FIFTH SUPPLEMENTAL
INDENTURE dated as of May 16, 2007 (this “
Supplemental Indenture ”) by and between QWEST
CORPORATION, a Colorado corporation (formerly known as U S WEST
Communications, Inc.) (the “ Company ”), and
U.S. BANK NATIONAL ASSOCIATION, as trustee under the Indenture (as
defined below) with respect to the Notes (as defined below) (the
“ Trustee ”), as supplemented by the First
Supplemental Indenture (as defined below), the Second Supplemental
Indenture (as defined below), the Third Supplemental Indenture (as
defined below) and the Fourth Supplemental Indenture (as defined
below). The Trustee, and each other trustee appointed as such with
respect to the Securities of any series issued under the Indenture
(as defined below), shall be the “Trustee” (as defined
in the Indenture, as supplemented hereby) for all purposes under
the Indenture with respect to the applicable series of Securities
but, for the avoidance of doubt, not with respect to any series of
Securities for which such Trustee has not been appointed trustee
under the terms of the Indenture and/or any supplement
thereto).
Each party agrees
as follows for the benefit of the other party and for the equal and
ratable benefit of the holders of Notes:
WHEREAS, the
Company and Bank of New York Trust Company, National Association
(as successor in interest to Bank One Trust Company, National
Association), are parties to that certain Indenture dated as of
October 15, 1999 (the “ Base Indenture ,”
and as supplemented by the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture, the
Fourth Supplemental Indenture and this Fifth Supplemental
Indenture, the “ Indenture ”) providing for the
issuance from time to time of senior debt securities (“
Securities ”) to be issued in one or more
series;
WHEREAS, the
Company and the Trustee are parties to the First Supplemental
Indenture (the “ First Supplemental Indenture ”)
dated as of August 19, 2004, providing for the issuance by the
Company of a series of Securities, designated as its 7.875% Notes
due 2011, in an aggregate principal amount of
$575,000,000.
WHEREAS, the
Company and the Trustee are parties to the Second Supplemental
Indenture (the “ Second Supplemental Indenture
”) dated as of November 23, 2004, providing for the issuance
by the Company of Additional Notes of its series of Securities
designated as its 7.875% Notes due 2011, in an aggregate principal
amount of $250,000,000.
WHEREAS, the
Company and the Trustee are parties to the Third Supplemental
Indenture (the “ Third Supplemental Indenture ”)
dated as of June 17, 2005, providing for the issuance by the
Company of a series of Securities designated as its 7.625% Notes
due 2015, in an aggregate principal amount of $400,000,000 and a
series of Securities designated as its Floating Rate Notes due
2013, in an aggregate principal amount of $750,000,000.
WHEREAS, the
Company and the Trustee are parties to the Fourth Supplemental
Indenture (the “ Fourth Supplemental Indenture
”) dated as of August 8, 2006, providing for the issuance by
the Company of a series of Securities designated as its 7.5% Notes
due 2014, in an aggregate principal amount of
$600,000,000.
WHEREAS, the
Company desires and has requested the Trustee to join it in the
execution and delivery of this Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series
of Securities, designated as its 6.5% Notes due 2017 (the “
Notes ”) in an initial aggregate principal amount of
$500,000,000. The Notes shall be substantially in the form attached
hereto as Exhibit A .
WHEREAS,
Section 9.01 of the Base Indenture provides that a
supplemental indenture may be entered into by the Company and the
Trustee without the consent of any Holders to establish the form or
terms of Securities of any Series as permitted by Section 2.02
of the Base Indenture;
WHEREAS, the
conditions set forth in the Indenture for the execution and
delivery of this Supplemental Indenture have been complied with;
and
WHEREAS, all
things necessary to make this Supplemental Indenture a valid
agreement of the Company and the Trustee, in accordance with its
terms, and a valid amendment of, and supplement to, the Indenture
have been done.
NOW, THEREFORE, in
consideration of the premises and the purchase and acceptance of
the Notes by the holders thereof, the Company covenants and agrees
with the Trustee, for the equal and ratable benefit of the Holders,
that the Indenture is supplemented and amended, to the extent
expressed herein, as follows:
ARTICLE ONE
THE NOTES
Section 1.01
Designation of Notes .
The changes,
modifications and supplements to the Indenture effected by this
Supplemental Indenture shall be applicable only with respect to,
and govern the terms of the Notes, which shall not be limited in
aggregate principal amount, and shall not apply to any other
Securities that have been or may be issued under the Indenture
unless a supplemental indenture with respect to such other
Securities specifically incorporates such changes, modifications
and supplements. Pursuant to this Supplemental Indenture, there is
hereby created and designated a series of Securities under the
Indenture entitled “6.5% Notes due June 1, 2017.” The
Notes shall be in the form of Exhibit A hereto. The Notes
may bear an appropriate legend regarding original issue discount
for federal income tax purposes. Subject to the terms in the
Indenture, as supplemented by this Supplemental Indenture, the
Company may, at its option, without consent from the Holders, issue
additional Notes from time to time. For all purposes under the
Indenture, the term “Notes” shall include the Notes
initially issued on the date of original issuance of the Notes and
any other Notes issued after such date under the Indenture, as
supplemented hereby.
2
Section 1.02
Other Terms of the Notes .
Without limiting
the foregoing provisions of this Article One, the terms of the
Notes shall be as set forth in the form of Note set forth in
Exhibit A hereto and as provided in the
Indenture.
The Notes shall be
payable and may be presented for payment, purchase, conversion,
registration of transfer and exchange, without service charge, at
the office of the Company maintained for such purpose in New York,
New York, which shall initially be the office or agency of the
Trustee.
ARTICLE TWO
MISCELLANEOUS
Section 2.01
Amendment and Supplement .
This Supplemental
Indenture or the Notes may be amended or supplemented as provided
for in the Indenture.
Section 2.02
Indenture .
In the event of
any conflict between this Supplemental Indenture and the Indenture,
the provisions of this Supplemental Indenture shall
prevail.
Section 2.03
Governing Law .
The laws of the
State of New York shall govern this Supplemental Indenture and the
Securities of the Series created hereby.
Section 2.04
No Adverse Interpretation of Other Agreements .
This Supplemental
Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this
Supplemental Indenture.
Section 2.05
Successors and Assigns .
All covenants and
agreements of the Company in this Supplemental Indenture and the
Notes shall bind its successors and assigns. All agreements of the
Trustee in this Supplemental Indenture shall bind its successors
and assigns.
Section 2.06
Duplicate Originals .
This Supplemental
Indenture may be executed in counterparts, each of which shall be
an original, but such counterparts shall together constitute but
one instrument.
3
Section 2.07
Severability .
In case any one or
more of the provisions contained in this 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
Supplemental Indenture or of the Notes.
[Signature Pages Follow]
4
Exhibit A
[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 OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT 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 THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
EXCEPT AS
OTHERWISE PROVIDED IN SECTION 2.15 OF THE INDENTURE, TRANSFERS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE
INDENTURE.](1)
THE NOTES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE ‘‘SECURITIES
ACT’’) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH
(1)
This legend to appear only on Global Notes.
A- 1
RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.
[THIS GLOBAL NOTE
IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). NEITHER THIS TEMPORARY GLOBAL NOTE
NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT
AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF
THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE
INDENTURE.](2)
(2)
This legend to appear only on Temporary Regulation S Global
Notes.
A- 2
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QWEST CORPORATION
6.5% Note due 2017
QWEST CORPORATION,
a corporation duly organized and existing under the laws of the
State of Colorado (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being herein called
the “ Company ”), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the
principal sum of
[ ]
DOLLARS
($[ ])
(or such lesser amount as shall be listed on the Schedule of
Increases or Decreases in Global Note attached hereto) on June 1,
2017 (the “ Maturity Date ”), unless previously
redeemed on any redemption date, by wire transfer of immediately
available funds of such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts and to pay interest thereon
semiannually on each June 1 and December 1, commencing December 1,
2007 (each, an “ Interest Payment Date ”), and
on the Maturity Date at the rate per annum specified in the title
of this Note, from May 16
