SECOND SUPPLEMENTAL INDENTURE, dated as of , 1998 (the
"Second Supplemental Indenture"), among MediaOne Group Funding, Inc., a
Delaware corporation (the "Company"), U S WEST, Inc. (to be renamed "MediaOne
Group, Inc.), a Delaware corporation (the "Guarantor") and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee") under the
Indenture dated as of , 1998 among the Company, the Guarantor and the
Trustee (as so supplemented, the "Indenture").
WHEREAS, the Company and the Guarantor executed and delivered the
Indenture to the Trustee to provide for the future issuance of the Company's
unsecured subordinated debt securities guaranteed by the Guarantor, to be
issued from time to time in one or more series as might be determined by the
Company under the Indenture, in an unlimited aggregate principal amount which
may be authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt
Securities to be known as its % Subordinated Deferrable Interest Notes due
2036, and the Guarantor desires to provide for the issuance of a Guarantee of
such Debt Securities (the "Note Guarantee" and, together with the Debt
Securities, the "Notes"), the form and substance of such Notes and the Note
Guarantee and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this Second Supplemental Indenture;
WHEREAS, MediaOne Finance Trust II, a Delaware statutory business
trust (the "Trust"), has offered to the public $ aggregate
liquidation amount of its % Trust Originated Preferred Securities (the
"Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the
Guarantor of $ aggregate liquidation amount of its Common
Securities, in $ aggregate principal amount of the Notes; and
WHEREAS, the Company and the Guarantor have requested that the
Trustee execute and deliver this Second Supplemental Indenture, and all
requirements necessary to make this Second Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company and to make the Guarantee endorsed thereon
when executed by the Guarantor a valid obligation of the Guarantor, have been
performed, and the execution and delivery of this Second Supplemental
Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company and the Guarantor covenant and agree with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITION OF TERMS
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii) Property
Trustee; (iv) Preferred Security Certificate; (v) Regular Trustees; and (vi)
Special Event; and
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Declaration" means the Amended and Restated Declaration of Trust
of MediaOne Finance Trust II, a Delaware business trust, dated as of
, 1998.
"Dissolution Event" means that as a result of an election by the
Guarantor, the Trust is to be dissolved in accordance with the Declaration
and the Notes held by the Property Trustee are to be distributed to the
holders of the Trust Securities issued by the Trust pro rata in accordance
with the Declaration.
"Maturity Date" means the date on which the Notes mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Additional Interest, if any.
2
"Senior Indebtedness" means with respect to the Company or
Guarantor, (i) the principal, premium, if any, and interest in respect of (A)
indebtedness of such obligor for money borrowed and (B) indebtedness
evidenced by securities, debentures, bonds or other similar instruments
issued by such obligor; (ii) all capital lease obligations of such obligor;
(iii) all obligations of such obligor issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such obligor
and all obligations of such obligor under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of such obligor for the reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar credit
transaction; (v) all obligations of the type referred to in clauses (i)
through (iv) of other persons for the payment of which such obligor is
responsible or liable as obligor, guarantor or otherwise; and (vi) all
obligations of the type referred to in clauses (i) through (v) of other
persons secured by any lien on any property or asset of such obligor (whether
or not such obligation is assumed by such obligor), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Notes, as the case may be, and (2) any indebtedness, including all other debt
securities and guarantees in respect of those debt securities, initially
issued to (y) any other MediaOne Trust or (z) any trusts, partnerships or any
other entities affiliated with the Guarantor which is a financing vehicle of
the Guarantor ("Financing Entity") in connection with an issuance by such
Financing Entity of preferred securities or other securities which are
similar to the Preferred Securities, including, without limitation, the %
Subordinated Deferrable Interest Notes due 2025 issued by the Company to
MediaOne Finance Trust I (the " % Notes") and the guarantee by the
Guarantor of the % Notes (the " % Notes Guarantee").
ARTICLE II
GENERAL TERMS AND CONDITIONS OF
THE NOTES
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT
There is hereby authorized:
(a) a series of Debt Securities designated the " % Subordinated
Deferrable Interest Notes due 2036", limited in aggregate principal amount to
$ , which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Notes pursuant to Section 2.4
of the Indenture; and
(b) a Guarantee of such Debt Securities.
3
SECTION 2.2 MATURITY
The Maturity Date will be October 29, 2036.
SECTION 2.3 FORM AND PAYMENT
Except as provided in Section 2.4, the Notes shall be issued in
fully registered certificated form without interest coupons. Principal and
interest on the Notes issued in certificated form will be payable, the
transfer of such Notes will be registrable and such Notes will be
exchangeable for Notes bearing identical terms and provisions at the office
or agency of the Trustee; PROVIDED, HOWEVER, that payment of interest may be
made at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Security Register. Notwithstanding the
foregoing, so long as the registered holder of any Notes is the Property
Trustee, the payment of the principal of and interest (including Additional
Interest, if any) on such Notes held by the Property Trustee will be made at
such place and to such account as may be designated by the Property Trustee.
SECTION 2.4 GLOBAL NOTE
In connection with a Dissolution Event;
(a) the Notes in certificated form may be presented to the Trustee
by the Property Trustee in exchange for a Global Note in an aggregate
principal amount equal to all Outstanding Notes, to be registered in the name
of the Depository, or its nominee, and delivered by the Trustee to the
Depository for crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees. The Company upon any such presentation
shall execute a Global Note in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in accordance with
the Indenture and this Second Supplemental Indenture. Payments on the Notes
issued as a Global Note will be made to the Depository; and
(b) if any Preferred Securities are held in non book-entry
certificated form, the Notes in certificated form may be presented to the
Trustee by the Property Trustee and any Preferred Security Certificate which
represents Preferred Securities other than Preferred Securities held by the
Clearing Agency or its nominee ("Non Book-Entry Preferred Securities") will
be deemed to represent beneficial interests in Notes presented to the Trustee
by the Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificates are presented to the Security Registrar
for transfer or reissuance at which time such Preferred Security Certificates
will be cancelled and a Note registered in
4
the name of the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security Certificate as the case
may be, with an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate cancelled will be executed by
the Company and delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this Second Supplemental Indenture. On
issue of such Notes, Notes with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be deemed to have
been cancelled.
SECTION 2.5 INTEREST
(a) Each Note will bear interest at the rate of % per annum (the
"Coupon Rate") from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, payable (subject to the
provisions of Article Four) quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (each, an "Interest Payment Date"),
commencing on , 1998, to the person in whose name such Note or
any predecessor Note is registered, at the close of business on the regular
record date for such interest installment, which, in respect of any Notes of
which the Property Trustee is the registered holder of or a Global Note,
shall be the close of business on the Business Day next preceding that
Interest Payment Date. Notwithstanding the foregoing sentence, if (i) the
Preferred Securities are no longer in book-entry only form or (ii) a
Dissolution Event has occurred and subsequent thereto the Notes are not
represented by a Global Note pursuant to the provisions of Section 2.11(c) of
the Indenture, the Company may select a regular record date for such interest
installment which shall be any date at least one Business Day before an
Interest Payment Date.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any period
shorter than a full quarterly period for which interest in computed, will be
computed on the basis of the actual number of days elapsed per 30-day month.
In the event that any date on which interest is payable on the Notes is not a
Business Day, then payment of interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
5
(c) If at any time while the Property Trustee is the holder of any
Notes, the Trust or the Property Trustee is required to pay any taxes, duties
assessments or governmental changes of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Notes held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes,
duties assessments or other governmental changes will be equal to the amounts
the Trust and the Property Trustee would have received had no such taxes,
duties, assessments or other government changes been imposed.
ARTICLE III
REDEMPTION OF THE NOTES
SECTION 3.1 SPECIAL EVENT REDEMPTION
If a Special Event has occurred and is continuing then,
notwithstanding Section 3.2 but subject to Section 3.3(c), the Company shall
have the right, upon not less than 30 days' nor more than 60 days' notice to
the registered holders of the Notes to redeem the Notes in whole or in part
for cash within 90 days following the occurrence of such Special Event at a
redemption price equal to 100% of the principal amount to be redeemed plus
any accrued and unpaid interest thereon to the date of such redemption (the
"Redemption Price").
SECTION 3.2 OPTIONAL REDEMPTION BY COMPANY
Subject to the provisions of Article Three of the Indenture and to
Section 3.3(c), the Company shall have the right to redeem the Notes, in
whole or in part, from time to time, on or after October 29, 2001, at the
Redemption Price. Any redemption pursuant to this paragraph will be made
upon not less than 30 days' nor more than 60 days' notice to the registered
holder of the Notes, at the Redemption Price.
SECTION 3.3 REDEMPTION PROCEDURES
(a) If the Notes are only partially redeemed pursuant to Section
3.1 or Section 3.2, the Notes will be redeemed pro rata or by any other
method utilized by the Trustee; PROVIDED that if at the time of redemption,
the Notes are registered as a Global Note, the Depository shall determine the
principal amount of such Notes held by each Noteholder to be redeemed in
accordance with its procedures.
(b) The Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or at such
6
earlier time as the Company determines and specifies in the notice of
redemption, provided the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 11:00 a.m. on the date such
Redemption Price is to be paid.
(c) If a partial redemption of the Notes would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities
are then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Notes in whole.
SECTION 3.4 NO SINKING FUND
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 EXTENSION OF INTEREST PAYMENT PERIOD
The Company shall have the right, at any time during the term of
the Notes, from time to time to extend the interest payment period of such
Notes for up to 20 consecutive quarters (the "Extended Interest Payment
Period"). To the extent permitted by applicable law, interest, the payment
of which has been deferred because of the extension of the interest payment
period pursuant to this Section 4.1, will bear interest thereon at the Coupon
Rate for each quarter of the Extended Interest Payment Period. At the end of
the Extended Interest Payment Period the Company shall pay all interest
accrued and unpaid on the Notes including any Additional Interest ("Deferred
Interest") which shall be payable to the holders of the Notes in whose names
the Notes are registered in the Security Register on the first record date
after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
extend such period, PROVIDED that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters. Upon the
termination of any Extended Interest Payment Period and upon the payment of
all Deferred Interest then due, the Company may select a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except
at the end thereof.
SECTION 4.2 NOTICE OF EXTENSION
(a) If the Property Trustee is the only registered holder of the
Notes at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to
7
both the Regular Trustees and the Property Trustee of its selection of such
Extended Interest Payment Period one Business Day before the earlier of (i)
the next succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable, or (ii) the date the Trust is required to
give notice of the record date or the date such Distributions are payable to
the New York Stock Exchange or other applicable self-regulatory organization
or to holders of the Preferred Securities issued by the Trust, but in any
event at least one Business Day before such record date.
(b) If the Property Trustee is not the only holder of the Notes at
the time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Notes written notice of its selection of such
Extended Interest Payment Period 10 Business Days before the earlier of (i)
the next succeeding Interest Payment Date, or (ii) the date the Company is
required to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Notes.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1 PAYMENT OF EXPENSES
In connection with the offering, sale and issuance of the Notes to
the Property Trustee in connection with the sale of the Trust Securities by
the Trust, the Company shall:
(a) pay for all costs and expenses relating to the offering, sale
and issuance of the Note, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 7.06 of the Indenture;
(b) pay for all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization of the Trust,
the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
8
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2 GUARANTEE OF PAYMENT OF EXPENSES
The Guarantor hereby fully and unconditionally guarantees the due
and punctual payment of all amounts that become due and payable by the
Company to any Person pursuant to Section 5.1.
ARTICLE VI
SUBORDINATION
SECTION 6.1 AGREEMENT TO SUBORDINATE
The Company and the Guarantor covenant and agree, and each holder
of Notes issued hereunder by holder's acceptance thereof likewise covenants
and agrees, that all Notes shall be issued subject to the provisions of this
Article Six; and each holder of a Note, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment by the Company of the principal of, premium, if any,
and interest on all Notes issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment
to the prior payment in full of all Senior Indebtedness of the Company,
whether outstanding at the date of this, Indenture or thereafter incurred.
The payment by the Guarantor of any obligation due under the Note Guarantee
issued hereunder shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment to the prior payment in
full of all Senior Indebtedness of the Guarantor, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Six shall prevent the occurrence of
any default or Event of Default hereunder.
9
SECTION 6.2 DEFAULT ON SENIOR INDEBTEDNESS
In the event and during the continuation of any default by the
Company or the Guarantor in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness of the Company or the
Guarantor, as the case may be, or in the event that the maturity of any
Senior Indebtedness of the Company or the Guarantor, as the case may be, has
been accelerated because of a default, then, in either case, no payment shall
be made by the Company with respect to the principal (including redemption
and sinking fund payments) of, or premium, if any, or interest on the Notes,
including payment with respect to any obligation due under the Guarantees.
In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any holder when such payment is prohibited by
the preceding paragraph of this Section 6.2, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of Senior Indebtedness or their respective representatives, or to the trustee
or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear,
but only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee within 90
days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of Senior Indebtedness.
SECTION 6.3 LIQUIDATION: DISSOLUTION; BANKRUPTCY
Upon any payment by the Company or the Guarantor, or distribution
of assets of the Company or the Guarantor of any kind or character, whether
in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company or the Guarantor,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or other proceedings, all amounts due upon all Senior Indebtedness of the
Company or the Guarantor, as the case may be, shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before
any payment is made by the Company or the Guarantor, as the case may be, on
account of the principal (and premium, if any) or interest on the Notes; and
upon any such dissolution or winding-up or liquidation or reorganization any
payment by the Company or the Guarantor, or distribution of assets of the
Company or the Guarantor of any kind or character, whether in cash, property
or securities, to which the holders of the Note or the Trustee would be
entitled to receive from the Company or the Guarantor, as the case may be,
except for the provisions of this Article Six, shall be paid by the Company
or the Guarantor, as the case may be, or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or
10
other Person making such payment or distribution, or by the holders of the
Notes or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness of the Company or the
Guarantor, as the case may be (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated
by the Company or the Guarantor, as the case may be) or their representative
or representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness may
have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is
made to the holders of Notes or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company or the Guarantor of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee or the holders of the Notes
before all Senior Indebtedness of the Company or the Guarantor is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders such Senior Indebtedness
or their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, and their respective interests may appear,
as calculated by the Company or the Guarantor, for application to the payment
of all Senior Indebtedness of the Company or the Guarantor, as the case may
be, remaining unpaid to the extent necessary to pay such Senior Indebtedness
in full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article Six, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company or
the Guarantor as reorganized or readjusted, or securities of the Company or
the Guarantor or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least
to the extent provided in this Article Six with respect to the Notes to the
payment of all Senior Indebtedness of the Company or the Guarantor, as the
case may be, that may at the time be outstanding, PROVIDED that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders
of such Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment.
11
The consolidation of the Company or the Guarantor with, or the merger of the
Company or the Guarantor into, another corporation or the liquidation or
dissolution of the Company or the Guarantor following the conveyance or
transfer of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in Article Ten
of the Indenture shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 6.3 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Ten of the Indenture.
Nothing in Section 6.2 or in this Section 6.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.6 of the Indenture.
SECTION 6.4 SUBROGATION
Subject to the payment in full of all Senior Indebtedness of the
Company or the Guarantor, the rights of the holders of the Notes shall be
subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the
Company or the Guarantor, as the case may be, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Notes shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders for such Senior Indebtedness of any
cash, property or securities to which the holders of the Notes or the Trustee
would be entitled except for the provisions of this Article Six, and no
payment over pursuant to the provisions of this Article Six, to or for the
benefit of the holders of such Senior Indebtedness by holders of the Notes or
the Trustee, shall, as between (i) the Company, its creditors other than
holders of Senior Indebtedness of the Company, and the holders of the Notes
or (ii) the Guarantor, its creditors other than the holders of Senior
Indebtedness of the Guarantor, and the holders of the Notes, be deemed to be
a payment by the Company or the Guarantor, as the case may be, to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article Six are and are intended solely for the purposes of defining the
relative rights of the holders of the Notes, on the one hand, and the holders
of such Senior Indebtedness on the other hand.
Nothing contained in this Article Six or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between (i) the
Company, its creditors other than the holders of Senior Indebtedness of the
Company, and the holders of the Notes or (ii) the Guarantor, its creditors
other than the holders of Senior Indebtedness of the Guarantor, and the
holders of the Notes, the obligation of the Company or the Guarantor, as the
case may be, which is absolute and unconditional, to pay to the holders of
the Notes the principal of (and premium, if any) and
12
interest on the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Notes and creditors of the Company or the
Guarantor, as the case may be, other than the holders of Senior Indebtedness
of the Company or the Guarantor, as the case may be, nor shall anything
herein or therein prevent the Trustee or the holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default
under the Indenture, subject to the rights, if any, under this Article Six of
the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company or the Guarantor, as the case may be, received upon
the exercise of any such remedy.
Upon any payment or distribution of assets of the Company or the
Guarantor referred to in this Article Six, the Trustee, subject to the
provisions of Section 7.1 of the Indenture, and the holders of the Notes,
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the holders of the
Notes, for the purposes of ascertaining the Persons entitled to participate
in such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company or the Guarantor, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Six.
SECTION 6.5 TRUSTEE TO EFFECTUATE SUBORDINATION
Each holder of Notes by such holder's acceptance thereof authorizes
and directs the Trustee on such holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Six and appoints the Trustee such holder's attorney-in-fact for any
and all such purposes.
SECTION 6.6 NOTICE BY THE COMPANY AND THE GUARANTOR
The Company or the Guarantor shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company or the
Guarantor that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Notes pursuant to the provisions of this
Article Six. Notwithstanding the provisions of this Article Six or any other
provision of the Indenture and this Second Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by the Trustee
in respect of the Notes
13
pursuant to the provisions of this Article Six, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
at the Principal Office of the Trustee from the Company or the Guarantor or a
holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 7.1 of the Indenture, shall be entitled in all respects
to assume that no such facts exist; PROVIDED, HOWEVER, that if the Trustee
shall not have received the notice provided for in this Section 6.6 at least
two Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Note),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the
same to the purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
The Trustee, subject to the provisions of Section 7.1 of the
Indenture, shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
of the Company or the Guarantor, as the case may be (or a trustee on behalf
of such holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Six, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Six, and if
such evidence is not furnished the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 6.7 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Six, in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
14
With respect to the holders of Senior Indebtedness of the Company
or the Guarantor, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this
Article Six, and no implied covenants or obligations with respect to the
holders of such Senior Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of such Senior Indebtedness and, subject to the provisions of
Section 7.1 of the Indenture, the Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to holders of
Notes, the Company, the Guarantor or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by virtue of
this Article Six or otherwise.
SECTION 6.8 SUBORDINATION MAY NOT BE IMPAIRED
No right of any present or future holder of any Senior Indebtedness
of the Company or the Guarantor to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or the Guarantor, as the case may be, or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company or the Guarantor, as the case may be, with the
terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company or the Guarantor
may, at any time and from time to time, without the consent of or notice to
the Trustee or the holders of the Notes, without incurring responsibility to
the holders of the Notes and without impairing or releasing the subordination
provided in this Article Six or the obligations hereunder of the holders of
the Notes to the holders of such Senior Indebtedness, do any one or more of
the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, such Senior Indebtedness, or otherwise
amend or supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company or the Guarantor, as the case may be, and any other Person.
15
ARTICLE VII
COVENANTS
SECTION 7.1 LISTING ON EXCHANGES
If the Notes are to be issued as a Global Note in connection with
the distribution of the Notes to the holders of the Preferred Securities
issued by the Trust upon a Dissolution Event, the Company will use its best
efforts to list such Notes on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed.
ARTICLE VIII
FORM OF NOTE
SECTION 8.1 FORM OF NOTE
The Notes, the Note Guarantee and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT -
This Note is a Global Note within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or a nominee of a
Depository. This Note is exchangeable for Notes registered in the name of a
person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Note is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
issuer or its agent for registration of transfer, exchange or payment, and
any Note issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.]
No. $
-------------------------- --------------------------
16
MediaOne Group Funding, Inc.
% SUBORDINATED DEFERRABLE INTEREST NOTE
DUE 2036
MEDIAONE GROUP FUNDING, INC., a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to or
registered assigns, the principal sum of Dollars on October 29,
2036, and to pay interest on said principal sum from , 1998 or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 31, June 30, September 30
and December 31 of each year commencing , 1998 at the rate of %
per annum until the principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Note is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Note (or one or more Predecessor Securities, as defined in
said Indenture) is registered at the close of business on the regular record
date for such interest installment [which shall be the close of business on the
business day next preceding such Interest Payment Date unless otherwise provided
for in the Indenture]. [IF PURSUANT TO THE PROVISIONS OF SECTION 2.11(C) OF THE
INDENTURE THE NOTES ARE NO LONGER REPRESENTED BY A GLOBAL NOTE -- which shall be
the close of business on the ____ business day next preceding such Interest
Payment Date.] Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered holders on
such regular record date, and may be paid to the person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on a special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
this series of Notes not less than 10 days prior to such special record date, or
may be paid at any time in any other lawful manner not
17
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Note shall be payable at the office
or agency of the Trustee maintained for that purpose in any coin or currency
of the United States of America which at the time of payment is legal tender
for payment of public and private debts; PROVIDED, HOWEVER, that payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Note is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Note will be made at such place and to such account as may
be designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Note is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each Holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such Holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
18
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated , 1998
-------------- ---
MEDIAONE GROUP FUNDING, INC.
By
----------------------------
Name:
Title:
SEAL
Attest:
By
-------------------------
Name:
Title: Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By
------------------------
Authorized Signatory
19
[FORM OF GUARANTEE]
FOR VALUE RECEIVED, U S WEST, Inc. (to be renamed MediaOne Group,
Inc.), a Delaware corporation (the "Guarantor"), hereby unconditionally
guarantees to the holder of the Security upon which this Guarantee is
endorsed the due and punctual payment of the principal of, sinking fund
payment, if any, premium, if any, or interest on said Security, when and as
the same shall become due and payable, whether at maturity, upon redemption
or otherwise, according to the terms thereof and of the Indenture referred to
therein.
The Guarantor agrees to determine, at least one Business Day prior
to the date upon which a payment of principal of, sinking fund payment, if
any, premium, if any, or interest on said Security is due and payable,
whether the Company has available the funds to make such payment as the same
shall become due and payable. In case of the failure of the Company
punctually to pay any such principal, sinking fund payment, if any, premium,
if any, or interest, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether
at maturity, upon redemption, or otherwise, and as if such payment were made
by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security of said Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of
said Security with respect to any provisions thereof, the recovery of any
judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to said Security or
indebtedness evidenced thereby, and all demands whatsoever and covenants that
this Guarantee will not be discharged except by complete performance of the
obligations contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of
said Security against the Company in respect of any amounts paid by the
Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not, without the consent of the holders of all of
the Securities then outstanding, be entitled to enforce or to receive any
payments arising out of or based upon such right of subrogation until the
principal of and premium, if any, and interest on all Securities
20
shall have been paid in full or payment thereof shall have been provided for
in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the
Securities to the holders of the Securities it is determined by a final
decision of a court of competent jurisdiction that such payment shall be
avoided by a trustee in bankruptcy (including any debtor-in-possession) as a
preference under 11 U.S.C. Section 547 and such payment is paid by such
holder to such trustee in bankruptcy, then and to the extent of such
repayment, the obligations of the Guarantor hereunder shall remain in full
force and effect.
The obligations of the Guarantor under this Guarantee are, to the
extent provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness, and this Guarantee
is issued subject to the provisions of the Indenture with respect thereto.
Each Holder of the Security upon which this Guarantee is endorsed, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder of the Security
upon which this Guarantee is endorsed, by his or her acceptance thereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each
Holder upon said provisions.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on
such Security shall have been signed by the Trustee (or the Authentication
Agent).
This Guarantee shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, U S WEST, Inc. (to be renamed MediaOne Group,
Inc.) has caused this Guarantee to be executed.
U S WEST, Inc. (to be renamed
MediaOne Group, Inc.)
[SEAL]
By:_____________________ By:________________________
Name: Name:
Title: Secretary Title:
21
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and
pursuant to an indenture (the "Base Indenture") dated as of , 1998
among the Company, U S WEST Inc. (to be renamed MediaOne Group, Inc.), a
Delaware corporation, as Guarantor (the "Guarantor") and Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee"), as supplemented
by the First Supplemental Indenture dated as of , 1998 among
the Company, the Guarantor and the Trustee and the Second Supplemental
Indenture dated as of , 1998 among the Company, the Guarantor and
the Trustee (the Base Indenture as so supplemented, the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders
of the Notes. By the terms of the Indenture, the Notes are issuable in
series which may vary as to amount, date of maturity, rate of interest and in
other respects as in the Indenture provided. This series of Notes is limited
in aggregate principal amount as specified in said Second Supplemental
Indenture.
Because of the occurrence and continuation of a Special Event,
the Company shall have the right to redeem this Note at the option of the
Company, without premium or penalty, in whole or in part, at the principal
amount together with any interest accrued thereon to the date of such
redemption (the "Redemption Price"). The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Company determines. The Company shall have the right to
redeem this Note at the option of the Company, without premium or penalty, in
whole or in part at any time on or after October 29, 2001, at the Redemption
Price. Any redemption pursuant to this paragraph will be made upon not less
than 30 nor more than 60 days' notice, at the Redemption Price. If the Notes
are only partially redeemed by the Company, the Notes will be redeemed pro
rata or by lot or by any other method utilized by the Trustee; PROVIDED that
if, at the time of redemption, the Notes are registered as a Global Note, the
Depository shall determine the principal amount of such Notes held by each
Noteholder to be redeemed in accordance with its procedures.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal
22
of all of the Notes may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Notes; PROVIDED, HOWEVER, that no such supplemental indenture shall (i)
extend the fixed maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without
the consent of the Holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the Holders of which are required to consent
to any such supplemental indenture, without the consent of the Holders of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount
of the Notes of any series at the time outstanding affected thereby, on
behalf of all of the Holders of the Notes of such series, to waive any past
default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Notes of such
series and except as provided in Section 4.06 of the Base Indenture. Any such
consent or waiver by the registered Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders and owners of this Note and of any Note issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and in
the money herein prescribed.
The Company shall have the right at any time during the term of the
Notes from time to time to extend the interest payment period of such Notes
to up to 20 consecutive quarters (an "Extended Interest Payment Period"), at
the end of which period the Company shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the
23
Notes to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
PROVIDED that such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters. At the
termination of any such Extended Interest Payment Period and upon the payment
of all accrued and unpaid interest and any additional amounts then due, the
Company may select a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered holder hereof
on the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in the
borough of Manhattan, the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or
the Trustee duly executed by the registered holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will
be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any paying agent and any Security Registrar may
deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Note
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[The debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any
24
integral multiple thereof.] [This Global Note is exchangeable for Notes in
definitive form only under certain limited circumstances set forth in the
Indenture. Notes of this series so issued are issuable only in registered
form without coupons in denominations of $25 and any integral multiple
thereof.] As provided in the Indenture and subject to certain limitations
[herein and] therein set forth, Notes of this series [so issued] are
exchangeable for a like aggregate principal amount of Notes of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF NOTES AND GUARANTEES
SECTION 9.1 ORIGINAL ISSUE OF NOTES AND GUARANTEES
Upon execution of this Second Supplemental Indenture, Notes in the
aggregate principal amount of $ may be executed by the Company
and Note Guarantees endorsed thereon executed by the Guarantor. Such Notes
and Note Guarantees endorsed thereon may be delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Notes to or upon the written order of the Company, signed by its President or
any Vice President and its Secretary or an Assistant Secretary, without any
further action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 RATIFICATION OF INDENTURE
The Indenture, as supplemented by this Second Supplemental
Indenture, is in all respects ratified and confirmed, and this Second
Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided. The provisions of this Second
Supplemental Indenture shall supersede the provisions of the Indenture to the
extent the Indenture is inconsistent herewith.
SECTION 10.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation
25
as to the validity or sufficiency of this Second Supplemental Indenture.
SECTION 10.3 GOVERNING LAW
This Second Supplemental Indenture and each Note shall be deemed to
be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 10.4 SEPARABILITY
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental
Indenture and the Notes shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 10.5 COUNTERPARTS
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
26
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
MEDIAONE GROUP FUNDING, INC.
By:______________________________
Name:
Title:
U S WEST, INC. (to be renamed MediaOne
Group, Inc.)
By:______________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Name:
Title:
27
(FACE OF NOTE)
No. D-1 $
MediaOne Group Funding, Inc.
% SUBORDINATED DEFERRABLE INTEREST NOTE
DUE 2036
MEDIAONE GROUP FUNDING, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to The
First National Bank of Chicago, as Property Trustee of MediaOne Finance Trust
II, pursuant to that certain Amended and Restated Declaration of Trust dated
as of , or registered assigns, the principal sum of
Dollars on October 29, 2036, and to pay interest on said principal sum from
or from the most recent interest payment date (each such date,
an "Interest Payment Date") to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in arrears on March
31, June 30, September 30 and December 31 of each year commencing
at the rate of % per annum until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the same rate per annum. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on
this Note is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Note (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment which shall be the close of
business on the business day next preceding such Interest Payment Date unless
otherwise provided for in the Indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to
the registered holders on such regular record date, and may be paid to the
person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall
be given to the registered holders of this series of Notes not less than 10
days prior to such special record date, or may be paid at any time in any
other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Note shall be payable at the office
or agency of the Trustee maintained for that purpose in any coin or currency
of the United States of America which at the time of payment is legal tender
or payment of public and private debts; PROVIDED, HOWEVER, that payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Note is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Note will be made at such place and to such account as may
be designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Note is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each Holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such Holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: ,
---------------
MEDIAONE GROUP FUNDING, INC.
By
----------------------------
Name:
Title:
SEAL
Attest:
By
---------------------
Name:
Title:
3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By
----------------------------
Authorized Signatory
(GUARANTEE)
FOR VALUE RECEIVED, U S WEST, Inc. (to be renamed "MediaOne Group,
Inc."), a Delaware corporation (the "Guarantor"), hereby unconditionally
guarantees to the holder of the Security upon which this Guarantee is
endorsed the due and punctual payment of the principal of, sinking fund
payment, if any, premium, if any, or interest on said Security, when and as
the same shall become due and payable, whether at maturity, upon redemption
or otherwise, according to the terms thereof and of the Indenture referred to
therein.
The Guarantor agrees to determine, at least one Business Day prior
to the date upon which a payment of principal of, sinking fund payment, if
any, premium, if any, or interest on said Security is due and payable,
whether the Company has available the funds to make such payment as the same
shall become due and payable. In case of the failure of the Company
punctually to pay any such principal, sinking fund payment, if any, premium,
if any, or interest, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether
at maturity, upon redemption, or otherwise, and as if such payment were made
by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security of said Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of
said Security with respect to any provisions thereof, the recovery of any
judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to said Security or
indebtedness evidenced thereby, and all demands whatsoever and covenants that
this Guarantee will not be discharged except by complete performance of the
obligations contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of
said Security against the Company in respect of any amounts paid by the
Guarantor pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER,
that the Guarantor shall not, without the consent of the holders of all of
the Securities then outstanding, be entitled to enforce or to receive any
payments arising out of or based upon such right of subrogation until the
principal of and premium, if any, and interest on all Securities shall have
been paid in full or payment thereof shall have been provided for in
accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the
Securities to
the holders of the Securities it is determined by a final decision of a court
of competent jurisdiction that such payment shall be avoided by a trustee in
bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such holder to such trustee in
bankruptcy, then and to the extent of such repayment, the obligations of the
Guarantor hereunder shall remain in full force and effect.
The obligations of the Guarantor under this Guarantee are, to the
extent provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness, and this Guarantee
is issued subject to the provisions of the Indenture with respect thereto.
Each Holder of the Security upon which this Guarantee is endorsed, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder of the Security
upon which this Guarantee is endorsed, by his or her acceptance thereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each
Holder upon said provisions.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on
such Security shall have been signed by the Trustee (or the Authentication
Agent).
This Guarantee shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, U S WEST, Inc. (to be renamed "MediaOne Group,
Inc.") has caused this Guarantee to be executed.
U S WEST, Inc.
[SEAL]
By: By:
---------------------------- ----------------------------
Name: Name:
Title: Title:
6
(REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and
pursuant to an indenture (the "Base Indenture") dated as of
among U S WEST, Inc. (to be renamed "MediaOne Group, Inc."), a Delaware
corporation, as Guarantor (the "Guarantor"), and Norwest Bank Minnesota,
National Association, as Trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture dated as of among the Company,
the Guarantor and the Trustee and the Second Supplemental Indenture dated as
of among the Company, the Guarantor and the Trustee (the
Base Indenture as so supplemented, the "Indenture"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Notes. By the terms of the Indenture, the Notes are issuable in series which
may vary as to amount, date of maturity, rate of interest and in other
respects as in the Indenture provided. This series of Notes is limited in
aggregate principal amount as specified in said Second Supplemental Indenture.
Because of the occurrence and continuation of a Special Event, the
Company shall have the right to redeem this Note at the option of the
Company, without premium or penalty, in whole or in part, at the principal
amount together with any interest accrued thereon to the date of such
redemption (the "Redemption Price"). The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Company determines. The Company shall have the right to
redeem this Note at the option of the Company, without premium or penalty, in
whole or in part at any time on or after October 29, 2001 (an "Optional
Redemption"), at the Redemption Price. Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice,
at the Redemption Price. If the Notes are only partially redeemed by the
Company, the Notes will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; PROVIDED that if, at the time of redemption, the
Notes are registered as a Global Note, the Depository shall determine the
principal amount of such Notes held by each Noteholder to be redeemed in
accordance with its procedures.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Notes may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Notes; PROVIDED, HOWEVER, that no such supplemental indenture shall (i)
extend the fixed maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without
the consent of the Holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the Holders of which are required to consent
to any such supplemental indenture, without the consent of the Holders of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount
of the Notes of any series at the time outstanding affected thereby, on
behalf of all of the Holders of the Notes of such series, to waive any past
default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Notes of such
series and except as provided in Section 4.06 of the Base Indenture. Any such
consent or waiver by the registered Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders and owners of this Note and of any Note issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and in
the money herein prescribed.
The Company shall have the right at any time during the term of the
Notes from time to time to extend the interest payment period of such Notes
to up to 20 consecutive quarters (an "Extended Interest Payment Period"), at
the end of which period the Company shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the Notes to
the extent that payment of such interest is enforceable under applicable
law). Before the termination of any such Extended Interest Payment Period,
the Company may further extend such Extended Interest Payment Period,
PROVIDED that such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters. At the
termination of any such Extended Interest Payment Period and upon the payment
of all accrued and unpaid interest and any additional amounts then due, the
Company may select a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered holder hereof
on the Security
8
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the borough of Manhattan,
the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any paying agent and any Security Registrar may
deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Note
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Notes of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Notes of this series so issued are exchangeable for a like
aggregate principal amount of Notes of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
9
