel’s
opinion, such counsel and you are justified in relying on such opinions of other counsel. Copies
of all such opinions and certificates shall be addressed to the Underwriters (or shall state that
the Underwriters may rely thereon) and shall be furnished to Underwriters’ counsel on the Closing
Date.
Exhibit C-3
EXHIBIT D
Qwest Corporation
$500,000,000 7.50% Notes due 2051
Pricing Term Sheet
Date: September 14, 2011
Issuer:
|
Qwest Corporation | |||
Security:
|
$500,000,000 7.50% Notes due 2051 | |||
Anticipated Ratings*:
|
[Ratings omitted]. | |||
Principal Amount:
|
$500,000,000 | |||
Over-allotment Option:
|
$75,000,000 | |||
Trade Date:
|
September 14, 2011 | |||
Settlement Date:
|
T+5; September 21, 2011 | |||
Maturity Date:
|
September 15, 2051 | |||
Coupon:
|
7.50% | |||
Interest Payment Dates:
|
March 15, June 15, September 15 and December 15 of each year, beginning December 15, 2011 | |||
Price to Public:
|
$ 25 per Note | |||
Optional Redemption:
|
Callable at par, in whole or in part, at any time on or after September 15, 2016 | |||
Listing:
|
The Issuer intends to list the Notes on the New York Stock Exchange and expects trading in the Notes to begin within 30 days after the Settlement Date. | |||
CUSIP/ISIN:
|
74913G 303 / US74913G3039 | |||
Joint Book-Running Managers:
|
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated | |||
| Xxxxxx Xxxxxxx & Co. LLC UBS Securities LLC Xxxxx Fargo Securities, LLC | ||||
Lead Managers:
|
X.X. Xxxxxx Securities LLC RBC Capital Markets, LLC | |||
Co-Managers:
|
SunTrust Xxxxxxxx Xxxxxxxx, Inc. U.S. Bancorp Investments, Inc. | |||
| * | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated toll free at 1-800-294-1322, Xxxxxx Xxxxxxx &
Co. LLC at 0-000-000-0000, UBS Securities LLC at 877-827-6444 ext. 561-3884 or Xxxxx Fargo
Securities, LLC at 0-000-000-0000.
