<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
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[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____________ to _____________
COMMISSION FILE NUMBER 000-22609
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QWEST COMMUNICATIONS INTERNATIONAL INC.
(Exact name of registrant specified in its charter)
---------------
Delaware 84-1339282
-------- ----------
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
700 QWEST TOWER
555 SEVENTEENTH STREET
DENVER, COLORADO 80202
----------------------
(Address of principal executive offices)
(303) 992-1400
--------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
The number of shares of Common Stock, $.01 par value, outstanding (the only
class of common stock of the Company outstanding) was approximately 352 million,
as of April 30, 1999.
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QWEST COMMUNICATIONS INTERNATIONAL INC.
QUARTER ENDED MARCH 31, 1999
TABLE OF CONTENTS
Page
----
PART I. Financial Information
Item 1. Financial Statements (Unaudited):
Condensed Consolidated Statements of Operations for the
Three Months Ended March 31, 1999 and 1998 3
Condensed Consolidated Balance Sheets as of March 31, 1999
and December 31, 1998 4
Condensed Consolidated Statements of Cash Flows for the
Three Months Ended March 31, 1999 and 1998 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations for the Three Months Ended
March 31, 1999 and 1998 12
Item 3. Quantitative and Qualitative Disclosures About Market Risk 21
PART II. Other Information
Item 1. Legal Proceedings 22
Item 2. Changes in Securities and Use of Proceeds 22
Item 6 Exhibits and Reports on Form 8-K 22
Signature Page 26
2
<PAGE>
Part I. Financial Information
Item 1. Condensed Financial Statements
QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In Millions, Except Per Share Information)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
----------------------
1999 1998
----------------------
<S> <C> <C>
Revenue:
Communications services $737.2 $ 42.6
Construction services 141.2 134.5
------ ------
Total revenue 878.4 177.1
------ ------
Operating expenses:
Access and network operations 432.9 30.8
Construction services 76.8 97.4
Selling, general and administrative 213.3 44.4
Depreciation and amortization 95.9 8.0
------ ------
Total operating expenses 818.9 180.6
------ ------
Earnings (loss) from operations 59.5 (3.5)
Other (income) expense:
Interest expense, net 32.0 14.4
Other (income) expense, net 2.9 (8.1)
------ ------
Earnings (loss) before income taxes 24.6 (9.8)
Income tax expense (benefit) 19.8 (3.2)
------ ------
Net earnings (loss) $ 4.8 $ (6.6)
====== ======
Net earnings (loss) per share - basic $ 0.01 $(0.03)
====== ======
Net earnings (loss) per share - diluted $ 0.01 $(0.03)
====== ======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
3
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QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
As of March 31, 1999 and December 31, 1998
(In Millions)
(Unaudited)
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash $ 119.0 $ 462.8
Trade accounts and notes receivable, net 656.6 628.1
Prepaid expenses and other 321.2 348.2
-------- --------
Total current assets 1,096.8 1,439.1
Property and equipment, net 2,827.1 2,655.4
Excess of cost over net assets acquired, net 3,394.9 3,402.0
Other, net 690.4 571.1
-------- --------
TOTAL ASSETS $8,009.2 $8,067.6
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 227.1 $ 205.1
Facility costs accrued and payable 235.3 300.2
Construction costs accrued and payable 147.1 145.9
Accrued expenses and other 395.8 586.3
-------- --------
Total current liabilities 1,005.3 1,237.5
Debt and capital lease obligations, net of current portion 2,319.9 2,307.1
Other long-term liabilities 283.1 284.8
Commitments and contingencies
Stockholders' equity:
Preferred stock - $.01 par value; authorized 25.0 million
shares; no shares issued and outstanding - -
Common stock - $.01 par value; authorized 2,000 million shares;
issued and outstanding --
351 million shares at March 31, 1999;
347 million shares at December 31, 1998 3.5 3.5
Paid-in capital 5,210.5 5,108.4
Accumulated other comprehensive income 58.0 2.2
Accumulated deficit (871.1) (875.9)
-------- --------
Total stockholders' equity 4,400.9 4,238.2
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $8,009.2 $8,067.6
======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
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QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Millions)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
1999 1998
------- -------
<S> <C> <C>
Net cash provided by (used in) operating activities $ (79.6) $ 53.5
------- -------
Cash flows from investing activities:
Acquisitions and other (15.3) 0.5
Expenditures for property and equipment (299.8) (142.1)
------- -------
Net cash used in investing activities (315.1) (141.6)
------- -------
Cash flows from financing activities:
Proceeds from long-term debt - 300.0
Repayments of long-term debt (1.8) (19.4)
Proceeds from employee stock transactions 58.0 1.8
Other (5.3) (0.9)
------- -------
Net cash provided by financing activities 50.9 281.5
------- -------
Net (decrease) increase in cash and cash equivalents (343.8) 193.4
Cash and cash equivalents, beginning of period 462.8 379.8
------- -------
Cash and cash equivalents, end of period $ 119.0 $ 573.2
======= =======
Supplemental disclosure of significant non-cash investing activities:
Unrealized gain on marketable equity securities, net of tax $ 57.2 $ -
======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
<PAGE>
QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1999 and 1998
(1) Business and Background
Qwest Communications International Inc. and subsidiaries ("Qwest" or the
"Company") is a leading Internet communications company engaged in two core
business segments: Communications Services and Construction Services.
Communications Services provides a full range of voice, data, video and
related services to business customers, governmental agencies and consumers.
In addition, it provides high-volume voice and conventional private line
services to other communications providers, Internet service providers
("ISPs") and other data service companies.
Construction Services constructs and installs fiber optic systems for
other communications providers, as well as for the Company's own use.
(2) Basis of Presentation
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with the rules and regulations of the
Securities and Exchange Commission ("SEC"). Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. In the opinion of management, the
condensed consolidated financial statements include all adjustments,
consisting of normal recurring items, necessary to fairly present the results
of operations, financial position and cash flows for the periods presented.
The results of operations for any interim period are not necessarily
indicative of results for the full year. These financial statements should
be read in conjunction with the audited financial statements included in the
Company's Annual Report on Form 10-K (as incorporated by reference from its
annual report to shareholders) for the year ended December 31, 1998. Certain
prior year balances have been reclassified to conform to the 1999
presentation.
(3) Comprehensive Income
The following table represents the calculation of comprehensive income
(loss) for the three months ended March 31, 1999 and 1998 (in millions):
Three Months Ended March 31,
----------------------------
1999 1998
------------ ------------
Net income (loss) $ 4.8 $ (6.6)
Other comprehensive income:
Net unrealized holding gains on securities 57.2 -
Foreign currency translation adjustments (1.4) -
------------ ------------
Total other comprehensive income 55.8 -
------------ ------------
Comprehensive income $ 60.6 $ (6.6)
============ ============
6
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QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1999 and 1998
(4) KPNQwest Joint Venture
In April 1999, Qwest and KPN Telecom B. V. ("KPN") completed the
formation of a joint venture to create a pan-European IP-based fiber optic
network, linked to Qwest's network in North America, for data, video and
voice services.
Qwest and KPN each owns 50 percent of the venture. The venture is
governed by a six-person supervisory board, to which Qwest and KPN each has
named three members. KPN contributed two partially completed bi-directional,
self-healing fiber optic rings (EuroRingsTM 1 and 2) and certain
communications services contracts. Qwest and KPN have contributed
transatlantic capacity that connect EuroRingsTM with Qwest's network in
North America, as well as certain other assets. In April 1999, Qwest
contributed Xlink Internet Service Gmbh ("Xlink") and the operating
subsidiaries of EUnet International Limited ("EUnet"). The net book value of
total assets contributed by Qwest totaled approximately $300.0 million.
Qwest will deconsolidate EUnet and Xlink, and Qwest's interest in the joint
venture will be accounted for under the equity method.
(5) Construction Services
Costs and billings on uncompleted contracts included in the accompanying
condensed consolidated balance sheets were as follows (in millions):
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
------------- ------------
<S> <C> <C>
Costs incurred on uncompleted contracts $ 975.4 $ 898.8
Estimated earnings 560.0 499.4
------------- ------------
1,535.4 1,398.2
Less: billings to date (1,350.7) (1,176.1)
------------- ------------
Costs and estimated earnings in excess of billings, net $ 184.7 $ 222.1
============= ============
</TABLE>
The Company has entered into various agreements to provide indefeasible
rights of use of multiple fibers along the network. Such agreements include
contracts with three major customers for an aggregate purchase price of
approximately $1.0 billion. Construction Services revenue relating to the
contracts with these major customers was approximately $43.0 million and
$106.5 million for the three months ended March 31, 1999 and 1998,
respectively. Progress billings are made upon customers' acceptance of
performance milestones.
Although these construction agreements provide for certain penalties if
the Company does not complete construction within the time frames specified
within the agreements, management does not anticipate that the Company will
incur any substantial penalties under these provisions.
7
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QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1999 and 1998
(6) Debt and Capital Lease Obligations
Debt and capital lease obligations consisted of the following (in
millions):
March 31, December 31,
1999 1998
------------- --------------
Fixed rate debt at interest ranging
from 7.25% to 10 7/8% $ 2,293.5 $ 2,279.5
Capital lease and other obligations 28.6 30.4
------------- --------------
Total debt and capital lease obligations 2,322.1 $ 2,309.9
Less current portion (2.2) (2.8)
------------- --------------
Debt and capital lease obligations $ 2,319.9 $ 2,307.1
============= ==============
The current portion of long-term debt and capital lease obligations is
included in accrued expenses and other in the accompanying condensed
consolidated balance sheets.
In March 1999, the Company entered into a $1.0 billion credit agreement
with a syndicate of banks. This credit agreement provides for two five-year
revolving credit facilities for a total of $500.0 million and one 364-day
revolving credit facility in the amount of $500.0 million. The credit
facilities bear interest at either the bank base rate of interest or LIBOR
plus an applicable margin.
(7) Income Taxes
Total income tax expense (benefit) differed from the amounts computed by
applying the federal statutory income tax rate (35%) to earnings (loss)
before income tax expense (benefit) as a result of the following items:
Three Months Ended March 31,
-----------------------------
1999 1998
------------- --------------
Statutory income tax expense (benefit) 35.0% (35.0%)
Goodwill amortization 28.7% 3.5%
Foreign losses 12.5% --
Other, net 4.3% (1.2%)
------------- --------------
Total income tax expense (benefit) 80.5% (32.7%)
============= ==============
(8) Commitments and Contingencies
(a) Network Construction Project and Capital Requirements
In 1996, the Company commenced construction of its network. The Company
estimates the total cost to construct and activate the network and to
complete construction of the dark fiber sold to customers will be
approximately $2.3 billion. The Company projected its total remaining cost
as of March 31, 1999 for completing the construction of the network to be
approximately $0.3 billion.
(b) DSL Services Commitments
In January 1999, Qwest made a $15.0 million equity investment in high-
speed, digital subscriber line ("DSL") local networks through an agreement
with Covad Communications Group, Inc. ("Covad"), a packet-based Competitive
Local Exchange Carrier ("CLEC"). The Company has committed to purchase DSL
services for
8
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QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1999 and 1998
approximately $20.0 million over a five-year term commencing on the date
that Covad's DSL services are commercially available in all 22 metropolitan
areas, which is expected to occur by the end of 1999.
In April 1999, Qwest made an additional equity investment, totaling
$15.0 million in cash, in DSL local networks through an agreement with
Rhythms NetConnections Inc. ("Rhythms"), a packet-based CLEC that provides
high-speed networking solutions for remote access to private networks and
the Internet. The Company has committed to place a minimum number of orders
for DSL service over a seven-year term commencing on the date that Rhythms
is operational in 29 metropolitan areas, which is expected to be in the
first quarter of 2000. In the event that the Company fails to meet the order
target, the Company is committed to pay Rhythms for the difference between
the order target and the number of actual orders placed.
(c) Network and Communications Capacity Exchanges
From time to time, the Company enters into agreements to acquire long-
term telecommunications capacity rights from unrelated third parties in
exchange for long-term telecommunications capacity rights along segments of
the network under construction. The exchange agreements provide for
liquidated damages to be levied against the Company in the event the Company
fails to deliver the telecommunications capacity, in accordance with the
agreed-upon timetables.
(d) Vendor Agreements
The Company has agreements with certain telecommunications inter-
exchange carriers and third party vendors that require the Company to
maintain minimum monthly and/or annual billings based on usage. The Company
has historically met all minimum billing requirements and believes the
minimum usage commitments will continue to be met.
(e) Japan-U.S. Cable Consortium Commitment
The Company is participating in a consortium of communications
companies that is building a submarine cable system connecting the United
States to Japan. In connection with this transaction, the Company is
committed to purchase approximately $56.0 million of fiber optic cable and
other network assets of the 13,125-route-mile, four-fiber pair cable system
to the Pacific Rim. The total remaining commitment through January 2001 was
approximately $49.0 million as of March 31, 1999.
(f) Legal Matters
The Company has been named as a defendant in various litigation
matters. Management intends to vigorously defend these outstanding claims.
The Company believes it has adequate accrued loss contingencies and that,
although the ultimate outcome of these claims cannot be ascertained at this
time, current pending or threatened litigation matters are not expected to
have a material adverse impact on the Company's results of operations or
financial position.
(9) Weighted Average Shares Outstanding
For the three months ended March 31, 1999, the weighted average number
of shares used for computing basic earnings per share was 349.1 million, and
the weighted average number of shares used for computing diluted earnings
per share was 368.6 million (including 19.5 million incremental common
shares attributable to dilutive securities related to warrants, options and
growth shares). The weighted average number of shares used for computing
basic and diluted loss per share for the three months ended March 31, 1998
was 206.7 million. Because the Company had a net loss in 1998, the effect
on loss per share of all options and warrants was anti-dilutive.
9
<PAGE>
QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1999 and 1998
(10) Business Segment Information
The Company's two business segments are Communications Services and
Construction Services, each having a separate management team and
infrastructure, offering different products and services, and utilizing
different marketing strategies to target different types of customers.
Communications Services provides multimedia communications services to
retail and wholesale customers. Construction Services constructs and
installs fiber optic systems for other communications entities, as well as
for the Company's own use.
The Company evaluates the performance of its business segments based on
their respective earnings (loss) from operations, before interest and other
(income) expense and income taxes. The following table presents summarized
financial information related to the business segments for the three months
ended March 31, 1999 and 1998 (in millions):
Three Months Ended March 31,
-----------------------------
1999 1998
------------- --------------
Revenue:
Communication services $ 737.2 $ 42.6
Construction services 141.2 134.5
------------- --------------
Total revenue $ 878.4 $ 177.1
============= ==============
Earnings (loss) from operations:
Communications services $ 26.9 $ (26.1)
Construction services 45.1 27.0
Depreciation and amortization -
corporate (12.5) (4.4)
------------- --------------
Total earnings (loss) from operations 59.5 (3.5)
Unallocated other (income) expense:
Interest expense, net 32.0 14.4
Other (income) expense, net 2.9 (8.1)
------------- --------------
Earnings (loss) before income taxes $ 24.6 $ (9.8)
============= ==============
During the three months ended March 31, 1999, no single customer
accounted for 10% or more of the Company's total revenue. During the three
months ended March 31, 1998, Frontier and GTE accounted for 27% and 27%,
respectively, of the Company's total revenue and are included in the
Construction Services segment.
(11) Subsequent Events
In May 1999, Qwest's stockholders approved an increase in the number of
authorized common shares from 600 million to 2 billion.
In April 1999, BellSouth Corporation (together with its subsidiaries,
"BellSouth") and Qwest announced a strategic relationship whereby BellSouth
will invest approximately $3.5 billion for an approximately 10 percent
equity stake in Qwest. Qwest will issue approximately 20.35 million shares
to BellSouth in exchange for approximately $1.9 billion in cash. Qwest's
principal stockholder, Anschutz Company, will sell approximately 16.65
million shares to BellSouth for approximately $1.6 billion. The investment
is conditioned on the termination of the Hart-Scott-Rodino Antitrust Act
waiting period. At the same time, a BellSouth affiliate and Qwest entered
into a commercial arrangement for provisioning of a full range of
integrated digital data, image and voice communications services for
customers. These services will include Qwest's portfolio of data
networking, Internet and voice services and BellSouth's local networking
services. Once BellSouth is allowed to enter the long distance market, the
companies will jointly develop and deliver a comprehensive set of end-to-
end, high-speed data, image and voice communications services to business
customers, with an emphasis on broadband and Internet-based data services.
10
<PAGE>
QWEST COMMUNICATIONS INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Three Months Ended March 31, 1999 and 1998
In April 1999, Qwest announced that its board of directors approved a
two-for-one stock split in the form of a stock dividend for stockholders of
record as of the close of business on May 3, 1999. The new shares will be
distributed on May 24, 1999. The effect of this stock split is not
reflected in the accompanying condensed consolidated financial statements.
11
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Information Regarding Forward-Looking Statements
This report contains or incorporates by reference "forward-looking
statements" as that term is used in federal securities laws about Qwest's
financial condition, results of operations and business. These statements
include, among others:
. statements concerning the benefits that Qwest expects will result from
its business activities and certain transactions Qwest has completed,
such as increased revenues, decreased expenses and avoided expenses
and expenditures,
. Qwest's plans to complete its communications network, and
. other statements of Qwest's expectations, beliefs, future plans and
strategies, anticipated developments and other matters that are not
historical facts.
These statements may be made expressly in this document, or may be
incorporated by reference to other documents Qwest has filed with the Securities
and Exchange Commission ("SEC"). You can find many of these statements by
looking for words such as "believes," "expects," "anticipates," "estimates," or
similar expressions used in this report or incorporated by reference in this
report.
These forward-looking statements are subject to numerous assumptions, risks
and uncertainties that may cause Qwest's actual results to be materially
different from any future results expressed or implied by Qwest in those
statements. The risks and uncertainties include those risks, uncertainties and
risk factors identified, among other places, under "Risk Factors" in Qwest's
registration statement on Form S-4, SEC file number 333-72929, beginning on page
12.
The most important factors that could prevent Qwest from achieving its
stated goals include, but are not limited to, the following:
. Qwest's failure to construct its communications network on schedule and
on budget;
. operating and financial risks related to managing rapid growth,
integrating acquired businesses and sustaining operating cash flow to
meet Qwest's debt service requirements, make capital expenditures and
fund operations;
. potential fluctuation in quarterly results;
. volatility of stock price;
. intense competition in the communications services market;
. dependence on new product development;
. Qwest's ability to achieve year 2000 compliance;
. rapid and significant changes in technology and markets;
. adverse changes in the regulatory or legislative environment affecting
Qwest's business; and
. failure to maintain necessary rights of way.
Because the statements are subject to risks and uncertainties, actual
results may differ materially from those expressed or implied by the forward-
looking statements. Qwest cautions you not to place undue reliance on the
statements, which speak only as of the date of this report or, in the case of
documents incorporated by reference, the date of the document.
The cautionary statements contained or referred to in this section should be
considered in connection with any subsequent written or oral forward-looking
statements that Qwest or persons acting on its behalf may issue. Qwest
undertakes no obligation to review or confirm analysts' expectations or
estimates or to release publicly any revisions to any forward-looking statements
to reflect events or circumstances after the date of this report or to reflect
the occurrence of unanticipated events.
12
<PAGE>
Overview
Qwest Communications International Inc. ("Qwest" or the "Company") is a
leading Internet communications company engaged in two core businesses:
Communications Services and Construction Services.
Communications Services includes Internet and Multimedia Services, Business
Services, Consumer Services and Wholesale Services. Internet and Multimedia
Services provides Internet Protocol ("IP") - enabled services such as Internet
access, web hosting, co-location and remote access. Internet and Multimedia
Services are being developed according to market demand in partnership with
leading information technology companies, including the following:
. Microsoft Corporation for business applications and service;
. Netscape Communications Corporation for one-stop access for an
array of communications services accessed over the Internet; and
. Covad Communications Group, Inc. ("Covad") and Rhythms NetConnections
Inc. ("Rhythms") for digital subscriber line ("DSL") technology for high-
speed local network connectivity.
Business Services and Consumer Services provide a full range of voice, data,
video and related services to business customers, governmental agencies and
consumers. Wholesale Services provides high-volume voice and conventional
private line services to other communications providers, as well as to Internet
service providers ("ISPs"), and other data service companies.
Construction Services constructs and installs fiber optic systems for other
communications providers, as well as for the Company's own use. The Company
began operations in 1988 constructing fiber optic conduit systems primarily for
major long distance carriers in exchange for cash and capacity rights. The
Company entered into major construction contracts for the sale of dark fiber to
Frontier, MCI WorldCom and GTE whereby the Company has agreed to install and
provide dark fiber to each along portions of the Company's network. In addition
to these contracts, the Company has signed agreements with other communications
providers and government agencies for the sale of dark fiber along the Company's
network. Revenue from Construction Services generally is recognized under the
percentage of completion method as performance milestones relating to the
contract are satisfactorily completed.
Central to Qwest's strategy is the Qwest Macro Capacity(SM) Fiber Network, a
high-capacity IP-based fiber optic network designed to allow customers to
seamlessly exchange multimedia content -- images, data and voice. The
technologically advanced network will reach approximately 18,800 route miles,
with the initial 18,500-route-mile network scheduled for completion in mid-1999,
and a 300-route-mile segment scheduled for completion by the end of 1999. The
network employs a self-healing SONET ring architecture. It is equipped with
advanced fiber and state-of-the-art transmission electronics. Qwest's network
architecture supports IP, Asynchronous Transfer Mode ("ATM") and frame relay
services, as well as circuit switched services.
In 1998, Qwest became the first network service provider to complete a
transcontinental IP-based fiber optic network when it activated its network from
Los Angeles to San Francisco to New York. The Company also activated the
nation's first OC-48 native IP network along certain routes of the Company's
network. Along this OC-48 network, the Company will offer high-speed dedicated
Internet access, web hosting, IP-based virtual private network services and
expanded availability of voice over IP long distance services. Additionally,
the Company's European joint venture, KPN Qwest, will provide a pan-European IP-
based fiber optic network. The services offered will allow customers in Europe
to broadcast video, data and voice globally. (See further discussion of the KPN
joint venture below.)
The Company is also expanding its network to carry international data and
voice traffic to Mexico, Europe and the Far East. The 1,400-route mile Mexico
network is substantially complete. The network expansion into Europe includes
capacity on undersea submarine systems. The transatlantic capacity includes up
to four STM-1s (the European equivalent to SONET OC-3) from New York City to
London and other European destinations. The Company is also participating in a
consortium of communications companies that is building a submarine cable system
connecting the United States to Japan. Scheduled for completion by the second
quarter of 2000, the 13,125-mile four-fiber pair cable will ultimately be
capable of transmitting information at the rate of 640 gigabits per second.
Relationship With BellSouth. In April 1999, BellSouth Corporation (together
with its subsidiaries, "BellSouth") and Qwest announced a strategic relationship
whereby BellSouth will invest approximately $3.5 billion for an approximately 10
percent equity stake in Qwest. Qwest will issue approximately 20.35 million
shares to BellSouth in exchange for approximately $1.9 billion in cash. Qwest's
principal stockholder, Anschutz Company, will sell approximately 16.65 million
of existing shares to BellSouth for approximately $1.6 billion. The investment
is conditioned on the termination of the Hart-Scott-Rodino Antitrust Act waiting
period. At the same time, a BellSouth affiliate and Qwest entered into a
13
<PAGE>
commercial arrangement for provisioning of a full range of integrated digital
data, image and voice communications services for customers. These services
will include Qwest's portfolio of data networking, Internet and voice services
and BellSouth's local networking services. Once BellSouth is allowed to enter
the long distance market, the companies will jointly develop and deliver a
comprehensive set of end-to-end, high-speed data, image and voice communications
services to business customers, with an emphasis on broadband and Internet-based
data services.
Investment in Covad. In January 1999, Qwest made its first equity
investment, totaling $15.0 million in cash, in high-speed, DSL local networks
through an agreement with Covad, a packet-based Competitive Local Exchange
Carrier ("CLEC"). Under this agreement, the Company expects to have access to 22
metropolitan areas by the end of 1999, while enhancing its ability to provide
its customers with high-speed DSL connectivity to its network. The Company has
committed to purchase DSL services for approximately $20.0 million over a five-
year term commencing on the date that Covad's DSL services are commercially
available in all 22 metropolitan areas.
Investment in Rhythms. In April 1999, Qwest made an additional equity
investment, totaling $15.0 million in cash, in DSL local networks through an
agreement with Rhythms, a packet-based CLEC that provides high-speed networking
solutions for remote access to private networks and the Internet. Under this
agreement, the Company expects to have access to 29 metropolitan areas (10 of
which are in addition to the areas covered by the agreement with Covad) by the
first quarter of 2000, while further enhancing its ability to provide its
customers with high-speed DSL connectivity to its network. The Company has
committed to place a minimum number of orders for DSL service over a seven-year
term commencing on the date that Rhythms is operational in 29 metropolitan
areas. In the event that the Company fails to meet the order target, the Company
is committed to pay Rhythms for the difference between the order target and the
number of actual orders placed.
KPNQwest Joint Venture. In April 1999, the Company and KPN Telecom B.V.
("KPN") formed a joint venture to create a pan-European IP-based fiber optic
network, linked to the Company's network in North America, for data, video and
voice services.
The venture initially will offer managed broadband services, IP transit,
Internet connectivity and value-added IP services, including consulting,
hosting, and the broadcasting of live events over the Internet. The venture also
plans to selectively sell dark fiber along its network. Customers of the
venture will include Internet service and content providers, multinational firms
in Europe and North America, as well as telecommunications carriers, operators
and others who want to purchase wholesale or retail network capacity, fiber or
services.
Qwest and KPN each own 50 percent of the venture. The venture is governed by
a six-person supervisory board, to which Qwest and KPN have each named three
members. KPN contributed two partially completed bi-directional, self-healing
fiber optic rings (EuroRingsTM 1 and 2) and certain communications services
contracts. Qwest and KPN have contributed transatlantic capacity that connect
EuroRingsTM with Qwest's network in North America, as well as certain other
assets. In April 1999, Qwest contributed Xlink Internet Service Gmbh ("Xlink")
and the operating subsidiaries of EUnet International Limited ("EUnet"). The
net book value of total assets contributed by Qwest totaled approximately $300.0
million. Qwest will deconsolidate EUnet and Xlink, and Qwest's interest in the
joint venture will be accounted for under the equity method.
Results of Operations
Three Months Ended March 31, 1999 Compared to Three Months Ended March 31, 1998
The Company reported net earnings of $4.8 million in the first quarter of
1999, compared to a net loss of $(6.6) million in the same quarter of the prior
year. The Company's results of operations include the acquisitions of the
following: Phoenix Network, Inc. from March 1998; EUnet International Limited
from April 1998; and LCI International, Inc. from June 1998. After giving pro
forma effect to these acquisitions and the acquisition of Icon CMT Corp.
("Icon") as if such acquisitions had occurred on January 1, 1998, and excluding
the effects of merger related costs and non-recurring charges, the Company's
reported net loss in the first quarter of 1998 would have been $(20.5) million,
compared to net earnings of $4.8 million in the first quarter of 1999.
14
<PAGE>
Revenue. Components of revenue for the first quarter of 1999 and 1998 were
as follows (in millions):
<TABLE>
<CAPTION>
Three Months Ended March 31,
-----------------------------
1999 1998 Increase
------------- -------------- --------------
<S> <C> <C> <C>
Communications services $ 737.2 $ 42.6 $ 694.6
Construction services 141.2 134.5 6.7
------------- -------------- --------------
Total revenue $ 878.4 $ 177.1 $ 701.3
============= ============== ==============
</TABLE>
During the first quarter of 1999, as compared to the same quarter of the
prior year, Communications Services revenue increased due to the addition of
revenue from the acquisitions discussed above, and due to growth in all aspects
of Communications Services. Construction Services revenue increased during the
first quarter of 1999, as compared to the same quarter of the prior year,
primarily as a result of additional dark fiber sales to other carriers and the
further completion of construction of the Company's nationwide network. As the
completion of the Company's network occurs during the remainder of 1999, the
Company expects that revenue from Construction Services will be less significant
to the Company's operations.
Operating Expenses. Components of operating expenses for the first quarter
of 1999 and 1998 were as follows (in millions):
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------- Increase
1999 1998 (Decrease)
------------- -------------- --------------
<S> <C> <C> <C>
Access and network operations $ 432.9 $ 30.8 $ 402.1
Construction services 76.8 97.4 (20.6)
Selling, general and administrative 213.3 44.4 $ 168.9
Depreciation and amortization 95.9 8.0 87.9
------------- -------------- --------------
Total operating expenses $ 818.9 $ 180.6 $ 638.3
============= ============== ==============
</TABLE>
Expenses for access and network operations primarily consist of the cost of
operating the Company's network, Local Exchange Carrier ("LEC") access charges
and the cost of leased capacity. The increase in access and network operations
for the first quarter of 1999 over the same quarter of the prior year was
primarily attributable to growth in revenue from acquisitions, as well as
internally generated growth in Communications Services revenue. Expressed as a
percentage of communications services revenue, access and network operations
expenses decreased from 72% in the first quarter of 1998 to 59% in the first
quarter of 1999. As the network is completed and activated, the Company will be
able to serve more customer needs over its own network, thereby reducing such
costs as a percentage of revenue.
Expenses for Construction Services consist primarily of costs of sale on
network construction contracts, including conduit, fiber, cable, construction
crews and rights of way. Costs attributable to the construction of the network
for the Company's own use are capitalized. Expenses for construction services
expressed as a percentage of construction revenue decreased from 72% for the
first quarter of 1998 to 54% for the first quarter of 1999 reflecting the impact
of higher margin network construction contracts.
Selling, general and administrative ("SG&A") expense includes the cost of
salaries, benefits, occupancy costs, commissions, sales and marketing expenses
and administrative expenses. The increase in SG&A in the first quarter of 1999
as compared to the same quarter of the prior year, was due primarily to the
following: additional expenses related to acquired entities; increased sales
and marketing efforts; additional bad debt expense related to the increase in
Communications Services revenues; increased payroll-related costs from the
recruiting and hiring of additional sales and administrative personnel;
increased commissions expense related to the growth in Communications Services
revenue; and additional building rent expense related to increased space
obtained in response to the Company's infrastructure growth. During the first
quarter of 1999, as compared to the same quarter of the prior year, the number
of employees increased, due to acquisitions and the expansion of the sales and
customer support infrastructure, from approximately 2,000 employees at March 31,
1998 to approximately 9,200 employees at March 31, 1999. Expressed as a
percentage of total revenue, SG&A decreased from 25% in the first quarter of
1998 to 24% in the first quarter of 1999. SG&A is expected to increase as the
Company continues to intensify brand advertising, as services are expanded and
as segments of the Company's network become operational.
15
<PAGE>
The Company's depreciation and amortization expense increased due primarily
to activating segments of the Company's network, purchases of assets to
accommodate the Company's growth and depreciation and amortization of assets and
goodwill related to the Company's acquisitions. The Company expects that
depreciation expense will continue to increase in subsequent periods as the
Company continues to activate additional segments of its network.
Through the use of third-party appraisal consultants, the Company assessed
and allocated values to in-process R&D projects related to the acquisition of
LCI in June 1998. The values assigned to these assets were determined by
identifying significant research projects for which technological feasibility
had not been established. These assets consisted of a significant number of R&D
projects grouped into three categories: (1) network systems automation tools;
(2) advanced data services, including frame relay and Internet Protocol
technologies; and (3) new operational systems and tools. Taken together, these
projects, if successful, will enable the Company to provide advanced voice and
data services as well as sophisticated network management and administration
functions. The Company believes development efforts through March 31, 1999 have
proceeded according to expectations.
Remaining R&D efforts for these projects include various phases of
technology design, development and testing. Anticipated completion dates for the
remaining projects in progress will occur in phases through 1999, at which point
the Company expects to begin generating the economic benefits from the
technologies. Costs incurred in connection with these R&D efforts are expensed
as incurred.
The Company expects to continue its support of these efforts and the Company
believes it has a reasonable chance of successfully completing the R&D programs.
However, risk is associated with the completion of the projects, and the Company
cannot assure that the projects will meet with either technological or
commercial success.
If none of these projects is successfully developed, the sales and
profitability of the Company may be adversely affected in future periods. The
failure of any particular individual in-process project would not materially
impact the Company's financial condition or results of operations. Operating
results are subject to uncertain market events and risks, which are beyond the
Company's control, such as trends in technology, government regulations, market
size and growth, and product introduction or other actions by competitors.
16
<PAGE>
Other Expense (Income). Components of other expense (income) for the first
quarter of 1999 and 1998, were as follows (in millions):
<TABLE>
<CAPTION>
Three Months Ended March 31,
-----------------------------
1999 1998 Increase
------------- -------------- --------------
<S> <C> <C> <C>
Interest expense, net $ 32.0 $ 14.4 $ 11.0
Other expense (income), net 2.9 (8.1) 17.6
------------- -------------- --------------
Total other expense (income) $ 34.9 $ 6.3 $ 28.6
============= ============== ==============
</TABLE>
The increase in interest expense, net during the first quarter of 1999, as
compared to the same quarter of the prior year, resulted from an increase in
long-term indebtedness, (see "Liquidity and Capital Resources" below), partially
offset by an increase in capitalized interest resulting from construction of the
Company's network. As the network is completed, interest expense will increase
as the amount of capitalized interest decreases. Other income, net, decreased
due primarily to decreases in interest income, which resulted from lower average
cash balances.
Income Taxes.The Company's effective tax rate for the first quarter of 1999
differed from the statutory income tax rate primarily as a result of the non-
deductibility of acquisition-related goodwill and foreign losses. The effective
tax rate for the first quarter of 1998 differed from the statutory rate
primarily as a result of the non-deductibility of acquisition-related goodwill.
Liquidity and Capital Resources
During the first quarter of 1999, cash used in operations was $79.6 million;
cash used in investing activities was $315.1 million, including $299.8 million
of capital expenditures; and cash provided by financing activities, consisting
primarily of employee stock transactions, was $50.9 million.
The Company estimates the total cost to construct and activate its network
and complete construction of dark fiber sold to third parties will be
approximately $2.3 billion, of which the Company had already expended
approximately $2.0 billion as of March 31, 1999.
The Company is participating in a consortium of communications companies
that is building a submarine cable system connecting the United States to Japan.
In connection with this transaction, the Company is committed to purchase
approximately $56.0 million of fiber optic cable and other network assets of the
13,125-route-mile, four-fiber pair cable system to the Pacific Rim. The total
remaining commitment through January 2001 was approximately $49.0 million as of
March 31, 1999.
The Company has obtained the funds available to complete these build-outs
from construction contracts for sales of dark fiber and from various debt and
equity financings. The Company believes that its available cash and cash
equivalent balances at March 31, 1999, cash flow from operations, cash flow from
the investment by BellSouth and its credit agreement (described below) will
satisfy its currently anticipated cash requirements for at least the next 12
months. The Company anticipates capital expenditures during the remainder of
1999 to support its growth in Communications Services and to complete
construction and activate additional capacity along the Company's network to be
approximately $1.1 billion to $1.2 billion.
In April 1999, the Company entered into a $1.0 billion credit agreement with
a syndicate of banks. This credit agreement provides for two five-year
revolving credit facilities for a total of $500.0 million and one 364-day
revolving credit facility in the amount of $500.0 million. The credit
facilities bear interest at either the bank base rate of interest or LIBOR plus
an applicable margin.
Year 2000
Many existing computer systems, including hardware and software, use only
the last two digits to identify a year. Consequently, as the year 2000
approaches, such systems will not recognize the difference in a year that begins
with "20" rather than "19". As a result of the date change in the year 2000, if
any of the Company's computer systems use only two
17
<PAGE>
digits to define the year, these defective systems may cause disruptions in its
network operations through which the Company provides communications services to
its customers and in its internal operations. Additionally, the Company is
dependent upon outside sources to provide communications services to its
customers and to bill its customers for such services. The greatest risk to the
Company's ability to provide communications services is the failure of third-
party service providers to be year 2000 compliant, especially those third-party
service providers that provide local access and certain of the billing systems
upon which the provision of long distance telecommunications service relies.
The Company has established a year 2000 compliance group. The objective of
the year 2000 compliance group is to minimize disruptions as a result of the
date change in the year 2000. The compliance group has developed a five-step
plan to identify and repair year 2000 affected systems: (i) identify potentially
date-sensitive systems, including third-party products; (ii) assess such systems
for year 2000 compliance; (iii) modify, upgrade or replace non-compliant
systems; (iv) test the corrected systems; and (v) deploy the corrected systems.
The year 2000 compliance group has focused mainly on the Company's domestic
operations and, to a lesser extent, on its international operations.
In addition to reviewing its own systems, the year 2000 compliance group is
submitting requests to third-party service providers to obtain information as to
their compliance efforts.
Inventory, assessment and remediation of mission critical software
applications is substantially complete. Testing and deployment of corrected
software systems is scheduled for completion by June 30, 1999.
Inventory and assessment of mission critical hardware systems, including
network computing and network systems engineering, is substantially complete.
Testing and deployment of upgrades necessary to complete remediation of mission
critical systems is expected to be complete by May 31, 1999. Inventory and
assessment of corporate facilities is scheduled for completion by May 31, 1999,
with necessary upgrades and contingency plans in place by June 30, 1999.
The Company's overall efforts to integrate the operations of recently
acquired businesses and various other factors, including the compliance efforts
of third parties, over which the Company has no control, may affect these target
dates.
The Company will develop contingency plans as needed. The contingency plans
are expected to be completed by June 1999 and tested through the third quarter
of 1999.
During the first quarter of 1999, the Company incurred approximately $3.5
million for year 2000 compliance costs, included in SG&A expense. The Company
expects to incur approximately $7.0 million to $12.0 million in additional SG&A
expense during the remainder of 1999 to implement its year 2000 plan. The
Company currently estimates capital expenditures for new systems to replace non-
year 2000 compliant systems will total approximately $20.0 million (having
incurred approximately $4.5 million through March 31, 1999).
Euro Conversion
On January 1, 1999, 11 of the 15 member countries of the European Union (the
"Participating Countries") established fixed conversion rates between their
existing sovereign currencies and established the euro as their common legal
currency. Revenues and operating income of the Company's operations in
Participating Countries are less than 5% of the Company's consolidated results.
The Company intends to address operational and information systems issues
related to the euro conversion. The Company does not expect the euro conversion
to have a material adverse impact on the Company's operations or financial
condition.
Regulatory Matters--Recent Developments
Access Charge Reform. Qwest's costs of providing long distance services
could be affected by changes in the "access charges" imposed by local exchange
carriers on long distance carriers to originate and terminate calls over local
networks. Changes in the interstate access charge structure could also affect
the costs of providing long distance "phone-to-phone" voice services using IP
technology. Traditionally, providers of long distance voice services over the
Internet and companies that use IP technology to provide long distance services
have been exempt from access charges.
18
<PAGE>
One major local exchange carrier recently demanded, however, that carriers
providing long distance voice services using IP technology must pay access
charges. In late 1998, US West asked the FCC to consider using its accelerated
complaint procedures to determine whether Qwest's long distance phone-to-phone
voice services using IP technology is subject to the payment of access charges.
Qwest vigorously objected to the FCC's consideration of this issue in an
accelerated fashion. The FCC subsequently decided not to entertain US West's
complaint using the FCC's accelerated complaint procedures. US West was given
the option however, of re-filing its complaint using the FCC's normal complaint
procedures. In April 1999, US West filed a Petition for Expedited Declaratory
Ruling seeking resolution of whether a long distance carrier is required to pay
access charges when that carrier holds itself out as a provider of voice
telephony; does not require the customer to use customer premises equipment
different from the customer premises equipment necessary to place an ordinary
touch-tone call; allows the customer to call telephone numbers assigned in
accordance with the North American Numbering Plan; and transmits customer
information, without net change in form or content, using a packet switching
protocol solely within the carrier's own network. As of mid-April 1999, the FCC
has not sought comment on US West's Petition, and has not conclusively
determined whether local exchange carriers may impose access charges on carriers
providing long distance phone-to-phone voice services using IP technology. It is
not clear whether or when a decision will be made.
In the past, the FCC has suggested that access charges might appropriately
be imposed on long distance phone-to-phone voice services under certain
circumstances. If the FCC allows local exchange carriers to levy access charges
on carriers providing long distance phone-to-phone voice services using Internet
protocol technology, Qwest's costs to provide such services could increase.
Supreme Court Decision on FCC Rules Implementing the Telecommunications Act
of 1996. On January 25, 1999, the U.S. Supreme Court issued a decision that
upheld many of the rules the FCC had created to implement the portions of the
1996 Act that are designed to bring competition to local exchange markets. In
the decision, the Supreme Court upheld the FCC's authority to implement the
Telecommunications Act of 1996 through rules binding on the states. The Supreme
Court also upheld the FCC's regulations regarding state review of
interconnection agreements, the granting of certain exemptions to rural
incumbent local exchange carriers, and dialing parity. "Dialing parity" means
that consumers can use non-incumbent carriers by dialing as they normally do,
rather than having to dial extra access codes. The Supreme Court also upheld
the FCC's rulings:
. that competitors need not own facilities in order to purchase network
elements from incumbent local exchange carriers;
. that incumbent local exchange carriers may not separate combinations of
network elements before providing them to nondominant carriers unless
requested to do so by a nondominant carrier;
. that network elements include the features, functions, and capabilities
provided by means of network equipment; and
. that non-incumbent carriers may adopt particular provisions of another
carrier's interconnection agreement without adopting the entire
agreement.
The Supreme Court sent back to the FCC, however, the issue of what network
elements local exchange carriers must make available to non-incumbent carriers.
In April 1999, the FCC released proposed rules on this subject. The FCC is
expected to complete this proceeding later in 1999. In addition, a federal
court will now need to decide whether the method adopted by the FCC in 1996 for
establishing prices for network elements purchased from the incumbent local
exchange carriers and for interconnection with the incumbent local exchange
carriers' networks is permissible. Qwest is unable to predict what actions the
FCC or a federal court will take on these and other issues related to the
Supreme Court's decision.
The Supreme Court's decision is likely to have an impact on other matters as
well, including interconnection agreements between non-incumbent carriers and
incumbent local exchange carriers, the rules the states have adopted concerning
local exchange competition, and the original local exchange carriers'
applications for long distance authority. Qwest is unable to predict, however,
how the decision will impact those matters or how the decision will affect
competition.
Truth-in-billing. In April 1999, the FCC adopted guidelines governing the
format and content of telephone bills. These guidelines, which are intended to
become effective in the spring of 1999, will require carriers to (1) clearly
identify the service provider responsible for each charge on the bill; (2)
clarify when customers may withhold payment to dispute a charge without risking
the loss of their basic local service; (3) identify on the bill the carrier to
whom a customer should
19
<PAGE>
direct his or her complaint about a particular charge; and (4) adopt uniform
descriptions for line item charges related to federal regulatory action. The
adoption of these new rules will impact the way Qwest presents its bills to
customers.
1+ Dialing Parity. In many states, consumers wishing to use carriers other
than the incumbent local exchange carrier for long distance services within the
incumbent local exchange carrier's area have had to dial special access codes to
do so. The need to dial extra digits in these states has put Qwest and other
carriers at a competitive disadvantage compared with incumbent local exchange
carriers whose customers can make these calls simply by dialing "1" plus the
desired number. If a non-incumbent carrier's customer attempts to make one of
these calls by simply dialing "1" plus the desired number, the call will
automatically be routed to the incumbent local exchange carrier in those states
that have not required 1+ dialing parity. The Supreme Court's January 25, 1999
decision which is discussed above upholds the FCC's rule requiring that
incumbent local exchange carriers make it possible for consumers to make these
long distance calls on a 1+ basis, using Qwest or any other carrier the consumer
desires. Regulatory commissions in a number of states also have issued
decisions imposing similar requirements. Dialing parity is scheduled to be
implemented in all states by the late summer of 1999. Qwest expects to benefit
from the implementation of this 1+ calling capability.
20
<PAGE>
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The Company has $162.5 million of 10 7/8% Senior Notes, due 2007, $555.9
million of 9.47% Senior Discount Notes, due 2007, $450.5 million of 8.29% Senior
Discount Notes, due 2008, $750.0 million of 7.50% Senior Notes, due 2008, $350.0
million of 7.25% Notes Due 2007 and $300.0 million of 7.25% Senior Notes, due
2008.
The Company's long-term debt obligations are principally fixed interest rate
and non-trading in nature, and as a result, the Company is less sensitive to
market rate fluctuations. The Company currently does not use derivative
financial instruments to manage its interest rate risk and has no cash flow
exposure due to general interest rate changes for its fixed interest rate long-
term debt. The following table provides information about the Company's market
risk exposure associated with changing interest rates on its fixed rate debt and
capital lease and other obligations (dollars in millions):
<TABLE>
<CAPTION>
Expected Maturity
---------------------------------------------------------------------
1999 2000 2001 2002 2003 Thereafter Total
-------- -------- -------- -------- -------- -------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Long-term fixed rate debt $ - $ - $ - $ - $ - $ 2,568.9 $ 2,568.9
Capital lease and other obligations $ 1.0 $ 2.1 $ 2.2 $ 2.6 $ 3.2 $ 17.5 $ 28.6
Average interest rate 8.1% 8.2% 8.2% 8.2% 8.2% 8.2% 8.2%
</TABLE>
Collectively, the fixed rate debt, capital lease and other obligations, with
a carrying value of $2,322.1 million, had an estimated fair value of $2,394.5
million at March 31, 1999, based on current interest rates offered for debt of
similar terms and maturity.
The Company's European-country operations were not material to the Company's
consolidated financial position as of March 31, 1999, and results of operations
or cash flows for the three months ended March 31, 1999. In addition, foreign
currency transaction gains and losses were not material to the Company's results
of operations for the three months ended March 31, 1999, and the Company does
not expect to be subject to material foreign currency exchange rate risk from
the effects of exchange rate movements of foreign currencies on the costs or
cash flows the Company would receive from its share of the KPNQwest Joint
Venture. To date, the Company has not entered into any significant foreign
currency forward exchange contracts or other derivative financial instruments to
hedge the effects of adverse fluctuations in foreign currency exchange rates.
21
<PAGE>
Part II
Item 1. Legal Proceedings
On April 3, 1998, in an action captioned Lionel Phillips v. LCI
International Inc. and H. Brian Thompson, the plaintiffs filed a putative class
action complaint in the United States District Court for the Eastern District of
Virginia against LCI and H. Brian Thompson, the Chairman and Chief Executive
Officer of LCI. The plaintiffs brought the action purportedly on behalf of
stockholders of LCI who sold LCI Common Stock between February 17, 1998 and
March 9, 1998. The plaintiffs alleged, among other things, that the defendants
violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder
by making materially false and misleading statements that LCI was not for sale
at a time when negotiations between Qwest and LCI regarding a potential merger
were allegedly ongoing. The plaintiffs sought, among other things, to have the
Court declare the suit a proper class action and award damages, together with
costs and disbursements. On June 25, 1998, defendants moved to dismiss the
complaint on the grounds that it failed to state a claim against defendants. By
Order dated July 20, 1998, the Court granted defendants' motion to dismiss the
complaint but granted the plaintiffs leave to amend the complaint within fifteen
days. On August 4, 1998, the plaintiffs filed an amended complaint and Qwest
again moved to dismiss the lawsuit. On September 30, 1998, the Court granted
the defendant's motion to dismiss the complaint. On October 20, 1998, the
plaintiffs appealed the Court's decision and the appeal is still pending.
On September 15, 1998, in an action captioned Aaron Parnes v. Scott A.
Baxter, Wayne B. Weisman, Richard M. Brown, Scott Harmolin, Samuel A. Plum, Icon
CMT Corp. and Qwest Communications International Inc., the plaintiff filed a
putative class action complaint in the Court of Chancery of the State of
Delaware in and for New Castle County (the "Court") against Icon, its directors
and Qwest. In the suit, the plaintiff alleged that consummation of the Icon
merger will subject the Icon stockholders to the control of Mr. Anschutz, who
will continue to be the principal stockholder of Qwest after the consummation of
the merger. The plaintiff further alleged that the Icon merger constitutes a
change in control of Icon and imposes heightened fiduciary duties on the members
of the Icon board of directors to maximize stockholder value. The plaintiff
also alleged that the members of the Icon board of directors violated their
fiduciary duties by failing to auction Icon or to undertake an active "market
check" for other potential bidders. The plaintiff seeks, among other things, to
have the Court declare the suit a proper class action, enjoin the Icon merger
and require the members of the Icon board of directors to auction Icon and/or
conduct a "market check," and to award monetary damages, together with costs and
disbursements. The defendants consider the action to be without merit and
intend to vigorously defend the action. The defendants have filed answers
denying the allegations of the complaint.
Qwest also has been named as a defendant in various other litigation
matters. Management intends to vigorously defend these outstanding claims. Qwest
believes it has adequate accrued loss contingencies and that, although the
ultimate outcome of these claims cannot be ascertained at this time, current
pending or threatened litigation matters are not expected to have a material
adverse impact on Qwest's results of operations or financial position.
Item 2. Changes in Securities and Use of Proceeds
(d) Use of Proceeds
Qwest has used approximately $274.6 million of the $319.5 million net
proceeds from its initial public offering on Form S-1 as declared effective
on June 23, 1997 (File No. 333-25391) for construction of its fiber optic
communications network and to redeem a total of $87.5 million in principal
amount of its 10 7/8% Notes due 2007. The remaining net proceeds are
temporarily invested in certain short-term investment grade securities.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit Number Description
-------------- ------------------------------------------------------
3.1** Amended and Restated Certificate of Incorporation of
Qwest.
3.2***** Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Qwest (incorporated by
reference to the exhibit of the same number to Qwest's
Registration Statement on Form S-3
22
<PAGE>
(File No. 333-58617) filed July 7, 1998).
3.3 Certificate of Amendment to the Amended and Restated
Certificate of Incorporation, as amended.
3.4 Amended and Restated Bylaws (incorporated by reference
to Qwest's Annual Report on Form 10-K for the year
ended December 31, 1998).
4.1(a)*** Indenture dated as of October 15, 1997 with Bankers
Trust Company (including form of Qwest's 9.47% Senior
Discount Notes due 2007 and 9.47% Series B Senior
Discount Notes due 2007 as an exhibit thereto).
4.1(b)**** Indenture dated as of August 28, 1997 with Bankers
Trust Company (including form of Qwest's 10 7/8%
Series B Senior Notes due 2007 as an exhibit thereto).
4.1 (c)**** Indenture dated as of January 29, 1998 with Bankers
Trust Company (including form of Qwest's 8.29% Senior
Discount Notes due 2008 and 8.29% Series B Senior
Discount Notes due 2008 as an exhibit thereto).
4.1(d) Indenture dated as of November 4, 1998 with Bankers
Trust Company (including form of Qwest's 7.50% Senior
Discount Notes due 2008 and 7.50% Series B Senior
Discount Notes due 2008 as an exhibit thereto)
(incorporated by reference to Qwest's Registration
Statement on Form S-4 (File No. 333-71603) filed
February 2, 1999).
4.1(e) Indenture dated as of November 27, 1998 with Bankers
Trust Company (including form of Qwest's 7.25% Senior
Discount Notes due 2008 and 7.25% Series B Senior
Discount Notes due 2008 as an exhibit thereto)
(incorporated by reference to Qwest's Registration
Statement on Form S-4 (File No. 333-71603) filed
February 2, 1999).
4.2(b) Registration Agreement dated November 27, 1998 with
Salomon Brothers Inc relating to Qwest's 7.25% Senior
Discount Notes due 2008 (incorporated by reference to
Qwest's Registration Statement on Form S-4 (File No.
333-71603) filed February 2, 1999).
4.3 Indenture dated as of June 23, 1997 between LCI
International, Inc., and First Trust National
Association, as trustee, Providing for the Issuance of
Senior Debt Securities, including Resolutions of the
Pricing Committee of the Board of Directors
establishing the terms of the 7.25% Senior Notes due
June 15, 2007 (incorporated by reference to exhibit
4(c) in LCI's Current Report on Form 8-K dated June
23, 1997).
4.4 Credit Agreement, dated as of March 31, 1999, among
Qwest Communications International Inc., as Borrower,
NationsBank, N.A., as Administrative Agent, and the
Lenders party thereto.
10.1** Growth Share Plan, as amended, effective October 1,
1996.*
10.2** Equity Incentive Plan.*
10.3 Qwest Communications International Inc. Employee Stock
Purchase Plan (incorporated by reference to Qwest's
Preliminary Proxy Statement for the Annual Meeting of
Stockholders, filed February 26, 1999).*
10.4 Qwest Communications International Inc. Deferred
Compensation Plan (incorporated by reference to
Qwest's Annual Report on Form 10-K for the year ended
December 31, 1998).*
10.5**** Equity Compensation Plan for Non-Employee Directors.*
10.6 Qwest Communications International Inc. 401-K Plan
(incorporated by reference to Qwest's Annual Report on
Form 10-K for the year ended
23
<PAGE>
December 31, 1998).*
10.7** Employment Agreement dated December 21, 1996 with
Joseph P. Nacchio.*
10.8**** Growth Share Plan Agreement with Joseph P. Nacchio,
effective January 1, 1997, and Amendment thereto.*
10.9**** Non-Qualified Stock Option Agreement with Joseph P.
Nacchio, effective June 23, 1997.*
10.11** Promissory Note dated November 20, 1996 and Severance
Agreement dated December 1, 1996 with Robert S.
Woodruff.*
10.12**** Employment Agreement dated March 7, 1997 with Stephen
M. Jacobsen.*
10.13**** Employment Agreement dated September 19, 1997 with
Larry Seese.*
10.15**** Employment Agreement dated October 8, 1997 with Lewis
O. Wilks.*
10.16**+ IRU Agreement dated as of October 18, 1996 with
Frontier Communications International Inc.
10.17**+ IRU Agreement dated as of February 26, 1996 with
WorldCom Network Services, Inc.
10.18**+ IRU Agreement dated as of May 2, 1997 with GTE.
10.19 LCI International, Inc. 1992 Stock Option Plan
(incorporated by reference to LCI's Registration
Statement No. 33-60558).*
10.20 LiTel Communications, Inc. 1993 Stock Option Plan
(incorporated by reference to LCI's Registration
Statement No. 33-60558).*
10.21 LCI International, Inc. 1994/1995 Stock Option Plan
(incorporated by reference to LCI's Annual Report on
Form 10-K for the year ended December 31, 1993).*
10.22 LCI International, Inc. 1995/1996 Stock Option
(incorporated by reference to LCI's Proxy Statement
for the 1995 Annual Meeting of Shareowners).*
10.23 LCI International Management Services, Inc.
Supplemental Executive Retirement Plan (incorporated
by reference to LCI's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995).*
10.24 1997/1998 LCI International, Inc. Stock Option Plan
(incorporated by reference to LCI's Annual Report on
Form 10-K for the year ended December 31, 1996).*
10.25(a) 1995 Stock Option Plan of Icon CMT Corp. (incorporated
by reference to Icon CMT Corp.'s Registration
Statement on Form S-1/A, No. 333-38339).*
10.25(b) Amendment to Amended and Restated 1995 Stock Option
Plan of Icon CMT Corp. (incorporated by reference to
Qwest's Annual Report on Form 10-K for the year ended
December 31, 1998).*
10.26 U.S. Long Distance Corp. 1990 Employee Stock Option
Plan (incorporated by reference to Qwest's Annual
Report on Form 10-K for the year ended December 31,
1998).*
10.27+ Contractor Agreement dated January 18, 1993 by and
between LCI International Telecom Corp. and American
Communications Network, Inc. (incorporated by
reference to LCI's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1995).
10.28 Participation Agreement dated as of November 1996
among LCI International, Inc., as the Construction
Agent and as the Lessee, First Security Bank, National
Association, as the Owner Trustee under the Stuart
Park Trust the various banks and lending institutions
which are parties thereto from time to time as the
Holders, the various banks and lending institutions
which are parties thereto from time to time as the
Lenders and NationsBank of Texas, N.A., as the Agent
for the Lenders (incorporated by reference to LCI's
Annual Report on Form 10-K for the year ended December
31, 1996).
10.29 Agency Agreement between LCI International, Inc., as
the Construction Agent and First Security Bank,
National Association, as the Owner Trustee under the
Stuart Park Trust as the Lessor dated as of November
15, 1996
24
<PAGE>
(incorporated by reference to LCI's Annual Report on
Form 10-K for the year ended December 31, 1996).
10.30 Deed of Lease Agreement dated as of November 15, 1996
between First Security Bank, National Association as
the Owner Trustee under the Stuart Park Trust, as
Lessor and LCI International, Inc. as Lessee
(incorporated by reference to LCI's Annual Report on
Form 10-K for the year ended December 31, 1996).
10.31 Common Stock Purchase Agreement dated as of December
14, 1998 with Microsoft Corporation (incorporated by
reference to Qwest's Current Report on Form 8-K filed
December 16, 1998).
10.32 Registration Rights Agreement dated December 14, 1998
with Microsoft Corporation (incorporated by reference
to Qwest's Current Report on Form 8-K filed December
16, 1998).
10.33 Registration Rights Agreement dated as of April 18,
1999 with Anschutz Company and Anschutz Family
Investment Company LLC (incorporated by reference to
Qwest's Current Report on Form 8-K/A filed April 28,
1999).
10.34 Common Stock Purchase Agreement dated as of April 19,
1999 with BellSouth Enterprises, Inc. (incorporated
by reference to Qwest's Current Report on Form 8-K/A
filed April 28, 1999).
10.35 Registration Rights Agreement dated as of April 19,
1999 with BellSouth Enterprises, Inc. (incorporated
by reference to Qwest's Current Report on Form 8-K/A
filed April 28, 1999).
21.1 Subsidiaries of the Registrant
27 Financial Data Schedule
* Indicates executive compensation plans and arrangements.
** Incorporated by reference in Form S-1 as declared effective
on June 23, 1997 (File No. 333-25391).
*** Incorporated by reference to exhibit 4.1 in Form S-4 as
declared effective on January 5, 1998 (File No. 333-42847).
**** Incorporated by reference in Qwest's Form 10-K for the year
ended December 31, 1997.
***** Incorporated by reference to the exhibit of the same number
to Qwest's Registration Statement on Form S-3 (File No. 333-
58617) filed July 7, 1998.
+ Portions have been omitted pursuant to a request for
confidential treatment.
(b) Reports on Form 8-K:
During the quarter ended March 31, 1999, Qwest filed the following
Current Reports on Form 8-K:
(1) On January 14, 1999, Qwest filed a Current Report on Form 8-K
announcing the consummation of the merger with Icon CMT Corp. ("Icon"). As
of December 31, 1998, the effective date of the merger, each outstanding
share of common stock of Icon was converted into the right to receive
0.3200 shares of Qwest's common stock and cash in lieu of fractional
shares, in accordance with the terms of the merger agreement.
25
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Qwest Communications International Inc.
a Delaware corporation
By: /s/ Robert S. Woodruff
-------------------------------------
ROBERT S. WOODRUFF
Executive Vice President--Finance
And Chief Financial Officer
(Principal Financial and Accounting Officer)
May 12, 1999
26
<PAGE>
Exhibit 3.3
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
QWEST COMMUNICATIONS INTERNATIONAL INC.
The undersigned Executive Vice President, General Counsel and
Corporate Secretary of Qwest Communications International Inc., a Delaware
corporation (the "Corporation"), DOES HEREBY CERTIFY ON BEHALF OF THE
CORPORATION:
1. That the Board of Directors of the Corporation adopted at a
meeting duly called and held a resolution (i) setting forth a proposed amendment
of the Amended and Restated Certificate of Incorporation of the Corporation,
(ii) approving such amendment, (iii) declaring such amendment advisable and (iv)
recommending such amendment to the stockholders of the Corporation for approval.
The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board of Directors hereby approves the amendment of
paragraph (a) of Article FOURTH of the Amended and Restated
Certificate of Incorporation of the Corporation, which amendment
increases the number of authorized shares of capital stock of the
Corporation by increasing the authorized number of shares of common
stock, par value $.01 per share ("Common Stock"), of the Corporation
and that the Board of Directors hereby proposes and declares to the
stockholders of the Corporation the advisability of amending paragraph
(a) of Article FOURTH and directs that such amendment be submitted to
the stockholders of the Corporation for their consideration and
approval, such amendment to be made by deleting paragraph (a) of
Article FOURTH from the current Amended and Restated Certificate of
Incorporation of the Corporation, as amended, and amending and
restating paragraph (a) of Article FOURTH to be and to read in its
entirety as follows:
"FOURTH: (a) Authorized Shares. The total number of shares of stock
-----------------
that the Corporation shall have authority to issue is 2,025,000,000
shares, divided into the following classes: (i) 2,000,000,000 shares
of common stock, par value $.01 per share ("Common Stock"), and (ii)
25,000,000 shares of preferred stock, par value $.01 per share
("Preferred Stock")."
2. That the stockholders of the Corporation approved, adopted and
consented to such amendment in accordance with the provisions of Section 211 of
the General Corporation Law of the State of Delaware.
3. That such amendment was duly adopted in accordance with the
provisions of Sections 242 and 211 of the General Corporation Law of the State
of Delaware.
<PAGE>
The undersigned, being duly elected and currently acting Executive
Vice President, General Counsel and Corporate Secretary of Qwest Communications
International Inc., the Corporation to which reference is made in this
Certificate, does make this Certificate and affirms and acknowledges on behalf
of the Corporation, under penalties of perjury, that this Certificate is the act
and deed of the Corporation and that the facts stated herein are true.
Date: May 5, 1999 /S/ DRAKE S. TEMPEST
--------------------------------------
Drake S. Tempest
Executive Vice President, General Counsel
and Corporate Secretary
Qwest Communications International Inc.
<PAGE>
EXHIBIT 4.4
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
Among
QWEST COMMUNICATIONS INTERNATIONAL INC.
NATIONSBANK, N.A.
as Administrative Agent
NATIONSBANC MONTGOMERY SECURITIES LLC
as Lead Arranger and Sole Book Running Manager
FIRST UNION CAPITAL MARKETS CORP.
BNY CAPITAL MARKETS, INC.
SALOMON SMITH BARNEY INC.
as Co-Arrangers
FIRST UNION CAPITAL MARKETS CORP.
THE BANK OF NEW YORK
SALOMON SMITH BARNEY INC.
as Co-Syndication Agents
NATIONSBANK, N.A.
THE BANK OF NEW YORK
FIRST UNION NATIONAL BANK
CITIBANK, N.A.
as Arranging Agents
ABN AMRO Bank N.V.
Banque Nationale de Paris
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
"Rabobank Nederland", New York Branch
Dresdner Bank AG, New York and Caymen Island Branches
Export Development Corporation
Fleet National Bank
Norwest Bank Colorado, National Association
PNC Bank, National Association
Royal Bank of Canada
The Bank of Nova Scotia
The First National Bank of Chicago
Toronto Dominion (Texas), Inc.
U.S. Bank National Association
Westdeutsche Landesbank Girozentrale, New York Branch
as Managing Agents
and
LENDERS
Dated as of March 31, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I. DEFINITIONS
1.01. Definitions......................................................................... 1
1.02. Accounting and Other Terms.......................................................... 28
ARTICLE II. THE LOAN FACILITY
2.01. Loans............................................................................... 28
2.02. Making Advances..................................................................... 30
2.03. Evidence of Debt for Borrowed Money................................................. 33
2.04. Optional Prepayments................................................................ 33
2.05. Mandatory Prepayments............................................................... 34
2.06. Repayment........................................................................... 34
2.07. Interest............................................................................ 35
2.08. Default Interest.................................................................... 36
2.09. Continuation and Conversion Elections............................................... 36
2.10. Fees................................................................................ 38
2.11. Reduction of Commitments............................................................ 38
2.12. Funding Losses...................................................................... 40
2.13. Computations and Manner of Payments................................................. 40
2.14. Yield Protection; Changed Circumstances............................................. 42
2.15. Use of Proceeds..................................................................... 44
2.16. Extension Option and Conversion Option Relating to the Working Line Loan............ 45
2.17. Rights of Borrower in Respect of Consequential Losses............................... 46
2.18. Rights of Borrower in Respect of Failure of any Lender to Fund or Extend the
Option Date......................................................................... 47
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit....................................................... 47
3.02. Letters of Credit Fee............................................................... 48
3.03. Reimbursement Obligations........................................................... 48
3.04. Lenders' Obligations................................................................ 50
3.05. Administrative Agent's Obligations.................................................. 50
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to the Initial Advance and the Issuance of the
Initial Letter of Credit............................................................ 51
4.02. Conditions Precedent to All Advances and Letters of Credit.......................... 53
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties...................................................... 54
5.02. Survival of Representations and Warranties.......................................... 62
ARTICLE VI. GENERAL COVENANTS
6.01. Preservation of Existence and Similar Matters....................................... 62
6.02. Business; Compliance with Applicable Law............................................ 62
6.03. Maintenance of Properties........................................................... 62
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
6.04. Accounting Methods and Financial Records............................................ 63
6.05. Insurance........................................................................... 63
6.06. Payment of Taxes and Claims......................................................... 63
6.07. Visits and Inspections.............................................................. 63
6.08. Use of Proceeds..................................................................... 63
6.09. Indemnity........................................................................... 63
6.10. Environmental Law Compliance........................................................ 64
6.11. Restricted Subsidiary Designation................................................... 65
6.12. Year 2000 Compliance................................................................ 65
6.13. Fiber Capacity...................................................................... 65
6.14. UCC Filings......................................................................... 65
6.15. Sinking Funds and Defeasance........................................................ 65
ARTICLE VII. INFORMATION COVENANTS
7.01. Quarterly Financial Statements and Information...................................... 66
7.02. Annual Financial Statements and Information......................................... 66
7.03. Compliance Certificates............................................................. 66
7.04. Copies of Other Reports and Notices................................................. 67
7.05. Notice of Litigation, Default and Other Matters..................................... 68
7.06. ERISA Reporting Requirements........................................................ 68
ARTICLE VIII. NEGATIVE COVENANTS
8.01. Financial Covenants................................................................. 69
8.02. Debt for Borrowed Money............................................................. 70
8.03. Liens............................................................................... 72
8.04. Investments......................................................................... 72
8.05. Liquidation, Disposition and Merger................................................. 74
8.06. Guaranties; Contingent Liabilities.................................................. 76
8.07. Restricted Payments................................................................. 76
8.08. Affiliate Transactions.............................................................. 77
8.09. Compliance with ERISA............................................................... 77
8.10. Capital Stock....................................................................... 78
8.11. Sale and Leaseback.................................................................. 78
8.12. Sale or Discount of Receivables..................................................... 78
8.13. Limitation on Restrictive Agreements................................................ 78
8.14. Amendment of Material Agreements.................................................... 78
8.15. Name Changes........................................................................ 79
8.16. Unrestricted Subsidiaries........................................................... 79
8.17. Limitation on IRU Agreements........................................................ 79
8.18. Acquisitions, Creation of Subsidiaries.............................................. 79
ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default................................................................... 82
9.02. Remedies upon Default............................................................... 85
9.03. Cumulative Rights................................................................... 86
9.04. Waivers............................................................................. 86
9.05. Performance by Administrative Agent or any Lender................................... 86
9.06. Expenditures........................................................................ 86
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
9.07. Control............................................................................. 86
ARTICLE X. THE ADMINISTRATIVE AGENT
10.01. Authorization and Action............................................................ 86
10.02. Administrative Agent's Reliance, Etc................................................ 87
10.03. NationsBank, N.A. and Affiliates.................................................... 87
10.04. Lender Credit Decision.............................................................. 88
10.05. Indemnification by Lenders.......................................................... 88
10.06. Successor Administrative Agent...................................................... 88
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers.............................................................. 89
11.02. Notices............................................................................. 89
11.03. Parties in Interest................................................................. 91
11.04. Assignments and Participations...................................................... 92
11.05. Sharing of Payments................................................................. 93
11.06. Right of Set-off.................................................................... 93
11.07. Costs, Expenses, and Taxes.......................................................... 93
11.08. Rate Provision...................................................................... 94
11.09. Severability........................................................................ 95
11.10. Exceptions to Covenants............................................................. 95
11.11. Counterparts........................................................................ 95
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL................................................. 95
11.13. ENTIRE AGREEMENT.................................................................... 96
11.14. Release of Conditional Early Release Unlimited Guaranty............................. 96
11.15. Confidentiality..................................................................... 96
</TABLE>
iv
<PAGE>
Table of Schedules and Exhibits
Schedules
---------
Schedule 1.01 - Terms and Conditions of Subordinated Debt
Schedule 1.02 - Map of Nationwide Fiber Optic Communications Network
Schedule 5.01(a) - Jurisdictions of Incorporation, Ownership and Capital
Structure - the Borrower and its Restricted Subsidiaries
Schedule 5.01(f) - Non-Compliance with FCC or any applicable PUC
Schedule 5.01(h) - Existing Litigation of the Borrower and its Restricted
Subsidiaries
Schedule 5.01(p) - Environmental Disclosure
Schedule 5.01(q) - Description of Subsidiaries and Equity Investments
Schedule 8.02 - Existing Debt and Liabilities of the Borrower and the
Restricted Subsidiaries
Schedule 8.03 - Existing Liens of the Borrower and the Restricted
Subsidiaries
Schedule 8.04 - Existing Investments of the Borrower and the Restricted
Subsidiaries
Schedule 8.06 - Existing Guaranties of the Borrower and the Restricted
Subsidiaries
Schedule 8.08 - Permitted Affiliate Non-Market Transactions
Schedule 8.16 - Permitted Transactions among the Borrower and the
Restricted Subsidiaries and the Unrestricted
Subsidiaries
Exhibits
--------
Exhibit A - Form of Revolver A Note
Exhibit B - Form of Working Line Note
Exhibit C - Form of Revolver B Note
Exhibit D - Form of Swingline Note
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Borrowing Notice
Exhibit G - Form of Conversion/Continuation Notice
Exhibit H - Form of Assignment and Acceptance
Exhibit I - Form of Conditional Early Release Unlimited Guaranty
Exhibit J - Form of Notice of Change of Senior Unsecured Debt Rating
v
<PAGE>
$1,000,000,000
QWEST COMMUNICATIONS INTERNATIONAL INC.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of March 31, 1999, among QWEST
COMMUNICATIONS INTERNATIONAL INC., a Delaware corporation (the "Borrower"), the
Lenders (as defined below), NATIONSBANK, N.A., as a Lender and Administrative
Agent, NATIONSBANC MONTGOMERY SECURITIES LLC, as Lead Arranger and Sole Book
Running Manager, FIRST UNION CAPITAL MARKETS, BNY CAPITAL MARKETS, INC. AND
SALOMON SMITH BARNEY INC. as Co-Arrangers, FIRST UNION CAPITAL MARKETS, THE BANK
OF NEW YORK and SALOMON SMITH BARNEY INC., as Co-Syndication Agents and
NATIONSBANK, N.A., THE BANK OF NEW YORK, FIRST UNION NATIONAL BANK and CITIBANK,
N.A. as Arranging Agents, the Managing Agents and the Lenders.
BACKGROUND.
WHEREAS, the Borrower, the Administrative Agent and the Lenders hereby
enter into a Credit Agreement which provides for 1) one five year revolving
credit facility in the amount of $250,000,000 (which such loan facility shall
also include a letter of credit availability of not more than $80,000,000 and a
swingline facility of not more than $25,000,000), 2) one 364-day revolving
credit facility in the amount of $500,000,000, and 3) one five year revolving
credit facility in the amount of $250,000,000).
AGREEMENT.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
1.01. Definitions. As used in this Agreement, the following terms have
the respective meanings indicated below (such meanings to be applicable equally
to both the singular and plural forms of such terms):
"Administrative Agent" means NationsBank, N.A., in its capacity as
Administrative Agent hereunder, or any successor Administrative Agent appointed
pursuant to Section 10.06 hereof.
"Advance" means an advance made by a Lender to the Borrower pursuant to
Section 2.01 hereof, including Revolver A Advances, Working Line Advances,
Revolver B Advances, Swingline Advances and Refinancing Advances.
1
<PAGE>
"Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled By or is Under Common Control with
another Person.
"Agreement" means this Credit Agreement, as hereafter amended, modified,
increased, extended, restated or supplemented from time to time.
"Annualized Operating Cash Flow" means the product of (a) Operating Cash
Flow for the most recently completed two fiscal quarters, times (b) two.
"Applicable Law" means in respect of any Person, all provisions of Laws of
Tribunals applicable to such Person, and all orders and decrees of all courts
and arbitrators in proceedings or actions to which the Person in question is a
party.
"Applicable Commitment Fee Percentage" means the per annum commitment fees
set forth below for the Loans, as adjusted in each case according to the
circumstances set forth below:
<TABLE>
<CAPTION>
------------------------------------------------------
Applicable
Commitment Fee
Percentages
------------------------------------------------------
Senior Revolver Working
Unsecured Debt A Loan Line Loan
Ratings of the Borrower and
Revolver
B Loan
------------------------------------------------------
<S> <C> <C>
BB- / Ba3 or lower 0.400% 0.275%
------------------------------------------------------
BB / Ba2 0.275% 0.225%
------------------------------------------------------
BB+ / Ba1 0.250% 0.200%
------------------------------------------------------
BBB- / Baa3 0.200% 0.175%
------------------------------------------------------
BBB / Baa2 or 0.175% 0.150%
higher
------------------------------------------------------
</TABLE>
After each date which the Administrative Agent receives from the Borrower a
Notice of Change of Senior Unsecured Debt Rating in accordance with the terms of
Section 7.02(c) hereof, the Applicable Commitment Fee Percentage payable by the
Borrower shall be subject to reduction or increase, as applicable and as set
forth in the table above, three Business Days after receipt by the
Administrative Agent of each such notice. In the event that the Senior
Unsecured Debt Rating of the Borrower has ratings differing (a) by up to one
level, the lowest Applicable Commitment Fee Percentage will apply and (b) by
more than one level, the Applicable Commitment Fee Percentage for the level
immediately below the highest Senior Unsecured Debt Rating will apply. Except
as set forth in the following sentence, any such increase or reduction in the
Applicable Commitment Fee Percentages provided for herein shall be effective
three Business Days after receipt by Administrative Agent of such Notice of
Change of Senior Unsecured Debt Rating. If any such Notice of Change of Senior
Unsecured Debt Rating is not timely delivered in accordance with the terms of
Section 7.02(c) hereof, the Applicable Commitment Fee Percentages shall be
determined as if the Senior Unsecured
2
<PAGE>
Debt Rating is BB- / Ba3 or lower, effective from the date such Notice of Change
of Senior Unsecured Debt Rating should have been received until such time as
such notice is received.
"Applicable Margin" means, (a) with respect to LIBOR Advances, a minimum of
1.250% per annum which may be adjusted upward based on the below listed
situations prior to the end of the third fiscal quarter of 1999, and (b) with
respect to Base Advances, a minimum of 0.250% per annum which may be adjusted
upward based on the below listed situations prior to the end of the third fiscal
quarter of 1999, provided that, after the date which the Administrative Agent
and the Lenders receive a Compliance Certificate required to be delivered in
accordance with the terms of Section 7.01 and Section 7.02 hereof using the 1999
third calendar quarter financials of the Borrower, the Applicable Margin will be
adjusted as set forth in the last paragraph of this definition to the following
per annum percentages applicable in the following situations:
<TABLE>
<CAPTION>
----------------------------------------------------
Applicable Margin
Percentages**
----------------------------------------------------
Senior Base LIBOR
Unsecured Debt Advances Advances
Rating of the Borrower
----------------------------------------------------
<S> <C> <C>
BB- / Ba3 or lower 0.500% 1.500%
----------------------------------------------------
BB / Ba2 0.250% 1.250%
----------------------------------------------------
BB+ / Ba1 0.000% 1.000%
----------------------------------------------------
BBB- / Baa3 0.000% 0.750%
----------------------------------------------------
BBB / Baa2 or 0.000% 0.500%
higher
----------------------------------------------------
</TABLE>
**At all times that the Total Leverage Ratio is
greater than 4.00 to 1.00, the Applicable Margin
Percentage set forth above in each case shall be
increased by .250%.
After the date which the Administrative Agent receives a Compliance Certificate
in accordance with the terms of Section 7.01 and Section 7.02 hereof using the
third calendar quarter 1999 financials of the Borrower, the Applicable Margin
payable by the Borrower shall be subject to reduction or increase, as applicable
and as set forth in the table above, (a) three Business Days after receipt by
the Administrative Agent of each Notice of Change of Senior Unsecured Debt
Rating, and (b) on a quarterly basis according to the performance of the
Borrower as tested by the Total Leverage Ratio. In the event that the Senior
Unsecured Debt Rating of the Borrower has ratings differing (i) by up to one
level, the highest Senior Unsecured Debt Rating will apply and (ii) by more than
one level, the Applicable Margin for the level immediately below the highest
Senior Unsecured Debt Rating will apply. Except as set forth in the following
sentence, any such increase or reduction in the Applicable Margin provided for
herein shall be effective (A) three Business Days after receipt by
Administrative Agent of each Notice of Change of Senior Unsecured Debt Rating
delivered in accordance with the terms of Section 7.02(c) and (B) three Business
Days after receipt by the Administrative Agent of the applicable financial
statements and corresponding Compliance Certificate delivered in accordance with
Section 7.01(a) hereof. If financial statements, Compliance Certificate and/or
a Notice of Change of Senior Unsecured Debt Rating of the Borrower setting forth
3
<PAGE>
the Total Leverage Ratio and the Senior Unsecured Debt Rating are not received
by the Administrative Agent by the dates required pursuant to Section 7.01 or
7.02 hereof (as such times may be extended by a waiver in accordance with the
terms hereof), the Applicable Margin shall be determined as if the Total
Leverage Ratio exceeds 4.00 to 1.00 and the Senior Unsecured Debt Rating is BB-
/ Ba3 or lower, during such time and until such time as such financial
statements, Compliance Certificate and/or Notice of Change of Senior Unsecured
Debt Rating are received. For the final quarter of any fiscal year of the
Borrower, at the Borrower's option, the Borrower may provide the unaudited
financial statements of the Borrower, subject only to year-end adjustments, for
the purpose of determining the Total Leverage Ratio and adjusting the Applicable
Margin.
"Applicable Specified Percentage" means with respect to any Lender, in the
case of the Revolver A Loan, such Lender's Revolver A Specified Percentage, in
the case of the Revolver B Loan, such Lender's Revolver B Specified Percentage
and in the case of the Working Line Loan, such Lender's Working Line Loan
Specified Percentage.
"Application" means any stand-by letter of credit application delivered to
Administrative Agent for or in connection with any stand-by Letter of Credit
pursuant to Article III hereof, in Administrative Agent's standard form for
stand-by letters of credit.
"Arranging Agents" means NationsBank, N.A., The Bank of New York, First
Union National Bank and CitiBank, N.A. and any other successor arranging agent
agreed to by the Borrower, the Administrative Agent and the other Arranging
Agents.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee in accordance with the terms and conditions of
Section 11.04 hereof, and accepted by Administrative Agent, in the form of
Exhibit H hereto.
- ---------
"Auditor" means KPMG Peat Marwick, L.L.P., or other independent certified
public accountants selected by the Borrower and reasonably acceptable to
Arranging Agents.
"Authorized Officer" means, with respect to the Borrower and its Restricted
Subsidiaries respectively, any of the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, the General Counsel or the
Treasurer of the Borrower.
"Backbone" means that portion of the Borrower's nationwide fiber optic
communications network identified on Schedule 1.02 hereto, consisting of
-------------
approximately 18,815 route miles of fiber optic cable (i) owned, constructed or
acquired, or to be owned, constructed or acquired, by the Borrower or (ii)
related to which the Borrower has been granted an IRU, as such Backbone may be
adjusted or redirected through changes to designated routes by the Borrower from
time to time as the Borrower may deem advisable in its reasonable business
judgment.
"Bank Affiliate" means the holding company of any Lender, or any wholly
owned direct or indirect subsidiary of such holding company or of such Lender.
"Base Advance" means an Advance under the Revolver A Loan, the Revolver B
Loan or the Working Line Loan, as applicable, bearing interest at the Base Rate.
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<PAGE>
"Base Rate" means a per annum interest rate equal to the lesser of (a) the
Highest Lawful Rate, and (b) the sum of the Applicable Margin plus the higher of
(i) a fluctuating rate per annum as shall be in effect from time to time
announced or published by NationsBank, N.A. as its prime rate, and which may not
necessarily be the lowest interest rate charged by NationsBank, N.A., and (ii)
the Federal Funds Rate in effect at such time plus .50%.
"Board of Directors" means the Board of Directors of the Borrower or any
committee thereof duly authorized to act on behalf of such Board.
"Borrowing" means a borrowing of the same Type made on the same day.
"Borrowing Notice" has the meaning set forth in Section 2.02(a) hereof.
"Business Day" means a day on which banks are open for the transaction of
business as required by this Agreement in New York, New York, Denver, Colorado
and Dallas, Texas and, with respect to any LIBOR Advance, a domestic business
day in London, England and a day on which commercial banks are open for
international business in London, England (including dealings in United States
dollar deposits), and as otherwise relevant to the determination to be made or
the action to be taken.
"Capital Expenditures" means capital expenditures, as defined in accordance
with GAAP.
"Capital Leases" means capital leases and subleases, as defined in
accordance with GAAP.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
of any Person that is a corporation, each class of partnership interests
(including without limitation, general, limited and preference units) in any
Person that is a partnership, and each membership interest in any Person that is
a limited liability company.
"Closing Date" means the date hereof.
"Change of Control" means the occurrence of any one or more of the
following events: (i) any Person or group of Persons (within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended), other than
Philip F. Anschutz or the Anschutz Company or any of their Affiliates, shall
obtain ownership or control in one or more series of transactions of more than
fifty percent (50%) of the common stock of the Borrower or fifty percent (50%)
of the voting power of the Borrower entitled to vote on the election of members
of the board of directors of the Borrower, or (ii) any event which results in
the Borrower's failure to own and control, directly or indirectly, 100% of the
Capital Stock of the Guarantor, so long as the Guarantor is obligated under the
Conditional Early Release Unlimited Guaranty.
"Co-Arrangers" means First Union Capital Markets Corp., BNY Capital
Markets, Inc. and Salomon Smith Barney Inc.
"Co-Syndication Agents" means The Bank of New York, First Union Capital
Markets Corp. and Salomon Smith Barney Inc.
5
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended, and any
reference to any provision of the Code shall include all successor provisions
thereto.
"Commitment" means the Revolver A Commitment, the Working Line Commitment
and the Revolver B Commitment.
"Commitment Fee" means the Revolver A Commitment Fee, the Revolver B
Commitment Fee and the Working Line Commitment Fee.
"Communications Act" means, collectively, the Communications Act of 1934,
as amended by the Telecommunications Act of 1996, and as further amended, and
the rules and regulations promulgated thereunder, as from time to time in
effect.
"Compliance Certificate" means a certificate of an Authorized Officer in
the form of Exhibit E hereto, (a) certifying that such individual has no actual
---------
knowledge that a Default or Event of Default has occurred and is continuing, or
if a Default or Event of Default has occurred and is continuing, a statement as
to the nature thereof and the action being taken or proposed to be taken with
respect thereto, (b) setting forth detailed calculations with respect to the
covenants described in Section 8.01 hereof, (c) certifying to the appropriate
Senior Unsecured Debt Rating, Applicable Margin and Applicable Commitment Fee
Percentage, (d) certifying as to consummated Permitted Acquisitions described in
Section 8.18 (d)(ii) hereof, and (e) certifying as to any changes in Restricted
Subsidiaries, Unrestricted Subsidiaries and Material Subsidiaries, including
without limitation, the creation of new Restricted or Unrestricted Subsidiaries,
mergers, consolidations, liquidations, Dispositions, dissolutions and otherwise.
"Conditional Early Release Unlimited Guaranty" means the Guaranty, executed
in substantially similar form by the Guarantor, guarantying payment and
performance of the Obligations, substantially in the form of Exhibit I attached
---------
hereto, as such agreement may be amended, modified, renewed or extended from
time to time, and each subsequent guaranty substantially (with or without the
conditional early release) in the form of Exhibit I hereto executed by any
---------
Person, as each such agreement may be amended, modified, renewed or extended
from time to time.
"Consequential Loss" with respect to (a) the Borrower's payment of all or
any portion of the then-outstanding principal amount of a LIBOR Advance on a day
other than the last day of the related Interest Period, including, without
limitation, payments made as a result of the acceleration of the maturity of a
Note, (b) subject to Administrative Agents' prior consent, a LIBOR Advance made
on a date other than the date on which the Advance is to be made according to
Section 2.02(a) or Section 2.09 hereof to the extent such Advance is made on
such other date at the request of the Borrower, or (c) any of the circumstances
specified in Sections 2.04, 2.05, 2.06 and 2.11 hereof on which a LIBOR Advance
or a Letter of Credit may cause a Consequential Loss to be incurred, means any
actual out of pocket loss, cost or expense incurred by any Lender as a result of
the timing of the payment or Advance or in liquidating, redepositing,
redeploying or reinvesting the principal amount so paid or affected by the
timing of the Advance or the circumstances described in Sections 2.04, 2.05,
2.06 or 2.11 hereof, which amount shall be the sum of (i) the interest that, but
for the payment or timing of Advance, such Lender would have earned in respect
of that principal amount, reduced, if such Lender is able to redeposit,
redeploy, or reinvest the principal amount, by the interest earned by such
Lender as a result of redepositing, redeploying or reinvesting the principal
amount plus (ii) any expense or penalty incurred by such Lender by reason of
liquidating, redepositing, redeploying
6
<PAGE>
or reinvesting the principal amount. Each determination by each Lender of any
Consequential Loss is, in the absence of manifest error, presumptive evidence of
the validity of such claim.
"Consolidated Net Income" means, with respect to the Borrower and the
Restricted Subsidiaries, the net income of the Borrower and the Restricted
Subsidiaries, on a consolidated basis, determined in accordance with GAAP.
"Consolidated Net Worth" means, with respect to the Borrower and the
Restricted Subsidiaries, the net worth of the Borrower and the Restricted
Subsidiaries, on a consolidated basis, determined in accordance with GAAP.
"Consolidated Revenue" means, with respect to the Borrower and the
Restricted Subsidiaries, the revenue of the Borrower and the Restricted
Subsidiaries, on a consolidated basis, determined in accordance with GAAP.
"Consolidated Tangible Assets" means, with respect to the Borrower and the
Restricted Subsidiaries, on any date of determination, the tangible assets of
the Borrower and the Restricted Subsidiaries, on a consolidated basis,
determined in accordance with GAAP on such date.
"Contingent Liability" means, as to any Person, any obligation or Guaranty,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Debt or obligation of any other Person in any manner,
whether directly or indirectly, including without limitation any obligation of
such Person, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt, (b)
to purchase Property or services for the purpose of assuring the owner of such
Debt of its payment, or (c) to maintain the solvency, working capital, equity,
cash flow, fixed charge or other coverage ratio, or any other financial
condition of the primary obligor so as to enable the primary obligor to pay any
Debt or to comply with any agreement relating to any Debt or obligation, but
excluding endorsement of checks, drafts and other instruments in the ordinary
course of business, provided that this definition of "Contingent Liability"
shall not include Guaranties by the Borrower or any Restricted Subsidiary of the
Borrower of any obligations of the Borrower or any Wholly Owned Restricted
Subsidiary.
"Continue," "Continuation" and "Continued" each refer to the continuation
pursuant to Section 2.09 hereof of a LIBOR Advance from one Interest Period to
the next Interest Period.
"Control" or "Controlled By" or "Under Common Control" mean possession,
direct or indirect, of power to direct or cause the direction of management or
policies (whether through ownership of voting securities, by contract or
otherwise); provided that, in any event any Person which beneficially owns (a)
--------
25% or more (in number of votes) of the securities having ordinary voting power
for the election of directors of a corporation shall be conclusively presumed to
control such corporation and (b) 25% or more of the interest in capital or
profits of a partnership shall be conclusively presumed to control such
partnership.
"Controlled Group" means, as to any Person, all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
which are under common control with such Person and which, together with such
Person, are treated as a single employer under Section 414(b), (c), (m) or (o)
of the Code.
7
<PAGE>
"Conversion Date" means, with respect to the Working Line Loan, the date
upon which the Working Line converts from a revolving loan to a term loan, in
accordance with the terms of Section 2.16(b) hereof.
"Conversion or Continuance Notice" has the meaning set forth in Section
2.09(b) hereof.
"Conversion Option" means, with respect to the Working Line Loan, that
option to be exercised by the Borrower on the Option Date or the Extension Final
Maturity in accordance with the terms of Section 2.16(b) hereof to convert the
Working Line Loan to a term loan.
"Debt" means all obligations, contingent or otherwise, which in accordance
with GAAP are required to be classified on the balance sheet as liabilities, and
in any event including (without duplication) (a) Capital Leases, (b) Contingent
Liabilities that are required to be recorded in accordance with GAAP, (c)
liabilities secured by any Lien on any Property, regardless of whether such
secured liability is with or without recourse, and (d) installment payment non-
compete agreements.
"Debt for Borrowed Money" means, with respect to the Borrower and the
Restricted Subsidiaries, at any date, without duplication, all Debt of the
Borrower and the Restricted Subsidiaries that constitutes (a) all obligations of
the Borrower and such Restricted Subsidiaries for borrowed money, letters of
credit (or applications for letters of credit) or other similar instruments, (b)
all obligations of the Borrower and the Restricted Subsidiaries evidenced by
bonds, debentures, notes or other similar instruments, excluding any surety or
performance bonds, (c) all obligations of the Borrower and the Restricted
Subsidiaries to pay the deferred purchase price of property or services, but
only if such deferral is in excess of 90 days, provided that, trade accounts
-------- ----
payable and other accrued liabilities arising in the ordinary course of business
shall not be considered Debt for Borrowed Money, (d) all obligations under
Capital Leases of the Borrower and the Restricted Subsidiaries, (e) installment
payment non-compete agreements for the Borrower and each Restricted Subsidiary,
but only the amount by which all such non- compete agreements for the Borrower
and the Restricted Subsidiaries when aggregated together exceed $5,000,000, and
(f) all Contingent Liabilities relating to obligations of another Person (other
than the Borrower or a Wholly Owned Restricted Subsidiary of the Borrower with
respect to Debt of another Wholly Owned Restricted Subsidiary or the Borrower)
of the type described in (a) through (e) above.
"Debtor Relief Laws" means applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
"Default" means any event specified in Section 9.01 hereof, whether or not
any requirement in connection with such event for the giving of notice, lapse of
time, or happening of any further condition has been satisfied.
"Disposition" and "Disposed" means any sale, lease, abandonment, transfer,
disposal, exchange or other transfer of ownership, leasehold interest or control
of any asset.
"Distribution" means, as to any Person, (a) any declaration or payment of
any distribution or dividend (other than a common stock dividend or a dividend
in options, warrants or other rights to acquire common Capital Stock of a
Person) on, or the making of any pro rata distribution, loan,
8
<PAGE>
advance, or investment to or in any holder of, any partnership interest or
shares of Capital Stock or other equity interest of such Person (or the
establishment of a sinking fund or otherwise setting aside of funds for any such
purpose), or (b) any purchase, redemption, or other acquisition or retirement
for value of any shares of partnership interest or Capital Stock or other equity
interest of such Person (or the establishment of a sinking fund or otherwise
setting aside of funds for any such purpose).
"Environmental Claim" means any written notice by any Tribunal alleging
liability for damage to the environment, or by any Person alleging liability for
personal injury (including sickness, disease or death), resulting from or based
upon (a) the presence or release (including sudden or non-sudden, accidental or
non-accidental, leaks or spills) of any Hazardous Material at, in or from
property, whether or not owned by the Borrower or any of its Restricted
Subsidiaries, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S)9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. (S)1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. (S)6901 et seq.) ("RCRA"), the Federal
Water Pollution Control Act (33 U.S.C. (S)1251 et seq.), the Clean Air Act (42
U.S.C. (S)7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S)2601 et
seq.), and the Occupational Safety and Health Act (29 U.S.C. (S)651 et seq.)
("OSHA"), as such laws have been or hereafter may be amended or supplemented,
and any and all analogous federal, or state or local, Laws in effect from time
to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to time
in effect.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of the Borrower or any Obligor, any
Restricted Subsidiary or any Unrestricted Subsidiary, or is under common control
with Borrower or any Obligor, any Restricted Subsidiary or any Unrestricted
Subsidiary, within the meaning of Section 414(c) of the Code, and the
regulations and rulings issued thereunder.
"ERISA Event" means (a) a reportable event, within the meaning of Section
4043 of ERISA, unless the 30-day notice requirement with respect thereto has
been waived by the PBGC, (b) the issuance by the administrator of any Plan of a
notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA), (c) the withdrawal by the Borrower, any Restricted
Subsidiary of the Borrower, or an ERISA Affiliate from a Multiple Employer Plan
during a Plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA, (d) the failure by the Borrower, any Restricted
Subsidiary of the Borrower, or any ERISA Affiliate to make a payment to a Plan
required under Section 302 of ERISA, (e) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to Section 307 of
ERISA, or (f) the institution by the PBGC of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
that constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, a Plan.
9
<PAGE>
"Event of Default" means any of the events specified in Section 9.01 of
this Agreement, provided there has been satisfied any requirement in connection
therewith for the giving of notice, lapse of time, or happening of any further
condition.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Existing Financing" means collectively, the Qwest 9.47% Senior Discount
Notes, the Qwest 10.875% Senior Notes, the Qwest 8.29% Senior Discount Notes,
the Qwest 7.50% Senior Notes, the Qwest 7.25% Senior Notes, the LCI Notes and
the Trol Transaction, in each case in effect on any relevant date of reference
and only to the extent that any indebtedness exists under any such documentation
on such date.
"Existing Financing Documentation" means collectively, the Qwest 9.47%
Senior Discount Notes Documentation, the Qwest 10.875% Senior Notes
Documentation, the Qwest 8.29% Senior Discount Notes Documentation, the Qwest
7.50% Senior Notes Documentation, the Qwest 7.25% Senior Notes Documentation,
the LCI Notes Documentation and the Trol Transaction Documentation.
"Existing Letter of Credit" means that certain stand-by Letter of Credit
Number C000638, in the amount of $36,649,997.50, issued by NationsBank, N.A.,
for the account of the Borrower, and for the benefit of American Communication
Network, Inc.
"Extension Final Maturity" means, with respect to the Working Line Loan in
the event that the Borrower and the Lenders have agreed to an Extension Option,
that date which is 364 days after the Option Date.
"Extension Option" means, with respect to the Working Line Loan, that
option to be exercised by the Borrower and agreed to by the SuperMajority
Lenders in accordance with the terms of Section 2.16(a) hereof to extend the
Working Line Loan an additional 364 day period beyond the Option Date.
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such date on such
transactions received by Administrative Agent from three federal funds brokers
of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter, dated March 31,1999, between
the Borrower and the Administrative Agent, and all other fee letters executed
among the Borrower or any Lender[s], as such letters may be amended, modified,
substituted, replaced, or increased from time to time.
"GAAP" means generally accepted accounting principles applied on a
consistent basis. Application on a consistent basis shall mean that the
accounting principles observed in a current
10
<PAGE>
period are comparable in all material respects to those applied in a preceding
period, except for new developments or statements promulgated by the Financial
Accounting Standards Board and other changes in accounting methods permitted by
generally accepted accounting principles.
"Guarantor" means LCI International, Inc., a Delaware corporation.
"Guaranty" means a guaranty executed by any Person of the obligations of
another Person, or any agreement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes liable upon, the obligation of any other Person, or agrees
to maintain the net worth or working capital or other financial condition of any
other Person, or otherwise assures any creditor or such other Person against
loss, including, without limitation, any comfort letter that has the effect of
assuring any such creditor against loss, or take-or-pay contract and shall
include without limitation, the contingent liability of such Person in
connection with any application for a letter of credit.
"Hazardous Materials" means all materials subject to regulation under any
Environmental Law, including without limitation materials listed in 49 C.F.R.
(S) 172.101, Hazardous Substances, explosive or radioactive materials, hazardous
or toxic wastes or substances, petroleum or petroleum distillates, asbestos, or
material containing asbestos.
"Hazardous Substances" means hazardous waste as defined in the Clean Water
Act, 33 U.S.C. (S) 1251 et seq., the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. (S) 9601 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. (S) 6901 et seq., and the Toxic Substances Control Act,
15 U.S.C. (S) 2601 et seq.
"Highest Lawful Rate" means at the particular time in question the maximum
rate of interest which, under Applicable Law, any Lender is then permitted to
charge on the Obligations. If the maximum rate of interest which, under
Applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to the
Borrower.
"Income Tax Expense" means the aggregate income Taxes accrued by the
Borrower and the Restricted Subsidiaries for the relevant period of
determination.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities within the meaning of Section 4001(a)(18) of ERISA.
"Interest Coverage Ratio" means, on any date of determination for the
Borrower and the Restricted Subsidiaries, the ratio of (a) Operating Cash Flow
for the most recently completed 12 month period to (b) the aggregate amount of
cash Interest Expense actually paid during the most recently completed 12 month
period, provided that, for the first fiscal quarter ending after the Closing
Date, the Interest Coverage Ratio shall be calculated on the basis of such first
quarter, for the second fiscal quarter ending after the Closing Date, the
Interest Coverage Ratio shall be calculated on the basis of the prior two fiscal
quarters and for the third fiscal quarter ending after the Closing Date, the
Interest Coverage Ratio shall be calculated on the basis of the prior three
fiscal quarters.
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<PAGE>
"Interest Expense" means, for the Borrower and the Restricted Subsidiaries
on a consolidated basis for any period of determination, the gross interest
expense for any period on Total Debt, determined in accordance with GAAP, minus
the sum of (a) interest income for such period, plus (b) to the extent not
included in the determination of such gross interest expense, upfront costs or
fees expended during such period in connection with the execution and delivery
of documentation relating to the Loan Papers.
"Interest Period" means, with respect to any LIBOR Advance, the period
beginning on the date the Advance is made or continued as a LIBOR Advance and
ending one, two, three, six or, to the extent available as determined by
Administrative Agent, twelve months thereafter (as the Borrower shall select),
provided, however, that:
- -------- -------
(a) the Borrower may not select any Interest Period that ends after
any scheduled principal repayment date unless, after giving effect to such
selection, the aggregate principal amount of LIBOR Advances having Interest
Periods that end on or prior to such principal repayment date, shall be at
least equal to the principal amount of Advances due and payable on and
prior to such date;
(b) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
--------
however, that if such extension would cause the last day of such Interest
-------
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
(c) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month; and
(d) with respect to the Working Line Loan, Interest Periods for LIBOR
Advances must be six months or less.
"Interest Rate Protection Agreement" means an interest rate swap, cap,
collar or similar interest rate protection agreement between the Borrower, any
Lender or any Bank Affiliate.
"Investment" means any direct or indirect purchase or other acquisition of,
or a beneficial interest in, any Capital Stock or other securities of any other
Person, or any direct or indirect loan, advance, or capital contribution to or
investment in any other Person, including without limitation the incurrence or
sufferance of Debt or accounts receivable of any other Person that are not
current assets or do not arise from sales to that other Person in the ordinary
course of business.
"IRU" means an indefeasible right to use fiber or telecommunications
capacity, including the right to use the related transport and network
equipment.
"IRU Agreement" means an agreement pursuant to which an interest in an IRU
is sold or leased or otherwise transferred.
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"KPNQwest Joint Venture" means the KPNQwest Joint Venture as described on
Schedule 5.01(q) hereto.
- ----------------
"Law" means any constitution, statute, law, ordinance, regulation, rule,
order, writ, injunction, or decree of any Tribunal.
"LCI Notes" means those certain $350,000,000 7.25% Senior Notes Due 2007
issued by LCI International, Inc.
"LCI Notes Documentation" means that certain Indenture related to the LCI
Notes and all other agreements and documentation relating to the LCI Notes.
"Lead Arranger" means NationsBanc Montgomery Securities LLC.
"Lenders" means the lenders listed on the signature pages of this
Agreement, and each transferee which hereafter becomes a party to this Agreement
pursuant to Section 11.04 hereof or pursuant to an amendment to this Agreement
who is owed any portion of the Obligations, and each Bank Affiliate that is owed
any portion of the Obligations pursuant to (i) an Interest Rate Protection
Agreement or (ii) Section 2.14 or Section 2.17 hereof, in each case for so long
as each such Person is owed any portion of the Obligations or is obligated to
make any Advance or issue any Letter of Credit hereunder.
"Lending Office" means, with respect to each Lender, its branch or
affiliate, (a) initially, the office of each Lender, branch or affiliate
identified on each Lender's signature page hereto, and (b) subsequently, such
other office of each Lender, branch or affiliate as each Lender may designate to
the Borrower and Administrative Agent as the office from which the Advances of
each Lender will be made and maintained and for the account of which all
payments of principal and interest on the Advances and the Commitment Fee will
thereafter be made. Lenders may have more than one Lending Office for the
purpose of making Base Advances and LIBOR Advances.
"Letter of Credit Commitment" means, on any date of determination, an
amount equal to the lesser of (a) $80,000,000 and (b) the Revolver A Commitment
minus the sum of (i) all outstanding Revolver A Advances under the Revolver A
Loan and (ii) all Swingline Advances.
"Letters of Credit" means the irrevocable standby letters of credit issued
by Administrative Agent under and pursuant to Article III hereof, as each may be
amended, modified, substituted, increased, replaced, renewed or extended from
time to time in accordance with the provisions of Article III hereof, and
specifically including the Existing Letter of Credit, as it may be amended,
modified, substituted, increased, replaced, renewed or extended from time to
time in accordance with the provisions of Article III hereof.
"LIBOR Advance" means an Advance under the Revolver A Loan, the Revolver B
Loan or the Working Line Loan bearing interest at the LIBOR Rate.
"LIBOR Lending Office" means, with respect to each Lender, the office
designated as its "LIBOR Lending Office" on each Lender's signature page hereto,
or such other office of Lender or any of its affiliates hereafter designated by
notice to the Borrower and Administrative Agent.
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"LIBOR Rate" means, for any LIBOR Advance for any Interest Period
therefore, a rate per annum equal to the lesser of (a) the Highest Lawful Rate
and (b) the sum of (i) the Applicable Margin, plus (ii) the rate per annum
(rounded upwards, if necessary, to the nearest one-one hundredth (1/100th) of
one percent (1%)) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in United States dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period. If for any reason such rate is not available, the term
"LIBOR Rate" shall mean, for any LIBOR Advance for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest one-one
hundredth (1/100th) of one percent (1%)) appearing on Reuters Screen LIBO page
as the London interbank offered rate for deposits in United States dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
--------
however, if more than one rate is specified on Reuters Screen LIBO Page, the
- -------
applicable rate shall be the arithmetic mean of all such rates.
"License" means, as to the Borrower or any Restricted Subsidiary of the
Borrower, any license, permit, consent, certificate of need, authorization,
certification, accreditation, franchise, approval, or grant of rights by, or any
filing or registration with, any Tribunal or third Person (including without
limitation, the FCC or any applicable PUC) necessary for such Person to own,
maintain, or operate its business or Property.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien, or
charge of any kind, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement or other similar form of public notice under the Laws of any
jurisdiction (except for the filing of a financing statement or notice in
connection with an (a) operating lease or (b) the true consignment of goods to
the Borrower or any Restricted Subsidiary as consignee).
"Litigation" means any proceeding, claim, lawsuit or arbitration, conducted
by or before any Tribunal or arbitrator, including without limitation
proceedings, claims, lawsuits, under or pursuant to any environmental,
occupational, safety and health, antitrust, unfair competition, securities, Tax,
or other Law, or under or pursuant to any contract, agreement, or other
instrument.
"Loans" means all three of the Revolver A Loan, the Revolver B Loan and the
Working Line Loan, and "Loan" means any one of the Revolver A Loan, the Revolver
B Loan or the Working Line Loan, as applicable in the context used.
"Loan Papers" means this Agreement, the Notes, the Conditional Early
Release Unlimited Guaranty, the Fee Letter[s], financing statements, any
Interest Rate Protection Agreement and related documents entered into by the
Borrower with any Lender or any Bank Affiliate, all Letters of Credit, all
Applications and all other agreements between the Borrower or any Restricted
Subsidiary and the Administrative Agent related to any Letter of Credit, other
fee letters, Assignment and Acceptances, post-closing letters, all security
agreements, pledges, mortgages, deeds of trust, assignments, leasehold
mortgages, leasehold deeds of trust, collateral assignments and other agreements
and documentation relating to the Liens securing the Obligations, and all other
documents, instruments, agreements, or certificates executed or delivered from
time to time by any Person in connection with this Agreement or as security for
the Obligations hereunder, granting
14
<PAGE>
collateral or otherwise, as each such agreement may be amended, modified,
substituted, replaced or extended from time to time.
"Majority Lenders" means, on any date of determination, any combination of
Lenders having collectively at least 51% of the aggregate amount of Advances
under this Agreement; provided, however, that if no Advances are outstanding
under this Agreement, such term means any combination of Lenders having Total
Specified Percentages equal to at least 51% of the aggregate Commitment.
"Managing Agents" means each of ABN AMRO Bank N.V., Banque Nationale de
Paris, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, Dresdner Bank AG, New York and Caymen Island
Branches, Export Development Corporation, Fleet National Bank, Norwest Bank
Colorado, National Association, PNC Bank, National Association, Royal Bank of
Canada, The Bank of Nova Scotia, The First National Bank of Chicago, Toronto
Dominion (Texas), Inc., U.S. Bank National Association, and Westdeutsche
Landesbank Girozentrale, New York Branch.
"Mandatory Borrowing" has the meaning ascribed thereto in Section 2.02(h)
hereof.
"Material Adverse Change" means any circumstance or event that (a) is
material and adverse to the financial condition, business, results of operations
or Properties of the Borrower and the Restricted Subsidiaries taken as a whole,
(b) materially and adversely affects the validity or enforceability of any
Material Loan Document or (c) causes an Event of Default.
"Material Adverse Effect" means any circumstance or event that (a)
materially and adversely affects the financial condition, business, results of
operations or Properties of the Borrower and the Restricted Subsidiaries taken
as a whole or (b) materially and adversely affects the validity or
enforceability of any Material Loan Document.
"Material Licenses" means those Licenses of the Borrower and its Restricted
Subsidiaries (whether FCC, PUC or otherwise) without which a Substantial Portion
of the Backbone will not be permitted to operate. For purposes of this
definition of "Material Licenses", "Substantial Portion" means any portion of
the Backbone the failure of which to operate will have the effect of reducing
consolidated Operating Cash Flow for the Borrower and its Restricted
Subsidiaries by more than ten percent (determined by the most recently completed
12 month period).
"Material Loan Document" means any of this Agreement, each Note, the
Conditional Early Release Unlimited Guaranty, each Fee Letter, each Assignment
and Acceptance, each Application, each Letter of Credit, each Interest Rate
Protection Agreement entered into between any Lender or any Bank Affiliate and
the Borrower or any Restricted Subsidiary, and any other written agreement
executed by and among the Borrower or any Restricted Subsidiary and the
Administrative Agent and/or the Lenders and/or the Bank Affiliates, in each case
in connection with this Agreement and the other Loan Papers from time to time
during the term of this Agreement, as each may be amended, modified,
substituted, replaced or extended from time to time.
"Material Subsidiary" means on any date of determination, any Restricted
Subsidiary that generated in the most recently completed 12 month period in
excess of 10% of the consolidated Operating Cash Flow of the Borrower and its
Restricted Subsidiaries, and "Material Subsidiaries"
15
<PAGE>
means, on any date of determination, the group of one or more Restricted
Subsidiaries which in the aggregate generated in the most recently completed 12
month period not less than 80% of the consolidated Operating Cash Flow of the
Borrower and its Restricted Subsidiaries.
"Maturity Date" means the earlier of March 31, 2004, or such earlier date
on which the total amount of outstanding Obligations are due and payable
(including, without limitation, whether by acceleration, scheduled reduction of
the Commitment to zero, mandatory or voluntary commitment reduction of the
Commitment to zero, installment payments or otherwise) and after which the
Commitments have been reduced to zero.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, a Lender is permitted to charge on the Obligations.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower, any Restricted Subsidiary of the
Borrower, or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions, such plan being maintained pursuant
to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower, any Restricted Subsidiary of the Borrower, or any ERISA Affiliate and
at least one Person other than the Borrower, any Restricted Subsidiary of the
Borrower and any ERISA Affiliate, or (b) was so maintained and in respect of
which the Borrower, any Restricted Subsidiary of the Borrower, or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Proceeds" means the gross cash proceeds received by the Borrower or
any Restricted Subsidiary in connection with, or as a result of, any Disposition
of any asset that is not a Permitted Asset Sale, minus (so long as each of the
following are estimated in good faith and certified to the Administrative Agent
in reasonable detail by an Authorized Officer) (a) actual taxes (estimated in
good faith by not less than three Responsible Officers) incurred as a result of
such Disposition (after giving effect to all tax benefits available to the
Borrower or such Restricted Subsidiary), (b) reasonable and customary
transaction costs paid or payable by the Borrower or any Restricted Subsidiary
that are related to such Disposition and payable to a Person other than an
Unrestricted Subsidiary or an Affiliate of the Borrower and its Subsidiaries,
and (c) any principal, interest, fees, expenses and other amounts paid or
payable within 30 days after the Disposition of any such assets in connection
with the repayment of indebtedness owed to a third Person that is not an
Affiliate of the Borrower or an Unrestricted Subsidiary, which such indebtedness
is secured by Liens on such assets to the extent such Liens are permitted by
Section 8.02(g), Section 8.02(h) or Section 8.03 hereof.
"Notes" means each of the Revolver A Notes, Working Line Notes, Revolver B
Notes and the Swingline Note, and "Note" means any of the Revolver A Note, the
Working Line Note, the Revolver B Note or the Swingline Note, as applicable in
the context used, and in each case, with any extension, renewal or amendment
thereof, or substitution therefor (in accordance with Sections 2.16, 11.04 or
otherwise).
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<PAGE>
"Notice of Change of Senior Unsecured Debt Rating" means that certain
Notice of Change in the Senior Unsecured Debt Rating in the form of Exhibit J
---------
hereto.
"Obligations" means all present and future obligations, indebtedness and
liabilities, and all renewals and extensions of all or any part thereof, of the
Borrower and each other Obligor or Restricted Subsidiary to Lenders,
Administrative Agent arising from, by virtue of, or pursuant to this Agreement,
any of the other Loan Papers and any and all renewals and extensions thereof or
any part thereof, or future amendments thereto, all interest accruing on all or
any part thereof and reasonable attorneys' fees incurred by the Administrative
Agent and Arranging Agents for the preparation of this Agreement and
consummation of this credit facility, execution of waivers, amendments and
consents, and in connection with the enforcement or the collection of all or any
part thereof, and reasonable attorneys' fees incurred by the Lenders or any Bank
Affiliate in connection with the enforcement or the collection of all or any
part of the Obligations during the continuance of an Event of Default, in each
case whether such obligations, indebtedness and liabilities are direct,
indirect, fixed, contingent, joint, several or joint and several, provided that
-------- ----
the definition of Obligations as used in this Agreement shall specifically
include (i) all amounts owed by any Obligor or any Restricted Subsidiary
pursuant to the terms of any Interest Rate Protection Agreement entered into by
the Borrower or such Restricted Subsidiary with the Administrative Agent, any
Lender or any Bank Affiliate, plus (ii) all amounts owed any Bank Affiliate in
accordance with the terms of Section 2.14 hereof or 2.17 hereof. Without
limiting the generality of the foregoing, "Obligations" includes all amounts
which would be owed by the Borrower, each other Obligor or Restricted Subsidiary
and any other Person (other than Administrative Agent or Lenders) to
Administrative Agent, Lenders or any Bank Affiliate under any Loan Paper, but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Borrower,
any other Obligor, any Restricted Subsidiary or any other Person (including all
such amounts which would become due or would be secured but for the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding of the Borrower, any other Obligor, any
Restricted Subsidiary or any other Person under any Debtor Relief Law).
"Obligor" means (a) the Borrower, (b) each Guarantor, (c) each other Person
liable for performance of any of the Obligations and (d) each other Person the
Property of which secures the performance of any of the Obligations.
"Offering Memorandum" means that certain Confidential Offering Memorandum
dated February 1999 prepared in connection with the syndication of the Loans.
"Operating Cash Flow" means, for the Borrower and the Restricted
Subsidiaries, for any period, the consolidated net income (loss) for such period
taken as a single accounting period, plus the sum of the following amounts for
such period to the extent included in the determination of such consolidated net
income or loss, without duplication: (a) depreciation expense, (b) amortization
expense and other non-cash charges, expenses or losses reducing income, (c)
Interest Expense, (d) Income Tax Expense and (e) extraordinary losses, minus the
sum of (i) extraordinary gains and (ii) non-cash income.
"Option Date" means, with respect to the Working Line Loan only, that date
which is 364 days after the Closing Date.
17
<PAGE>
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
agency or entity performing substantially the same functions.
"Permitted Acquisition" means acquisitions made by the Borrower or any
Restricted Subsidiary of (a) assets (except Capital Stock) used in the
Telecommunications Business, including, without limitation, the internet,
internet protocol, web hosting and electronic commerce or (b) the Capital Stock
of a Person operating in the Telecommunications Business, including, without
limitation, the internet, internet protocol, web hosting and electronic
commerce, so long as any such Person becomes a Wholly Owned Restricted
Subsidiary.
"Permitted Asset Sales" means (a) Dispositions of assets in the ordinary
course of business and in accordance with the Borrower's past practices and (b)
Dispositions of equipment that is worn out, obsolete, damaged or otherwise
unsuitable for use in the business.
"Permitted Investments" means, cash and non-cash Investments made after the
Closing Date (which such Investments are not otherwise permitted by subsections
(a) through (f), or (h) through (m) of Section 8.04 hereof), the sum of which in
the aggregate for the Borrower and the Restricted Subsidiaries does not exceed
at any time outstanding, 15% of Consolidated Revenue for the most recently
completed 12 month period. For purposes of determining Consolidated Revenue for
this definition of Permitted Investments, Consolidated Revenue shall be
calculated as if all assets (including the acquisition of Capital Stock of
Subsidiaries) acquired on any date during the period of determination were
acquired on the first day in such period of determination, and all assets
(including the acquisition of Capital Stock of any of the Subsidiaries) sold on
any date during the period of determination were sold on the first day in such
period of determination. Notwithstanding the foregoing, to the extent and at
the time that any series of Investments permitted under Section 8.04 hereof
constitutes an acquisition of the Capital Stock of a Person that becomes a
Wholly Owned Restricted Subsidiary that is also permitted by the terms of
Section 8.18 hereof, such series of Investments shall no longer be included as
an Investment in determining the outstanding Investments for inclusion in the
basket set forth above.
"Permitted Liens" means, as applied to any Person:
(a) any Lien in favor of the Lenders to secure the Obligations hereunder;
(b) (i) Liens on real estate for real estate Taxes not yet delinquent or
claims being diligently contested in good faith, (ii) Liens created by lease
agreements, licenses or similar interests, or by statute or common law to secure
the payments of rental, license amounts or similar amounts and other sums not
yet due thereunder, (iii) Liens on leasehold interests, licenses or similar
interests created by the lessor, licensee or grantor thereunder in favor of any
mortgagee of the leased premises, and (iv) Liens for Taxes, assessments,
governmental charges, levies or claims that are not yet delinquent or remain
payable without penalty or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on such Person's books, but only so long as no
foreclosure, restraint, sale or similar proceedings have been commenced with
respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and materialmen
and other similar Liens incurred in the ordinary course of business for sums not
yet due or being contested in
18
<PAGE>
good faith, if such reserve or appropriate provision, if any, as shall be
required by GAAP shall have been made therefor, and in addition to the
foregoing, Liens of carriers, warehousemen, mechanics, laborers and materialmen
and other similar Liens incurred in the ordinary course of business that in the
aggregate do not secure liabilities in excess of $10,000,000 outstanding at any
one time;
(d) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or similar legislation;
(e) Easements, right-of-way, zoning restrictions, servitudes, matters of
public record, restrictions and other similar encumbrances on the use of real
property which do not materially interfere with the ordinary conduct of the
business of such Person as being conducted;
(f) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a stay of
execution upon any such appeal or proceeding for review shall have been secured,
provided that (i) such Person shall have established adequate reserves for such
judgments or awards, (ii) such judgments or awards shall be fully insured
(subject to deductibles) and the insurer shall not have denied coverage, or
(iii) such judgments or awards shall have been bonded to the satisfaction of the
Majority Lenders;
(g) Any Liens existing on the Closing Date which are described on Schedule
--------
8.03 hereto and not otherwise described elsewhere in the definition of Permitted
- ----
Liens, and Liens resulting from the refinancing of the related Debt for Borrowed
Money, provided that the Debt for Borrowed Money secured thereby shall not be
increased and the Liens shall not cover additional assets of the Borrower or any
such Restricted Subsidiary;
(h) Liens, deposits, or pledges to secure the performance of bids, tenders,
contracts (other than contracts for the payment of money), leases, public or
statutory obligations, surety, stay appeal, indemnity, performance or other
similar bonds, or other similar obligations arising in the ordinary course of
business;
(i) Liens arising solely by virtue of any statutory or common law provision
relating to banker's liens, rights of set-off or similar rights and remedies as
to deposit accounts or other funds maintained with a creditor or deposit
accounts or other funds maintained with a creditor depository institution;
provided that (i) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by the Borrower in
excess of those set forth by regulations promulgated by the Board of Governors
of the Federal Reserve System or any governmental authority succeeding to any of
its principal functions, and (ii) such deposit account is not intended by the
Borrower to provide collateral to the depository institution; and
(j) any UCC-1 or UCC-3 filing against the Borrower or any Restricted
Subsidiary (i) which were filed in connection with Debt which has been repaid in
full and extinguished, (ii) with respect to which an Authorized Officer of the
Borrower or such Restricted Subsidiary has not had actual knowledge of their
existence for more than 30 days, (iii) with respect to which any commitment,
obligation or liability of the Borrower or any such Restricted Subsidiary and
any such lender or creditor has been terminated and (iv) with respect to which
all documentation creating any lien, hypothecation or security interest related
to such UCC filing has been terminated whether pursuant to its terms or
otherwise.
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<PAGE>
"Permitted Refinancing Indebtedness" means Debt of the applicable Obligor
or Restricted Subsidiary to the extent all of the net proceeds thereof are used
to refinance Debt of such Obligor or Restricted Subsidiary, provided that after
giving effect to the incurrence of such Debt, the Borrower is in pro forma
compliance with the terms of this Agreement, and provided further that (i) the
material terms of such new Debt are no more restrictive than the Existing
Financing Documentation (including, without limitation, the maturity, financial
covenants and restrictive covenants), (ii) the maturity of such new Debt is no
shorter than the Debt being refinanced, (iii) the priority of any such new Debt
shall remain unchanged (if such Debt to be refinanced is Subordinated
Indebtedness, the subordination provisions shall remain substantially unchanged
in the new refinanced Debt), and (iv) other than with respect to the LCI Notes
in which case the Borrower may become obligated on such LCI Notes and the
Guarantor may be released, the parties obligated on (or with respect to) such
Debt remain the same.
"Person" means an individual, partnership, joint venture, corporation,
limited liability company, trust, Tribunal, unincorporated organization, and
government, or any department, agency, or political subdivision thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Prohibited Transaction" has the meaning specified in Section 4975 of the
Code or Section 406 of Title I of ERISA.
"Property" means all types of real, personal, tangible, intangible, or
mixed property, whether owned or hereafter acquired in fee simple or leased by
the Borrower and the Restricted Subsidiaries.
"PUC" means any state regulatory agency or body that exercises jurisdiction
over the rates or services or the ownership, construction or operation of any
long distance network facility or telecommunications systems or over Persons who
own, construct or operate a long distance network facility or telecommunications
systems, in each case by reason of the nature or type of the business subject to
regulation and not pursuant to laws and regulations of general applicability to
Persons conducting business in such state.
"Quarterly Date" means the last Business Day of each March, June, September
and December during the term of this Agreement.
"Qwest 8.29% Senior Discount Notes" means those certain 8.29% Series B
Senior Discount Notes Due 2008 issued by the Borrower.
"Qwest 8.29% Senior Discount Notes Documentation" means that certain
Indenture dated January 29, 1998 related to the Qwest 8.29% Senior Discount
Notes and all other agreements and documentation relating to the Qwest 8.29%
Senior Discount Notes.
20
<PAGE>
"Qwest 9.47% Senior Discount Notes" means those certain 9.47% Series B
Senior Discount Notes Due 2007 issued by the Borrower.
"Qwest 9.47% Senior Discount Notes Documentation" means that certain
Indenture dated October 15, 1997 related to the Qwest 9.47% Senior Discount
Notes and all other agreements and documentation relating to the Qwest 9.47%
Senior Discount Notes.
"Qwest 7.50% Senior Notes" means those certain 7.50% Senior Notes Due 2008
issued by the Borrower.
"Qwest 7.50% Senior Notes Documentation" means that certain Indenture dated
November 4, 1998 related to the Qwest 7.50% Senior Notes and all other
agreements and documentation relating to the Qwest 7.50% Senior Notes.
"Qwest 10.875% Senior Notes" means those certain 10.875% Series B Senior
Notes Due 2007 issued by the Borrower.
"Qwest 10.875% Senior Notes Documentation" means that certain Indenture
dated August 28, 1997 related to the Qwest 10.875% Senior Notes and all other
agreements and documentation relating to the Qwest 10.875% Senior Notes.
"Qwest 7.25% Senior Notes" means those certain 7.25% Senior Notes Due 2008
issued by the Borrower.
"Qwest 7.25% Senior Notes Documentation" means that certain Indenture dated
November 27, 1998 related to the Qwest 7.25% Senior Notes and all other
agreements and documentation relating to the Qwest 7.25% Senior Notes.
"Refinancing Advance" means any Advance which is used to pay the principal
amount (or any portion thereof) of an Advance at the end of its Interest Period
and which, after giving effect to such application, does not result in an
increase in the aggregate amount of outstanding Advances.
"Release Date" means the date on which the Notes have been paid, all other
Obligations due and owing have been paid and performed in full, and the
Commitment has been terminated.
"Repayment Event" means any event or circumstance which meets any of the
following criteria: (i) causes any mandatory redemption, prepayment or other
repayment in full (excluding any scheduled repayments) of any Debt for Borrowed
Money or (ii) permits the holders of any Debt for Borrowed Money to redeem in
full, to demand the prepayment or repayment in full of any Debt for Borrowed
Money.
"Responsible Officer" means with respect to the Borrower and its Restricted
Subsidiaries respectively, any Authorized Officer, any Executive Vice President
and any Senior Vice President.
"Restricted Payments" means, for the Borrower and the Restricted
Subsidiaries of the Borrower, (a) any direct or indirect Distribution, dividend
or other payment on account of any equity interest in, or shares of, Capital
Stock or other securities, of the Borrower and its Restricted Subsidiaries (or
the establishment of any sinking fund or otherwise the setting aside of any
funds with respect thereto), except such dividends that are paid with common
equity securities of the
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<PAGE>
Borrower; (b) any management, consulting or other similar fees, or any interest
thereon, payable by the Borrower or any of the Restricted Subsidiaries to any
Unrestricted Subsidiary and/or any other Affiliate of the Borrower other than a
Wholly Owned Restricted Subsidiary (or the establishment of any sinking fund or
otherwise the setting aside of any funds with respect thereto), but specifically
excluding any consulting fees payable by the Borrower or any Restricted
Subsidiary to a Person that is not an Unrestricted Subsidiary or an Affiliate of
the Borrower, (c) loans or advances to employees and/or shareholders of the
Borrower and the Subsidiaries of the Borrower; (d) payments of principal and/or
interest, or the setting aside of funds with respect thereto, of any Total Debt
except the Obligations; (e) dividends, distributions, redemptions, repurchases
or defeasance of any preferred stock issuance (or the setting aside of any funds
to do so); and (f) payments of any amounts, fees, advances, loans, investments
or otherwise to any Unrestricted Subsidiary, except Permitted Investments.
"Restricted Subsidiary" means, as of any date of determination, all those
Subsidiaries of the Borrower that are not Unrestricted Subsidiaries, provided
that, notwithstanding the foregoing, all Subsidiaries designated by the Borrower
as Restricted Subsidiaries on the Closing Date shall remain Restricted
Subsidiaries until the earlier of either (i) the Obligations being repaid in
full and the Commitments terminated or (ii) the re-designation of such
Restricted Subsidiary by the Borrower with the written approval of Majority
Lenders.
"Revolver A Advance" means any advance made under the Revolver A Loan.
"Revolver A Commitment" means, with respect to the Revolver A Loan,
$250,000,000, as reduced from time to time pursuant to Section 2.11 hereof.
"Revolver A Commitment Fee" means the fee described in Section 2.10(a)(i)
hereof.
"Revolver A Loan" means the loan made by Lenders pursuant to Section
2.01(a) of this Agreement.
"Revolver A Note" means each Note of the Borrower evidencing Revolver A
Advances under the Revolver A Loan hereunder, substantially in the form of
Exhibit A hereto, together in each case, with any extension, renewal or
- ---------
amendment thereof, or substitution therefor.
"Revolver A Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof designated as its
Revolver A Specified Percentage, or as adjusted or specified (i) in any
Assignment and Acceptance or (ii) in any amendment to this Agreement.
"Revolver B Advance" means any advance made under the Revolver B Loan.
"Revolver B Commitment" means, with respect to the Revolver B Loan,
$250,000,000, as reduced from time to time pursuant to Section 2.11 hereof.
"Revolver B Commitment Fee" means the fee described in Section 2.10(a)(iii)
hereof.
"Revolver B Loan" means the loan made by Lenders pursuant to Section
2.01(c) of this Agreement.
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"Revolver B Note" means each Note of the Borrower evidencing Revolver B
Advances hereunder, substantially in the form of Exhibit C hereto, together in
---------
each case, with any extension, renewal or amendment thereof, or substitution
therefor.
"Revolver B Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof designated as its
Revolver B Specified Percentage, or as adjusted or specified (i) in any
Assignment and Acceptance or (ii) in any amendment to this Agreement.
"Rights" means rights, remedies, powers, and privileges.
"Senior Unsecured Debt Rating" means the Borrower's senior unsecured debt
rating as announced by Standard & Poor's Ratings Group, a Division of McGraw-
Hill, Inc. or Moody's Investors Service, Inc.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, other than a Multiple Employer Plan of the Borrower.
"Sole Book Running Manager" means NationsBanc Montgomery Securities LLC.
"Solvent" means, as of any date of determination, with respect to any
Person, that on such date such Person is not "insolvent" (as that term is
defined in section 101 of the Bankruptcy Reform Act of 1978, as amended from
time to time and any successor statute), (b) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature, and (c) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's Property would constitute an unreasonably
small capital.
"Special Counsel" means the law firm of Donohoe, Jameson & Carroll, P.C.,
or such other individual or firm acting as special counsel to Administrative
Agent, as designated by Administrative Agent from time to time.
"Specified Change of Control" means any event which constitutes any "change
of control" or "change in control" as defined in (i) any of the Existing
Financing Documentation or (ii) any other instrument evidencing any then
outstanding and unpaid Debt for Borrowed Money in excess of $25,000,000.
"Subordinated Indebtedness" means Debt of the Borrower that is unsecured
and subordinated to the Obligations, such Debt in each case (a) to be pursuant
to the terms and conditions set forth on Schedule 1.01 hereto and (b) to be
-------------
pursuant to documentation containing material terms and conditions no more
onerous or restrictive than this Agreement and the Material Loan Documents.
"Subsidiary" of any Person means any corporation, limited liability
company, partnership, joint venture, trust or estate of which (or in which) more
than 50% of:
(a) the outstanding Capital Stock having voting power to elect a
majority of the board of directors of such corporation (irrespective of
whether at the time Capital Stock of
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any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such partnership or
joint venture, or
(c) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by such Person, by such Person and
one or more of its Subsidiaries or by one or more of such Person's Subsidiaries.
"SuperMajority Lenders" means any combination of Lenders having at least
66.67% of the aggregate amount of Advances under this Agreement; provided,
however, that if no Advances are outstanding under this Agreement, such term
means any combination of Lenders having Total Specified Percentages equal to at
least 66.67% of the aggregate Commitment.
"Swingline Advance" means an Advance made pursuant to Section 2.01(a)(ii)
hereof.
"Swingline Bank" means NationsBank, N.A. and any successor thereto
appointed in accordance with Section 10.06 hereof.
"Swingline Commitment" means the lesser of (a) $25,000,000 and (b) the
Revolver A Commitment minus the sum of (i) all outstanding Swingline Advances,
plus (ii) all outstanding Revolver A Advances, plus (iii) the outstanding face
amount of all Letters of Credit, plus (iv) without duplication, all
reimbursement obligations owed under Article III hereof.
"Swingline Facility" means that certain swingline facility available to the
Borrower in accordance with the terms of Section 2.01(a)(ii) hereof.
"Swingline Loans" means the loans made under the Swingline Facility from
time to time.
"Swingline Note" means the Swingline Note of the Borrower payable to the
order of the Swingline Bank, evidencing Swingline Advances hereunder,
substantially in the form of Exhibit D hereto, together with any extension,
renewal or amendment thereof or substitution therefor.
"Taxes" means all taxes, assessments, imposts, fees, or other charges at
any time imposed by any Laws or Tribunal.
"Telecommunications Business" means the business of (i) transmitting, or
providing services relating to the transmission of, voice, data or video through
owned or leased transmission facilities, (ii) constructing, creating, developing
or marketing communications related network equipment, software and other
devices for use in a telecommunications business, or (iii) evaluating,
participating in or pursuing any other activity or opportunity that is primarily
related to those identified in (i) or (ii) above, provided that the
determination of what constitutes a telecommunications business under this
definition shall be made in good faith by the Board of Directors.
"Total Debt" means all Debt for Borrowed Money which would be shown on a
consolidated balance sheet in accordance with GAAP, including, without
limitation for the Borrower and the Restricted Subsidiaries, (a) Capital Lease
obligations, (b) Debt of any other Person secured by a Lien
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on the property of the Borrower or any Restricted Subsidiary in an amount equal
to the lesser of (i) such Debt of such Person and (ii) the value of such pledged
property, (c) Contingent Liabilities to the extent any such Contingent
Liabilities constitute Debt for Borrowed Money, (d) Withdrawal Liability and (e)
overdue interest on any Debt for Borrowed Money (but not accrued interest that
is not overdue).
"Total Leverage Ratio" means, on any date of determination, the ratio of
(a) Total Debt on such date to (b) Annualized Operating Cash Flow, provided that
(i) the calculation of Total Debt for purposes of the Total Leverage Ratio will
be net of the sum of any cash balances in excess of $10,000,000 and (ii) for
purposes of this calculation, Operating Cash Flow shall be calculated as if all
assets (including the acquisition of Capital Stock of Restricted Subsidiaries)
acquired on any date during the period of determination were acquired on the
first day in such period of determination, and all assets (including the
acquisition of Capital Stock of Restricted Subsidiaries) sold on any date during
the period of determination were sold on the first day in such period of
determination.
"Total Specified Percentage" means, as to any Lender on any date of
determination, the percentage that such Lender's outstanding Advances (all
Revolver A Advances, Revolver B Advances and Working Line Advances) bears to the
aggregate outstanding amount of Advances (all Revolver A Advances, Revolver B
Advances and Working Line Advances) made by all Lenders hereunder, provided
that, if there are no outstanding Advances hereunder, "Total Specified
Percentage" shall mean for such Lender the percentage that the sum of its (a)
Revolver A Specified Percentage of the Revolver A Commitment plus (b) Revolver B
Specified Percentage of the Revolver B Commitment, plus (c) Working Line
Specified Percentage of the Working Line Commitment bears to the aggregate
Commitments of all Lenders on such date.
"Tribunal" means any state, commonwealth, federal, foreign, territorial, or
other court or government body, subdivision, agency, department, commission,
board, bureau, or instrumentality of a governmental body.
"TROL Transaction" means that certain synthetic lease transaction pursuant
to the TROL Transaction Documentation.
"TROL Transaction Documentation" means that certain (1) Trust Agreement,
dated as of November 15, 1996, between NationsBank, N.A. (successor by merger to
NationsBank of Texas, N.A.), The Industrial Bank of Japan, Ltd., The Bank of New
York, The Bank of Nova Scotia, PNC Leasing Corp. and The First National Bank of
Chicago each as holders, and First Security Bank, National Association, as the
Owner Trust, (2) that certain Participation Agreement, dated as of November 15,
1996, among LCI International, Inc., as the Construction Agent and as the
Lessee, First Security Bank, National Association, as the Owner Trustee, the
various banks and lending institutions which are parties thereto as holders, the
various banks and lending institutions which are parties thereto from time to
time, as the lenders and NationsBank, N.A. as the agent for the lenders, (3)
that certain Credit Agreement dated as of November 15, 1996 among First Security
Bank, National Association, as the owner trustee as the borrower the several
lenders from time to time party thereto and NationsBank, N.A. as the agent, (4)
those certain Tranche A Notes, each dated as of November 15, 1996, payable to
the order of NationsBank, N.A., The Industrial Bank of Japan, Ltd., The Bank of
New York, The Bank of Nova Scotia, The First National Bank of Chicago and PNC
Leasing Corp., respectively, (5) that certain Unconditional Guaranty Agreement
dated as of November 15, 1996 made by LCI International, Inc. as guarantor in
favor of NationsBank, N.A., as
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agent for the ratable benefit of the Tranche A lenders, (6) those certain
Tranche B Notes, each dated as of November 15, 1996, payable to the order of
NationsBank, N.A., The Industrial Bank of Japan, Ltd., The Bank of New York, The
Bank of Nova Scotia, The First National Bank of Chicago and PNC Leasing Corp.,
respectively, and (7) all such other documents, receipts, deeds of trust,
security agreements and other agreements and certificates (including, without
limitation, certificates of trust) executed in connection with the foregoing
agreements, in each case as each such agreement, receipt or other document or
certificate has been or shall be amended, extended, or modified from time to
time in accordance with the terms of this Agreement.
"Type" refers to the distinction between Advances bearing interest at the
Base Rate and LIBOR Rate.
"UCC" means the Uniform Commercial Code as adopted in the State of New
York.
"Unrestricted Subsidiary" means those Subsidiaries of the Borrower that are
designated in writing to the Administrative Agent and each Lender by the
Borrower as Unrestricted Subsidiaries, provided that no Restricted Subsidiary
existing on the Closing Date may be designated as an Unrestricted Subsidiary
without the prior written consent of Majority Lenders. Each newly formed or
acquired Unrestricted Subsidiary shall be effective as of the date of formation
or acquisition, respectively.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Restricted Subsidiary" means, as of any date of
determination, a Restricted Subsidiary that is owned 100%, directly or
indirectly, by the Borrower, provided that, with respect to foreign Subsidiaries
of the Borrower, "Wholly Owned Restricted Subsidiary" shall also include those
foreign Subsidiaries of the Borrower that are 99% or above owned directly or
indirectly by the Borrower.
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
"Working Line Advance" means any advance made under the Working Line Loan.
"Working Line Commitment" means, with respect to the Working Line Loan
prior to the Conversion Date, $500,000,000, as reduced from time to time
pursuant to Section 2.11 and Section 2.16 hereof, or as increased in accordance
with the terms of Section 2.16 hereof, provided that, (a) on the Option Date, if
the Borrower and the SuperMajority Lenders have not agreed to an Extension
Option or the Borrower has not exercised its Conversion Option in each case in
accordance with the terms of Section 2.16 hereof, the Working Line Commitment
shall mean $0.00 and (b) on and after the Extension Final Maturity, the Working
Line Commitment shall mean $0.00.
"Working Line Commitment Fee" means the fee described in Section
2.10(a)(ii) hereof.
"Working Line Loan" means the revolving 364 day short term revolving loan
made by the Lenders pursuant to Section 2.01(b) of this Agreement.
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"Working Line Note" means each Note of the Borrower evidencing Working Line
Advances hereunder, substantially in the form of Exhibit B hereto with respect
to Working Line Advances made under the Working Line Loan, together with any
extension, renewal or amendment thereof, or substitution therefor, and each note
evidencing the Working Line Loan after the Conversion Date, in accordance with
the terms of Section 2.16 hereof, together with any extension, renewal or
amendment thereof, or substitution therefor.
"Working Line Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof designated as its
Working Line Specified Percentage, or as adjusted or specified (i) in accordance
with the terms of Section 2.16 hereof, (ii) in any Assignment and Acceptance or
(iii) in any amendment to this Agreement.
"Year 2000 Compliance" means, with respect to a Person, that all computer
hardware and software that are material to the business and operations of such
Person taken as a whole and over which such Person has sole and direct control
will on a timely basis be able to perform properly date-sensitive functions for
all dates before and after January 1, 2000, including functions with respect to
any leap year.
1.02. Accounting and Other Terms. All accounting terms used in this
Agreement which are not otherwise defined herein shall be construed in
accordance with GAAP on a consolidated basis for the Borrower and its
Subsidiaries, unless otherwise expressly stated herein (acknowledging that
excluding the Unrestricted Subsidiaries is not in accordance with GAAP).
References herein to one gender shall be deemed to include all other genders.
Except where the context otherwise requires, (a) definitions imparting the
singular shall include the plural and vice versa and (b) all references to time
are deemed to refer to New York time. In any calculation made hereunder,
including, without limitation, calculations made under Section 8.01 hereof, to
the extent that any such calculations are made in reliance upon financial
information supplied to the Administrative Agent and the Lenders in accordance
with the terms hereof and such information is later corrected or changed in any
manner (pursuant to an audited statement or otherwise), all such calculations
made in accordance with the terms hereof shall be changed and effective
retroactively as if the correct information had been delivered originally.
ARTICLE II. THE LOAN FACILITY
2.01. Loans.
(a) Revolver A Loan.
(i) Revolver A Advances. Each Lender severally agrees, on the
terms and subject to the conditions hereinafter set forth, to make
Revolver A Advances to the Borrower on a Business Day during the
period from the Closing Date to the Maturity Date, in an aggregate
principal amount not to exceed at any time outstanding such Lender's
Revolver A Specified Percentage of the difference between the Revolver
A Commitment and the sum of (without duplication) (i) the undrawn face
amount of all outstanding Letters of Credit, plus (ii) reimbursement
obligations under Article III hereof, plus (iii) Swingline Advances
then outstanding, plus (iv) Revolver A
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Advances then outstanding. Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow the Revolver A
Advances; provided, however, that at no time shall the sum of (without
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duplication) (A) all outstanding Revolver A Advances, plus (B) the
undrawn face amount of all outstanding Letters of Credit, plus (C)
reimbursement obligations under Article III hereof, plus (D) Swingline
Advances then outstanding, exceed the Revolver A Commitment.
(ii) Swingline Advances. The Borrower may request the Swingline
Bank to make, and the Swingline Bank shall make, on the terms and
conditions hereinafter set forth, advances to the Borrower from time
to time on any Business Day during the period from the Closing Date to
the Maturity Date in an aggregate principal amount not to exceed at
any time the Swingline Commitment. Each Swingline Advance shall be in
an amount not less than $100,000 and shall bear interest at a money
market rate quoted by the Swingline Bank. Within the limits of the
Swingline Facility and subject to the terms hereof, Swingline Advances
may be repaid and then reborrowed; provided, that each Swingline
Advance must be repaid no later than 14 calendar days after the date
of such Swingline Advance.
(b) Working Line Loan. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make revolving Working
Line Advances available to the Borrower on a Business Day during the period
from the Closing Date to the Option Date (or the Extension Final Maturity
if the Borrower exercised its Extension Option in accordance with the terms
of Section 2.16(a) hereof), in an aggregate principal amount not to exceed
at any time outstanding such Lender's Working Line Specified Percentage of
the difference between the Working Line Commitment and the sum of Working
Line Advances then outstanding. On the Conversion Date all outstanding
Working Line Advances shall convert to a term loan in the amount of the
outstanding Working Line Advances outstanding on the Conversion Date and
such term loan shall be due and payable in one payment on the Maturity
Date. Subject to the terms and conditions of this Agreement, until the
earlier of the (x) Option Date (or the Extension Final Maturity if the
Borrower exercised its Extension Option in accordance with the terms of
Section 2.16(a) hereof) and (y) Conversion Date, the Borrower may borrow,
repay and reborrow the Working Line Advances; provided, however, that at no
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time shall the sum of all outstanding Working Line Advances exceed the
Working Line Commitment. After the Conversion Date, no Advances will be
available under the Working Line Loan except Refinancing Advances.
(c) Revolver B Loan. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make Revolver B
Advances to the Borrower on any Business Day during the period from the
Closing Date to the Maturity Date, in an aggregate principal amount not to
exceed at any time outstanding such Lender's Revolver B Specified
Percentage of the difference between the Revolver B Commitment and the sum
of Revolver B Advances then outstanding. Subject to the terms and
conditions of this Agreement, the Borrower may borrow, repay and reborrow
the Revolver B Advances; provided, however, that at no time shall the sum
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of all outstanding Revolver B Advances exceed the Revolver B Commitment.
2.02. Making Advances.
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(a) Working Line Advances Prior to the Conversion Date, Revolver A Advances
and Revolver B Advances. Each Borrowing of Working Line Advances Prior to the
Conversion Date, Revolver A Advances and Revolver B Advances shall be made upon
the written notice of the Borrower, received by Administrative Agent not later
than (i) 12:00 p.m. central standard time three Business Days prior to the date
of the proposed Borrowing, in the case of Advances which are LIBOR Advances and
(ii) 12:00 p.m. central standard time on the date of such Borrowing, in the case
of Advances which are Base Advances. Each such notice of a Borrowing (a
"Borrowing Notice") shall be by telecopy or telephone, promptly confirmed by
letter, in substantially the form of Exhibit F hereto specifying therein:
---------
(i) the date of such proposed Borrowing, which shall be a
Business Day, and whether such Borrowing will be under the Revolver A Loan,
the Revolver B Loan, or, prior to the Conversion Date, the Working Line
Loan;
(ii) the Type of Advances of which the Borrowing is to be
comprised;
(iii) the amount of such proposed Borrowing which, (A) with
respect to Advances drawn under (I) the Revolver A Loan, shall not exceed
the unused portion of the Revolver A Commitment, (II) the Revolver B Loan,
shall not exceed the unused portion of the Revolver B Commitment, and (III)
prior to the Conversion Date, the Working Line Loan, shall not exceed the
unused portion of the Working Line Commitment and (B) shall (I) in the case
of a Borrowing of Base Advances, be in an amount of not less than
$2,000,000 or an integral multiple of $1,000,000 in excess thereof (or any
lesser amount if such amount is the remaining undrawn portion under the
Revolver A Commitment, Revolver B Commitment or Working Line Commitment,
respectively), and (II) in the case of a Borrowing of LIBOR Advances, be in
an amount of not less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof; and
(iv) if the Borrowing is to be comprised of LIBOR Advances, the
duration of the initial Interest Period applicable to such Advances.
If the Borrowing Notice fails to specify (a) whether such Borrowing is under the
Revolver A Loan, the Revolver B Loan or the Working Line Loan, then such
Borrowing shall be deemed to be made under the Revolver A Loan or (b) the
duration of the initial Interest Period for any Borrowing or Refinancing
Advance, as applicable, comprised of LIBOR Advances, such Interest Period shall
be one month. Administrative Agent shall promptly notify Lenders of each such
notice. Each Lender shall, before 1:00 p.m. on the date of each Advance under
the Revolver A Loan, the Revolver B Loan and the Working Line Loan hereunder
(other than a Refinancing Advance), make available to Administrative Agent, at
its office at NationsBank Plaza, 901 Main Street, Dallas, Texas 75202, such
Lender's Applicable Specified Percentage of the aggregate Advances under the
respective Loan requested, to be made on that day in immediately available
funds.
(b) Swingline Advances. In the case of Swingline Advances, the Borrower
shall give the Swingline Bank and the Administrative Agent irrevocable
telephonic notice prior to 12:00 noon, Dallas, Texas time, on the date of any
proposed Swingline Advance, provided, however, (i) the Borrower shall deliver
written notice at least once a week confirming the telephonic notices given by
the Borrower with respect to Swingline Advances during the immediately preceding
week and (ii) that the Borrower's failure to confirm any telephonic notice in
writing shall not invalidate any
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notice so given) of its intention to borrow or reborrow a Swingline Advance.
Such notice of borrowing shall specify (i) the requested funding date, which
shall be a Business Day, (ii) the amount of the proposed Swingline Advance and
(iii) the maturity date of the proposed Swingline Advance, which shall be no
longer than 14 calendar days after the date of the proposed Swingline Advance.
(c) Availability of Funds. Unless any applicable condition specified in
Article IV has not been satisfied, Administrative Agent will make the funds
promptly available to the Borrower (other than with respect to a Refinancing
Advance) by either (i) wiring such amounts pursuant to any wiring instructions,
or (ii) depositing such amount in the account of the Borrower at the
Administrative Agent, in each case as specified by the Borrower to the
Administrative Agent in writing.
(d) Number of Interest Periods and Maximum Borrowings. After giving effect
to any Borrowing, (i) there shall not be more than seven different Interest
Periods in effect and (ii) the aggregate principal amount of outstanding
Advances under (A) the Revolver A Loan and the Swingline Loan, plus the sum of
the outstanding face amount of the Letters of Credit, and (without duplication)
reimbursement obligations under Article III shall not exceed the Revolver A
Commitment, (B) the Revolver B Loan shall not exceed the Revolver B Commitment,
(C) the Working Line Loan shall not exceed the Working Line Commitment and (D)
the Swingline Loan shall not exceed the Swingline Commitment.
(e) Interest Period Limitations. No Interest Period applicable to any
Advance shall extend beyond the Maturity Date. Prior to the Conversion Date, no
Interest Period for any Working Line Advance shall extend beyond the Conversion
Date, unless the Borrower has elected to exercise its Conversion Option.
(f) Reliance by Administrative Agent. Unless a Lender shall have notified
Administrative Agent prior to the date of any Advance that it will not make
available its Applicable Specified Percentage of any Advance, Administrative
Agent may assume that such Lender has made the appropriate amount available in
accordance with Section 2.02(a) hereof, and Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent any Lender shall not have made such amount
available to Administrative Agent, such Lender and the Borrower severally agree
to repay to Administrative Agent immediately on demand such corresponding amount
together with interest thereon, from the date such amount is made available to
the Borrower until the date such amount is repaid to Administrative Agent, at
(i) in the case of the Borrower, the Base Rate, and (ii) in the case of such
Lender, the Federal Funds Rate.
(g) Failure by Lender to Make Advance. The failure by any Lender to make
available its Applicable Specified Percentage of any Advance hereunder shall not
relieve any other Lender of its obligation, if any, to make available its
Applicable Specified Percentage of any Advance. In no event, however, shall any
Lender be responsible for the failure of any other Lender to make available any
portion of any Advance.
(h) Swingline Advances and Facility; Repayment of Swingline Advances with
the Proceeds of Revolver A Advances. The Swingline Bank shall, not later than
2:00 p.m., Dallas, Texas time, on the date of any Swingline Advance, deliver to
the Administrative Agent at its address set forth herein, the amount of such
Swingline Advance in immediately available funds in accordance
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with the Administrative Agent's instructions. Prior to 2:30 p.m., Dallas, Texas
time, on the date of any Swingline Advance, the Administrative Agent shall,
subject to the conditions set forth in Article IV hereof, disburse the amount
made available to the Administrative Agent by the Swingline Bank by (i)
transferring such amounts by wire transfer pursuant to the Borrower's
instruction or (ii) in the absence of such instructions, crediting such amounts
to the account of the Borrower maintained with the Administrative Agent.
Forthwith upon demand by the Swingline Bank at any time, including after a
Default or Event of Default, and in any event upon the making of the direction
specified by Section 9.02 hereof to authorize the Administrative Agent to
declare the Obligations due and payable pursuant to the provisions of Section
9.02 hereof, each Lender, notwithstanding (i) the failure of the Borrower at
such time to satisfy each condition specified in Article IV hereof or (ii) any
reduction in the Revolver A Commitment, shall make by 12:00 noon (Dallas, Texas
time) on the first Business Day following receipt by such Lender of notice from
the Swingline Bank, a Revolver A Advance which is a Base Rate Advance in an
amount equal to the product of (i) the Revolver A Specified Percentage of such
Lender times (ii) the aggregate outstanding principal amount of the Swingline
Advances (a "Mandatory Borrowing"). The proceeds of such Revolver A Advances
shall be applied by the Administrative Agent to repay the outstanding Swingline
Advances. Each Lender hereby irrevocably agrees to make a Revolver A Advance
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not
comply with any minimum amount for Borrowings otherwise required hereunder, (ii)
whether any conditions specified in Article IV hereof are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) the date of such
Mandatory Borrowing and (v) the aggregate amount of the Revolver A Commitment at
such time.
If any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), each Lender hereby agrees that it shall forthwith purchase (as of the
date on which the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) from the Swingline Bank such participations in the
outstanding Swingline Advances as shall be necessary to cause the Lenders to
share in such Swingline Advances ratably based upon its Revolver A Specified
Percentage of the Revolver A Commitment (determined before giving effect to any
termination of the Revolver A Commitment); provided that (i) all interest
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payable on the Swingline Advance shall be for the account of the Swingline Bank
until the date as of which the respective participation is required to be
purchased and, to the extent attributable to the purchased participation, shall
be payable to the participating Lender from and after such date and (ii) at the
time any purchase of participations pursuant to this sentence is actually made,
the purchasing Lender shall be required to pay the Swingline Bank interest on
the principal amount of the participation purchased for each day from and
including the day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the
overnight Federal Funds Rate for the first five days and at the rate otherwise
applicable to Revolver A Advances hereunder for each day thereafter.
(i) Indemnification. The Borrower shall indemnify each Lender against any
Consequential Loss incurred by each Lender as a result of (i) any failure to
fulfill, on or before the date specified for an Advance, the conditions to the
Advance set forth herein (including a Refinancing Advance) or (ii) the
Borrower's requesting that an Advance (including a Refinancing Advance) not be
made on the date specified in the Borrowing Notice.
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2.03. Evidence of Debt for Borrowed Money.
(a) The Advances made by each Lender under the Revolver A Loan shall be
evidenced by a Revolver A Note in the amount of such Lender's Revolver A
Specified Percentage of the Revolver A Commitment in effect on the Closing Date.
(b) The Advances made by each Lender under the Revolver B Loan shall be
evidenced by a Revolver B Note in the amount of such Lender's Revolver B
Specified Percentage of the Revolver B Commitment in effect on the Closing Date.
(c) The Advances made by each Lender under the Working Line Loan shall be
evidenced by a Working Line Note in the amount of such Lender's Working Line
Specified Percentage of the Working Line Commitment in effect on the Closing
Date.
(d) The Swingline Advances made by the Swingline Bank shall be evidenced by
a Swingline Note in the amount of $25,000,000.
(e) Administrative Agent's and each Lender's records shall be presumptive
evidence as to amounts owed Administrative Agent and such Lender under the Notes
and this Agreement.
2.04. Optional Prepayments.
(a) The Borrower may, upon at least two Business Days prior written notice
to Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, prepay the outstanding principal amount of any Advances in
whole or in part, together with accrued interest to the date of such prepayment
on the principal amount of LIBOR Advances prepaid without premium or penalty
other than any Consequential Loss; provided, however, that in the case of a
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prepayment of a Base Advance, the notice of prepayment may be given by telephone
by 12:00 p.m. central standard time on the date of prepayment. Each partial
prepayment shall, in the case of Base Advances under the Loans, be in an
aggregate principal amount of not less than $100,000 or a larger integral
multiple of $50,000 in excess thereof and, in the case of LIBOR Advances under
the Loans, be in an aggregate principal amount of not less than $500,000 or a
larger integral multiple of $100,000 in excess thereof. If any notice of
prepayment is given, the principal amount stated therein, together with accrued
interest on the amount of LIBOR Advances prepaid and the amount, if any, due
under Section 2.12 and Section 2.14 hereof, shall be due and payable on the date
specified in such notice unless the Borrower revokes its notice, provided that,
if the Borrower revokes its notice of prepayment prior to such date specified,
the Borrower shall reimburse the Administrative Agent for the account of all
Lenders for all Consequential Losses suffered by each Lender as a result of the
Borrower's failure to prepay. A certificate of each Lender claiming
compensation under this Section 2.04(a), setting forth in reasonable detail the
calculation of the additional amount or amounts to be paid to it hereunder shall
be presumptive evidence of the validity of such claim.
(b) The application of prepayments made under this Section 2.04 as between
the Swingline Loan, the Revolver A Loan, the Revolver B Loan and the Working
Line Loan shall be determined in accordance with the provisions of Section
2.13(f) hereof. All prepayments made pursuant to this Section 2.04 (other than
to the Swingline Loan) shall be first applied to Base
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Advances then to LIBOR Advances, all without premium or penalty, except the
Borrower must pay together with any such prepayments, any Consequential Losses.
After (i) the Conversion Date, and (ii) the Option Date (if the Borrower and the
SuperMajority Lenders did not agree to an Extension Option), Working Line
Advances prepaid hereunder may not be reborrowed.
2.05. Mandatory Prepayments.
(a) Asset Sales and Investments. To the extent that the Borrower or any of
the Restricted Subsidiaries consummates any Disposition of any asset or any of
its Properties except (i) Dispositions consummated in accordance with the terms
of Section 8.05(a)(i) hereof and (ii) if there exists no Default or Event of
Default both before and after giving effect to any such Disposition,
Dispositions consummated in accordance with the other terms and provisions of
Section 8.05(a) hereof (other than Section 8.05(a)(i) hereof), then the Borrower
shall immediately use or cause to be used 100% of the Net Proceeds of any such
transaction received by or allocated to the Borrower or such Restricted
Subsidiary as the case may be, to repay the Obligations under the Loans except
to the extent that such Net Proceeds are ultimately reinvested within a 12 month
period after any such asset Disposition, in assets used in the
Telecommunications Business, including, without limitation, the internet,
internet protocol, web hosting or electronic commerce of the Borrower or any of
the Wholly Owned Restricted Subsidiaries, acquisitions permitted under Section
8.18 hereof or Investments permitted under Section 8.04 hereof.
(b) Mandatory Prepayments, Generally. The application of prepayments made
under this Section 2.05 as between the Swingline Loan, the Revolver A Loan, the
Revolver B Loan and the Working Line Loan shall be determined in accordance with
the provisions of Section 2.13(f) hereof. All prepayments made pursuant to this
Section 2.05 (other than to the Swingline Loan) shall be first applied to Base
Advances then to LIBOR Advances, all without premium or penalty, except the
Borrower must pay together with such prepayments, any accrued interest on LIBOR
Advances repaid by such prepayments and any Consequential Losses. After (i) the
Conversion Date, and (ii) the Option Date (if the Borrower and the SuperMajority
Lenders did not agree to an Extension Option), Working Line Advances prepaid
hereunder may not be reborrowed.
2.06. Repayment.
(a) LIBOR Advances. The principal amount of each LIBOR Advance is due and
payable on the last day of the applicable Interest Period, which principal
payment may be made by means of a Refinancing Advance in accordance with the
terms of Section 2.09 hereof (and subject to the other provisions of this
Agreement).
(b) Commitment Reduction. On the date of a reduction of any of the
Commitments pursuant to Section 2.11 hereof, the aggregate amount of outstanding
(i) Revolver A Advances in excess of the Revolver A Commitment as reduced, (ii)
Revolver B Advances in excess of the Revolver B Commitment as reduced, and (iii)
prior to the Conversion Date, Working Line Advances in excess of the Working
Line Commitment shall in each case be immediately due and payable. Each such
principal repayments may not be made by means of Refinancing Advances.
(c) Option Date and Extension Final Maturity. The aggregate outstanding
amount of the Working Line Advances shall be due and payable in full on the
Option Date, provided that, notwithstanding the foregoing, on the Option Date if
the Borrower and the SuperMajority Lenders
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have agreed to an Extension Option in accordance with the terms of Section 2.16
hereof, then such extended portion of the Working Line Loan shall be due and
payable in full on the Extension Final Maturity. Any portion of the Working Line
Loan not extended in accordance with the terms of Section 2.16(a) hereof shall
be due and payable on the Option Date.
(d) Conversion Date. If the Borrower and the Lenders have agreed to an
Extension Option, the aggregate outstanding amount of the Working Line Advances
shall be due and payable in full on the Extension Final Maturity, provided that,
notwithstanding the foregoing, on the Extension Final Maturity, if the Borrower
and the Lenders have agreed to a Conversion Option, then the Working Line Loan
shall be due and payable in full on the Maturity Date.
(e) Maturity Date. All outstanding Advances under the Loans (other than
the Working Line Loan) and all other Obligations shall be due and payable in
full on the Maturity Date.
(f) Repayments, Generally. All outstanding Advances (other than Advances
under the Working Line Loan) and other Obligations shall be due and payable in
full on the Maturity Date. Any repayments made pursuant to this Section shall be
without premium or penalty, except the Borrower must pay together with any such
prepayments, any Consequential Losses. The application of all repayments as
between Loans under this Section 2.06 shall be determined in accordance with the
terms of Section 2.13(f). Except for the Swingline Loan, repayment of Advances
shall be applied to Base Advances first, and then to LIBOR Advances. After (i)
the Conversion Date, and (ii) the Option Date (if the Borrower and the
SuperMajority Lenders did not agree to an Extension Option), Working Line
Advances prepaid hereunder may not be reborrowed.
2.07. Interest.
(a) Revolver A Advances, Working Line Advances and Revolver B Advances.
Subject to Section 2.08 and Section 11.08 hereof, the Borrower shall pay
interest on the unpaid principal amount of each Advance except Swingline
Advances from the date of such Advance until such principal shall be paid in
full, at either the Base Rate or the LIBOR Rate, as set forth in subsection (i)
or (ii) below, as selected by the Borrower in accordance with Section 2.02
hereof and as follows:
(i) Base Advances. Base Advances shall bear interest at a rate per
annum equal to the Base Rate as in effect from time to time. If the amount
of interest payable in respect of any interest computation period is
reduced to the Highest Lawful Rate and the amount of interest payable in
respect of any subsequent interest computation period would be less than
the Maximum Amount, then the amount of interest payable in respect of such
subsequent interest computation period shall be automatically increased to
the Maximum Amount; provided that at no time shall the aggregate amount by
--------
which interest paid has been increased pursuant to this sentence exceed the
aggregate amount by which interest has been reduced pursuant to this
sentence.
(ii) LIBOR Advances. LIBOR Advances shall bear interest at the rate
per annum equal to the LIBOR Rate applicable to such Advance.
(iii) Payment Dates. Accrued and unpaid interest on Base Advances
shall be paid quarterly in arrears on each Quarterly Date and on the
Maturity Date. Accrued and unpaid interest in respect of each LIBOR
Advance shall be paid on the last day of the appropriate
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Interest Period, on the Maturity Date and on the date of any prepayment or
repayment of such Advance; provided, however, that if any Interest Period
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for a LIBOR Advance exceeds three months, interest shall also be paid on
the date which falls three months after the beginning of such Interest
Period and each three months thereafter until such Interest Period expires.
(b) Swingline Advances. The Borrower shall pay interest on the outstanding
principal amount of such Swingline Advance, from the date such Swingline Advance
is made until it is due (whether at maturity, by reason of acceleration or
otherwise) and repaid, at an interest rate per annum equal to a fixed money
market interest rate (plus the Applicable Margin for LIBOR Advances) quoted by
the Swingline Bank and agreed to by the Borrower for such Swingline Advance, but
in no event higher than the Highest Lawful Rate. Accrued and unpaid interest
on Swingline Advances shall be paid quarterly in arrears on each Quarterly Date
and on the Maturity Date.
2.08. Default Interest. During the continuation of any Event of
Default, the Borrower shall pay, on demand, interest (after as well as before
judgment to the extent permitted by Law) on the principal amount of all Advances
outstanding and on all other Obligations due and unpaid hereunder at a per annum
rate equal to (a) until, for each LIBOR Advance in existence at such time, the
expiration of the applicable Interest Period relating to such LIBOR Advance, the
lesser of (i) the Highest Lawful Rate and (ii) the applicable LIBOR Rate for
such LIBOR Advance plus 2% and (b) for each Base Advance, the lesser of the (i)
the Highest Lawful Rate and (ii) the Base Rate plus 2%. LIBOR Advances shall not
be available for selection by the Borrower during the continuance of an Event of
Default.
2.09. Continuation and Conversion Elections.
(a) The Borrower may upon irrevocable written notice to Administrative
Agent and subject to the terms of this Agreement:
(i) elect to convert, on any Business Day, all or any portion of
outstanding Advances which are Base Advances (in an aggregate amount not
less than $500,000 or an integral multiple of $100,000 in excess thereof)
into LIBOR Advances; or
(ii) elect to convert at the end of any Interest Period therefor,
all or any portion of outstanding Advances which are LIBOR Advances
comprised in the same Borrowing (in an aggregate amount not less than
$100,000 or an integral multiple of $50,000 in excess thereof) into Base
Advances; or
(iii) elect to continue, at the end of any Interest Period
therefor, any Advances which are LIBOR Advances;
provided, however, that if the aggregate amount of outstanding LIBOR Advances
- -------- -------
comprised in the same Borrowing shall have been reduced as a result of any
payment, prepayment or conversion of part thereof to an amount less than
$500,000, the LIBOR Advances comprised in such Borrowing shall automatically
convert into Base Advances at the end of each respective Interest Period.
(b) The Borrower shall deliver a notice of conversion or continuation (a
"Conversion or Continuation Notice"), in substantially the form of Exhibit G
---------
hereto, to Administrative Agent not
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later than (i) 12:00 p.m. central standard time three Business Days prior to the
proposed date of conversion or continuation, if the Advances (or any portion of
either thereof) are to be converted into or continued as LIBOR Advances; and
(ii) 12:00 p.m. central standard time on the Business Day of the proposed
conversion, if the Advances (or any portion thereof) are to be converted into
Base Advances.
Each such Conversion or Continuation Notice shall be by telecopy or
telephone, promptly confirmed by letter, specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Advances to be converted or
continued, and whether the Advances are Revolver A Advances, Revolver B
Advances or Working Line Advances;
(iii) the nature of the proposed conversion or continuation; and
(iv) the duration of the applicable Interest Period.
(c) If, upon the expiration of any Interest Period applicable to LIBOR
Advances, the Borrower shall have failed to select a new Interest Period to be
applicable to such LIBOR Advances or if an Event of Default shall then have
occurred and be continuing, the Borrower shall be deemed to have elected to
convert such LIBOR Advances into Base Advances effective as of the expiration
date of such current Interest Period.
(d) Notwithstanding any other provision contained in this Agreement, after
giving effect to any conversion or continuation of any Advances, there shall not
be outstanding Advances with more than seven different Interest Periods.
2.10. Fees.
(a) Commitment Fees.
(i) Revolver A Commitment Fee. Subject to Section 11.08 hereof, the
Borrower shall pay to Administrative Agent for the account of Lenders pro
rata in accordance with each Lender's Revolver A Specified Percentage, a
commitment fee equal to the sum of the Applicable Commitment Fee Percentage
per annum on the average daily amount of the difference between the
Revolver A Commitment and the sum of (A) all outstanding Revolver A
Advances and all outstanding Swingline Advances and (B) the face amount of
all outstanding Letters of Credit (the "Revolver A Commitment Fee").
(ii) Working Line Commitment Fee. Subject to Section 11.08 hereof,
the Borrower shall pay to Administrative Agent for the account of Lenders
pro rata in accordance with each Lender's Working Line Specified
Percentage, a commitment fee equal to the sum of the Applicable Commitment
Fee Percentage per annum on the average daily amount of the difference
between the Working Line Commitment and the sum of all outstanding Working
Line Advances (the "Working Line Commitment Fee").
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(iii) Revolver B Commitment Fee. Subject to Section 11.08 hereof,
the Borrower shall pay to Administrative Agent for the account of Lenders
pro rata in accordance with each Lender's Revolver B Specified Percentage,
a commitment fee equal to the sum of the Applicable Commitment Fee
Percentage per annum on the average daily amount of the difference between
the Revolver B Commitment and the sum of all outstanding Revolver B
Advances (the "Revolver B Commitment Fee").
(iv) Commitment Fees, Generally. Each Commitment Fee set forth in
subsections (i) through (iii) above shall be payable in arrears on each
Quarterly Date commencing with the first Quarterly Date after the Closing
Date, and continuing until the Maturity Date.
(b) Other Fees. Borrower shall pay to Administrative Agent and the Lenders
such other fees as set forth in any Fee Letter addressed to the Administrative
Agent or any Lender.
2.11. Reduction of Commitments.
(a) Mandatory Termination of the Revolver A Commitment and the Revolver B
Commitment. The Revolver A Commitment and the Revolver B Commitment shall both
automatically be reduced to zero and terminate on the Maturity Date.
(b) Mandatory Reduction of Commitment Due to Asset Sales. The Commitment
shall be reduced immediately and automatically in an amount equal to any amount
that would be required by Section 2.05(a) hereof to prepay the Loans (regardless
of whether there are any outstanding Obligations under the Loans) as a result
of any Dispositions of assets and Properties of the Borrower or any of the
Restricted Subsidiaries (this provision in and of itself not constituting
permission to effectuate any asset Dispositions), provided that (i) so long as
there exists no Event of Default both immediately before and after giving effect
to such asset Dispositions and both immediately before and after any permitted
reinvestment and (ii) if a Default exists after giving effect to any such
Disposition, so long as such Default does not ultimately become an Event of
Default, the Commitment shall not be automatically and immediately reduced if
the Borrower in good faith intends to reinvest, and such proceeds are ultimately
reinvested within a 12 month period after any such asset Disposition, in assets
used in the Telecommunications Business, including, without limitation, the
internet, internet protocol, web hosting or electronic commerce of the Borrower
or any of the Wholly Owned Restricted Subsidiaries, acquisitions permitted under
Section 8.18 hereof or Investments permitted under Section 8.04 hereof.
(c) Option Date or Extension Final Maturity. (i) If the Borrower and the
SuperMajority Lenders have not agreed to extend the Working Line Loan final
maturity in accordance with the Extension Option and the Borrower has not
exercised the Conversion Option in accordance with the terms of Section 2.16,
then the Working Line Commitment shall automatically be reduced to zero on the
Option Date. (ii) If the Borrower and the SuperMajority Lenders exercised the
Extension Option, then the Working Line Commitment shall automatically be
reduced to zero on the Extension Final Maturity.
(d) Specified Change of Control. If any Specified Change of Control shall
have occurred and such Specified Change of Control has caused a Repayment Event
with respect to any of the Existing Financing or any Debt for Borrowed Money in
excess of $25,000,000, each of the Revolver A Commitment, the Revolver B
Commitment, the Swingline Commitment and the Working Line Commitment shall
immediately and automatically be reduced to zero.
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(e) Voluntary Commitment Reductions. The Borrower may from time to time,
upon notice to Administrative Agent not later than 1:00 p.m., three Business
Days in advance, terminate in whole or reduce in part the Commitment, as
designated by the Borrower; provided, however, that the Borrower shall pay the
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accrued interest and the applicable accrued Commitment Fee on the amount of such
reduction and all amounts due, and any partial reduction shall be in an
aggregate amount which is an integral multiple of $5,000,000.
(f) Commitment Reduction and Repayments, Generally. Application of both
voluntary and mandatory reductions of the Commitments as between the Revolver A
Commitment, the Working Line Commitment and the Revolver B Commitment shall be
determined in accordance with the terms of Section 2.13(f) hereof. To the extent
outstanding Revolver A Advances exceed the Revolver A Commitment after any
reduction thereof, the Borrower shall repay, on the date of such reduction, any
such excess amount and all accrued interest thereon, the applicable Revolver A
Commitment Fee on the amount of such reduction and all amounts due. To the
extent outstanding Revolver B Advances exceed the Revolver B Commitment after
any reduction thereof, the Borrower shall repay, on the date of such reduction,
any such excess amount and all accrued interest thereon, the applicable Revolver
B Commitment Fee on the amount of such reduction and all amounts due. Prior to
the Conversion Date, to the extent outstanding Working Line Advances exceed the
Working Line Commitment after any reduction thereof, the Borrower shall repay,
on the date of such reduction, any such excess amount and all accrued interest
thereon, the applicable Working Line Commitment Fee on the amount of such
reduction and all amounts due. Once reduced or terminated, none of the Revolver
A Commitment, the Working Line Commitment or the Revolver B Commitment may be
increased or reinstated. No reduction of the Commitment, either voluntary or
mandatory shall relieve or alter the mandatory reduction and termination of the
Revolver A Commitment, the Working Line Commitment and the Revolver B Commitment
pursuant to this Section 2.11.
2.12. Funding Losses. The Borrower may prepay the outstanding
principal balance of any Advance, in full at any time or in part from time to
time in accordance with the terms of Section 2.04 hereof, provided, that as a
--------
condition precedent to the Borrower's right to make, and any Lender's obligation
to accept, any such prepayment, each such prepayment shall be in the amount of
100% of the principal amount to be prepaid, plus, with respect to LIBOR
Advances, accrued unpaid interest thereon to the date of prepayment, plus any
other sums which have become due to Administrative Agent and Lenders under the
Loan Papers on or before the prepayment date but have not been paid, plus
(subject to Section 11.08 hereof) any Consequential Loss.
The Borrower agrees that each Lender is not obligated to actually reinvest
the amount prepaid in any specific obligation as a condition to receiving any
Consequential Loss, or otherwise.
2.13. Computations and Manner of Payments.
(a) The Borrower shall make each payment hereunder and under the other Loan
Papers not later than 1:00 p.m. on the day when due in same day funds (by wire
transfer or otherwise) to Administrative Agent, for the account of Lenders
unless otherwise specifically provided herein, at Administrative Agent's office
at NationsBank Plaza, 901 Main Street, Dallas, Texas 75202, referencing Qwest
Communications International Inc. No later than the end of each day when each
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<PAGE>
payment hereunder is made, the Borrower shall notify Loan Operations at (214)
508-9192 or such other Person as Administrative Agent may from time to time
specify.
(b) Unless Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due hereunder that the
Borrower will not make payment in full, Administrative Agent may assume that
such payment is so made on such date and may, in reliance upon such assumption,
make distributions to Lenders. If and to the extent the Borrower shall not have
made such payment in full, each Lender shall repay to Administrative Agent
forthwith on demand the applicable amount distributed, together with interest
thereon at the Federal Funds Rate, from the date of distribution until the date
of repayment. The Borrower hereby authorizes each Lender, if and to the extent
payment is not made when due hereunder, to charge the amount so due against any
account of the Borrower with such Lender.
(c) Subject to Section 11.08 hereof, interest on LIBOR Advances under the
Loan Papers shall be calculated on the basis of actual days elapsed but computed
as if each year consisted of 360 days. Subject to Section 11.08 hereof,
interest on Base Advances, the Commitment Fee and other amounts due under the
Loan Papers shall be calculated on the basis of actual days elapsed but computed
as if each year consisted of 365 or 366 days, as applicable. Such computations
shall be made including the first day but excluding the last day occurring in
the period for which such interest, payment or Commitment Fee is payable. Each
determination by Administrative Agent or a Lender of an interest rate, fee or
commission hereunder shall be presumptive evidence of the validity of such
claim. All payments under the Loan Papers shall be made in United States
dollars, and without setoff, counterclaim, or other defense.
(d) Whenever any payment to be made hereunder or under any other Loan
Papers shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest or fees, if applicable;
provided, however, if such extension would cause payment of interest on or
- -------- -------
principal of LIBOR Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Reference to any particular index or reference rate for determining any
applicable interest rate under this Agreement is for purposes of calculating the
interest due and is not intended as and shall not be construed as requiring any
Lender to actually obtain funds for any Advance at any particular index or
reference rate.
(f) Notwithstanding anything to the contrary herein or in any Loan Paper,
to the extent the Borrower makes any voluntary prepayment, or voluntary
reduction of the Commitment under Section 2.04 or 2.11 hereof, or any mandatory
prepayment, or mandatory reduction of the Commitment under Section 2.05 or 2.11
hereof, then such reduction of Commitment or such prepayment shall be applied as
follows:
(i) So Long as there Exists No Payment Default or Event of Default.
(A) Repayments and Prepayments. So long as there exists no
Default under Section 9.01(a) hereof or any Event of Default, all voluntary
and mandatory repayments and prepayments shall be applied as directed by
the Borrower, and in the absence of direction by the Borrower, shall be
deemed to repay and prepay (1) the
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Swingline Advances until all the outstandings under the Swingline
Loan have been paid in full, (2) the Revolver B Advances until all
the outstandings under the Revolver B Loan have been repaid in
full, then (3) (only if the date such payment is received is prior
to the Conversion Date), the Working Line Loan until all the
outstandings under the Working Line Loan have been repaid in full,
then (4) the Revolver A Loan until all the outstandings under the
Revolver A Loan have been repaid in full, then (5) (only is the
date such payment is received is after the Conversion Date), the
Working Line Loan, until all outstandings under the Working Line
loan have been repaid in full, and then (6) all remaining
outstanding and unpaid Obligations; and
(B) Commitment Reductions. So long as there exists no Default
under Section 9.01(a) hereof or any Event of Default, all voluntary
and mandatory Commitment reductions shall be applied as directed by
the Borrower, and in the absence of direction by the Borrower,
shall be deemed to reduce, respectively, (1) the Revolver B
Commitment until the Revolver B Commitment has been reduced to
zero, then (2) if prior to the Conversion Date, the Working Line
Commitment until the Working Line Commitment has been reduced to
zero, then (3) the Revolver A Commitment until the Revolver A
Commitment has been reduced to zero.
(ii) During the Existence of a Payment Default or Event of Default.
(A) Repayments and Prepayments. So long as there exists a
Default under Section 9.01(a) hereof or any Event of Default, all
mandatory and voluntary prepayments shall be applied to first to
Advances outstanding under the Swingline Loan, and secondly to the
Revolver B Loan, the Revolver A Loan and the Working Line Loan, pro
rata, until the Advances outstanding under each of the Revolver B
Loan, the Revolver A Loan and the Working Line Loan have been
repaid in full, and then to all remaining outstanding Obligations.
(B) Commitment Reductions. So long as there exists a Default
under Section 9.01(a) hereof or any Event of Default, all mandatory
and voluntary Commitment reductions shall be applied to the
Revolver A Commitment, the Revolver B Commitment and, if prior to
the Conversion Date to the Working Line Commitment, pro rata.
(g) At all times prior to the Lenders making a Revolver A Advance
pursuant to Section 2.02(h) hereof, the Administrative Agent shall distribute
all payments in respect of the Swingline Advances to the Swingline Bank. At such
time, if any, that the Lenders make a Revolver A Advance pursuant to Section
2.02(h) hereof, the Administrative Agent shall distribute all payments in
respect of the Swingline Advances to the Lenders in accordance with the
respective Revolver A Specified Percentages.
2.14. Yield Protection; Changed Circumstances.
(a) If any Lender determines that either (i) the adoption of any
Applicable Law, rule, regulation or guideline regarding capital adequacy and
applicable to commercial banks or financial institutions generally or any change
therein, or any change, after the date hereof, in the interpretation
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or administration thereof by any Tribunal, central bank or comparable agency
charged with the interpretation or administration thereof, or (ii) compliance by
any Lender (or Lending Office of any Lender) with any request or directive
applicable to commercial banks or financial institutions generally regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency has the effect of reducing the rate of return
on such Lender's capital as a consequence of its obligations hereunder to a
level below that which such Lender could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's policies with
respect to capital adequacy) by an amount reasonably deemed by such Lender to be
material, then from time to time, within fifteen days after demand by such
Lender, the Borrower shall pay to such Lender such additional amount or amounts
as will adequately compensate such Lender for such reduction. Each Lender will
notify the Borrower of any event occurring after the date of this Agreement
which will entitle such Lender to compensation pursuant to this Section 2.14(a)
as promptly as practicable after such Lender obtains actual knowledge of such
event; provided, no Lender shall be liable for its failure or the failure of any
--------
other Lender to provide such notification. A certificate of such Lender claiming
compensation under this Section 2.14(a), setting forth in reasonable detail the
calculation of the additional amount or amounts to be paid to it hereunder shall
be presumptive evidence of the validity of such claim. If such Lender demands
compensation under this Section 2.14(a), the Borrower may at any time, on at
least five Business Days' prior notice to such Lender (i) repay in full the then
outstanding principal amount of LIBOR Advances, of such Lender, together with
accrued interest thereon, or (ii) convert the LIBOR Advances to Base Advances in
accordance with the provisions of this Agreement; provided, however, that the
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Borrower shall be liable for the Consequential Loss arising pursuant to those
actions.
(b) If, after the date hereof, any Tribunal, central bank or other
comparable authority, at any time imposes, modifies or deems applicable any
reserve (including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit or similar requirement against
assets of, deposits with or for the amount of, or credit extended by, any
Lender, or imposes on any Lender any other condition affecting a LIBOR Advance,
the Notes, or its obligation to make a LIBOR Advance, or imposes on any Lender
any other condition affecting a Letter of Credit; and the result of any of the
foregoing is to increase the cost to such Lender of making or maintaining its
Letter of Credit, LIBOR Advances, or to reduce the amount of any sum received or
receivable by such Lender under this Agreement or under the Notes, the Letters
of Credit or reimbursement obligations by an amount deemed by such Lender, to be
material, then, within five days after demand by such Lender, the Borrower shall
----
pay to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction. Each Lender will (i) notify the
Borrower of any event occurring after the date of this Agreement that entitles
such Lender to compensation pursuant to this Section 2.14(b), as promptly as
practicable after such Lender obtains actual knowledge of the event; provided,
--------
no Lender shall be liable for its failure or the failure of any other Lender to
provide such notification and (ii) use good faith and reasonable efforts to
designate a different Lending Office for LIBOR Advances, of such Lender if the
designation will avoid the need for, or reduce the amount of, the compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender. A certificate of such Lender claiming compensation under this Section
2.14(b), setting forth in reasonable detail the computation of the additional
amount or amounts to be paid to it hereunder shall be presumptive evidence of
the validity of such claim. If such Lender demands compensation under this
Section 2.14(b), the Borrower may at any time, on at least five Business Days'
prior notice to such Lender (i) repay in full the then outstanding principal
amount of LIBOR Advances, of such Lender, together with
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accrued interest thereon, or (ii) convert the LIBOR Advances to Base Advances in
accordance with the provisions of this Agreement; provided, however, that the
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Borrower shall be liable for the Consequential Loss arising pursuant to those
actions.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation or administration of
any Law shall make it unlawful, or any central bank or other Tribunal shall
assert that it is unlawful, for a Lender to perform its obligations hereunder to
issue or maintain Letters of Credit, make LIBOR Advances or to continue to fund
or maintain LIBOR Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower, (i) each LIBOR Advance will
automatically, upon such demand, convert into a Base Advance, (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended until such Lender notifies Administrative Agent and the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist, and (iii) the obligation of such Lender to make or
maintain Letters of Credit shall be suspended until such Lender notifies
Administrative Agent and the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.
(d) Upon the occurrence and during the continuance of any Default or Event
of Default, (i) each LIBOR Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of each Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended.
(e) If any Lender notifies Administrative Agent that the LIBOR Rate for any
Interest Period for any LIBOR Advances will not adequately reflect the cost to
such Lender of making, funding or maintaining LIBOR Advances for such Interest
Period, Administrative Agent shall promptly so notify the Borrower, whereupon
(i) each such LIBOR Advance will automatically, on the last day of the then
existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended until such Lender notifies Administrative Agent that such
Lender has determined that the circumstances causing such suspension no longer
exist and Administrative Agent notifies the Borrower of such fact.
(f) Failure on the part of any Lender to demand compensation for any
increased costs, increased capital or reduction in amounts received or
receivable or reduction in return on capital pursuant to this Section 2.14 with
respect to any period shall not constitute a waiver of any Lender's right to
demand compensation with respect to such period or any other period, subject,
however, to the limitations set forth in this Section 2.14.
(g) The obligations of the Borrower under this Section 2.14 shall survive
any termination of this Agreement, provided that, in no event shall the Borrower
be required to make a payment under this Section 2.14 with respect to any event
of which the Lender making such claim had knowledge more than 12 months prior to
demand for such payment.
(h) Determinations by Lenders for purposes of this Section 2.14 shall be
presumptively correct. Any certificate delivered to the Borrower by a Lender
pursuant to this Section 2.14 shall include in reasonable detail the basis for
such Lender's demand for additional compensation and a certification that the
claim for compensation is consistent with such Lender's treatment of similar
customers having similar provisions generally in their agreements with such
Lender.
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(i) Notwithstanding any other provision of this Agreement, no Lender not
organized under the Laws of the United States or any State (or which has a Bank
Affiliate not organized under the Laws of the United States or any State) shall
be entitled to compensation pursuant to this Section 2.14 with respect to any
amount which would otherwise be due under this Section 2.14 but which is the
result of an act of a Tribunal of the country in which such Lender or Bank
Affiliate is organized.
2.15. Use of Proceeds.
(a) Revolver A Advances and Swingline Advances. The Borrower agrees to use
the proceeds of the Revolver A Loan and the Swingline Facility exclusively to
(i) finance working capital, (ii) refinance certain permitted indebtedness on
the Closing Date, (iii) finance acquisitions permitted under Section 8.18
hereof, (iv) finance Capital Expenditures and (v) for other general corporate
purposes of the Borrower.
(b) Working Line Advances and Revolver B Advances. The Borrower agrees to
use the proceeds of the Working Line Loan and the Revolver B Loan exclusively
to:
(i) Prior to such time as the Senior Unsecured Debt Rating is BBB-
or Baa3 or better and the Conditional Early Release Unlimited Guaranty
has been released in accordance with the terms of Section 11.14
hereof:
In accordance with certain of the Existing Financing
Documentation, finance or refinance all or any part of the cost of,
the construction, installation, acquisition or improvement by the
Borrower or any Restricted Subsidiary (as defined in the Existing
Financing Documentation) of the Borrower of any new
"Telecommunications Assets" (as defined below) constructed, installed,
acquired or improved after March 31, 1997, provided that (i) the
proceeds of such debt are expended for such purposes within a 270 day
period of making such construction, installation, acquisition or
improvement, and (ii) the amount of such debt does not exceed 100% of
the cost of the construction, installation, acquisition or improvement
of the applicable Telecommunications Assets. For purposes of this
paragraph, "Telecommunications Assets" means all assets, rights
(contractual or otherwise) and properties, whether tangible or
intangible, used or intended for use in connection with the business
of (A) transmitting or providing services relating to the transmission
of, voice, data or video through owned or leased transmission
facilities, (B) constructing, creating, developing or marketing
communications related network equipment, software and other devices
for use in a telecommunications business, or (C) evaluating,
participating or pursuing any other activity or opportunity that is
primarily related to those identified in (A) or (B) above, provided
that the determination of what constitutes such businesses shall be
made in good faith by the Board of Directors.
(ii) After the Senior Unsecured Debt Rating is BBB- or Baa3 or better
and the Conditional Early Release Unlimited Guaranty has been released
in accordance with the terms of Section 11.14 hereof:
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(A) finance working capital, (B) refinance certain permitted
indebtedness on the Closing Date, (C) finance acquisitions permitted under
Section 8.18 hereof, (D) finance Capital Expenditures and (E) for other
general corporate purposes of the Borrower.
2.16. Extension Option and Conversion Option Relating to the Working Line
Loan.
(a) Extension Option. On the Option Date, the Borrower, with the
prior written consent of the SuperMajority Lenders and so long as there exists
no Default or Event of Default, may elect to extend the maturity of the Working
Line Loan for an additional 364 day period until the Extension Final Maturity.
Such election must be made no sooner than 60 days prior to the Option Date and
no later than 30 days prior to the Option Date by written notice in accordance
with the terms of Section 11.02 hereof to each Lender of its request to extend
the final maturity of the Working Line Loan. Each Lender shall, no later than 10
Business Days after receipt of such notice, give written notice to the Borrower
and the Administrative Agent of its approval or disapproval of such extension.
Any Lender failing to give such notice shall be deemed to have approved such
extension; but, upon the Option Date, its Working Line Specified Percentage
shall be zero and such Lender shall not be participating in the Working Line
Loan thereafter. Notwithstanding anything herein to the contrary, no Lender
shall be obligated to consent to such extension. If the Borrower fails to
receive the consent of Lenders having Working Line Specified Percentages
totaling 100%, then, if SuperMajority Lenders have consented to such extension
(i) only those consenting Lenders will have Working Line Specified Percentages
in excess of zero, (ii) subject to the terms of Section 2.18 hereof, the Working
Line Commitment shall be reduced by a dollar amount equal to the product of the
non-consenting Lenders' Working Line Specified Percentages times the Working
Line Commitment in effect on the day before the Option Date, (iii) subject to
the terms of Section 2.18 hereof, the Administrative Agent will notify each
Lender of its reallocated Working Line Specified Percentage, the new Working
Line Commitment and the reallocated Total Specified Percentage, (iv) the
Borrower will pay all Consequential Costs incurred as a result of any such
reallocation of Working Line Specified Percentages, (v) subject to the terms of
Section 2.18 hereof, the Borrower shall repay in full all portions of the
Obligations representing such non-consenting Lenders' Working Line Specified
Percentages of all outstanding Working Line Advances to such non-consenting
Lenders, (vi) the Borrower shall execute and deliver new promissory notes to
each extending Lender in the form required by the Administrative Agent and (vii)
subject to satisfaction of each of the foregoing requirements, the Working Line
Loan final maturity shall be automatically extended on the Option Date to the
Extension Final Maturity. If the Borrower receives the consent of Lenders having
Working Line Specified Percentages totaling 100%, then the Working Line Loan
final maturity shall be automatically extended on the Option Date to the
Extension Final Maturity, and each Lender will retain its Working Line Specified
Percentage and the Working Line Commitment shall remain the same.
(b) Conversion Option. On the Option Date, or, if the Borrower and
the Lenders have agreed to extend the Working Line Loan until the Extension
Final Maturity, then the Extension Final Maturity, the Borrower, so long as
there exists no Default or Event of Default on such date of conversion, shall
have the option (which shall not require the consent of any Lender) to convert
the Working Line Loan to a term loan. Such election must be made no sooner than
60 days prior to the Option Date or Extension Final Maturity, as
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applicable, and no later than 30 days prior to the Option Date or Extension
Final Maturity, as applicable, by written notice in accordance with the
terms of Section 11.02 hereof to each Lender of such conversion. Prior to
such conversion, the Borrower shall execute and deliver new promissory
notes to each Lender in the form required by the Administrative Agent. Upon
such notice and receipt by the Lenders of the new promissory notes, the
Working Line Loan shall automatically convert to a term loan on the Option
Date or the Extension Final Maturity, as applicable.
2.17. Rights of Borrower in Respect of Consequential Losses.
(a) Duty to Mitigate. If (i) any Lender shall request compensation
under Section 2.14(a) or (b) hereof or (ii) any Lender delivers a notice
described in Section 2.14(c) or (e) hereof then such Lender shall use reasonable
efforts (which shall not require such Lender to suffer any disadvantage or
burden reasonably deemed by it (in good faith) to be significant, including
without limitation, to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies or
legal or regulatory restrictions), promptly thereafter, (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its Rights and delegate and transfer its obligations hereunder to
another of its offices, branches or Bank Affiliates, if such filing or
assignment would reduce its claims for compensation under Section 2.14(a) or (b)
hereof or enable it to withdraw its notice pursuant to Section 2.14(c) or (e)
hereof, as the case may be, in the future. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
filing or assignment, delegation and transfer.
(b) Replacement of a Lender Upon Request for Compensation. If any Lender
has requested compensation or reimbursement in accordance with the terms of
Section 2.14 hereof and (i) such request is not the result of any uniform
changes in the statutes or regulations for capital adequacy, and (ii) the
Borrower and such Lender are unable to reach a written agreement regarding such
request within 30 days following written notice by such Lender to the Borrower
and the Administrative Agent of such request, then after the expiration of 30
days following the delivery of the notice under Section 2.14 hereof, the
Borrower may replace such Lender in whole with another Lender acceptable to the
Arranging Agents pursuant to an Assignment and Acceptance and in accordance with
Section 11.04 hereof, provided that, such Lender is replaced at par value of all
Obligations owing such Lender plus all accrued interest and fees, provided
further, that Borrower pays the assignment and acceptance fee set forth in
Section 11.04(a) hereof for such replacement. Until such time as any Lender is
replaced by the Borrower, the Borrower shall reimburse or compensate such Lender
in accordance with the terms of Section 2.14 hereof.
2.18. Rights of Borrower in Respect of Failure of any Lender to Fund or
Extend the Option Date. If any Lender shall either (a) breach its agreement to
make any Advance available in accordance with the terms of this Agreement (and
each other Lender shall have made its portion of the Advance available to the
Borrower), or (b) on the Option Date, shall fail to extend the Working Line Loan
for an additional 364 day period in accordance with the terms of Section 2.16(a)
hereof when all such other Lenders have extended, then, in each case, such
Lender shall, promptly upon the written request of the Borrower to such Lender
and the Administrative Agent, assign all of its Rights and duties hereunder and
under the other Loan Papers pursuant to an Assignment and Acceptance in
accordance with the terms of Section 11.04 hereof to another financial
institution or lender designated by the Borrower and acceptable to the Arranging
Agents in accordance with the terms
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of Section 11.04 hereof, provided that, notwithstanding the foregoing, in no
event shall any Lender be required to take any such action if (a) such Lender is
owed any payments by the Borrower pursuant to this Agreement or the other Loan
Papers, (b) there exists any Default or Event of Default.
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit. The Borrower shall give the
Administrative Agent not less than three Business Days prior written notice of a
request for the issuance of a Letter of Credit, and the Administrative Agent
shall promptly notify each Lender of such request. Upon receipt of the
Borrower's properly completed and duly executed Applications, and subject to the
terms of such Applications and to the terms of this Agreement, including,
without limitation, the satisfaction of the conditions set forth in Section 4.02
hereof, the Administrative Agent agrees to issue Letters of Credit on behalf of
the Borrower in an aggregate face amount not in excess of the Letter of Credit
Commitment. No Letter of Credit shall have a maturity extending beyond the
earliest of (i) the Maturity Date, or (ii) one year from the date of its
issuance, or (iii) such earlier date as may be required to enable the Borrower
to satisfy its repayment obligations under Section 2.06 hereof. Subject to such
maturity limitations and so long as no Default or Event of Default has occurred
and is continuing or would result from the renewal of a Letter of Credit, the
Letters of Credit may be renewed by the Administrative Agent in its discretion.
The Lenders shall participate ratably in any liability under the Letters of
Credit (including, without limitation, the Existing Letter of Credit) and in
any unpaid reimbursement obligations of the Borrower with respect to any Letter
of Credit in their Revolver A Specified Percentages. The amount of the Letters
of Credit issued and outstanding and the unpaid reimbursement obligations of the
Borrower for such Letters of Credit shall reduce the amount of Revolver A
Commitment available, so that at no time shall the sum of (i) all outstanding
Revolver A Advances in the aggregate, plus (ii) all outstanding Swingline
Advances in the aggregate, plus (iii) the aggregate face amount of all
outstanding Letters of Credit, plus (iv) (without duplication) all outstanding
reimbursement obligations related to Letters of Credit, exceed the Revolver A
Commitment, and at no time shall the sum of all Revolver A Advances by any
Lender made plus its ratable share of Swingline Advances and amounts available
to be drawn under the Letters of Credit and the unpaid reimbursement obligations
of the Borrower in respect of such Letters of Credit exceed its Revolver A
Specified Percentage of the Revolver A Commitment.
3.02. Letters of Credit Fee. In consideration for the issuance of each
Letter of Credit, the Borrower shall pay to (a) the Administrative Agent for its
sole account, an application and processing fee in the amount of the higher of
(i) $350.00 and (ii) the product of 1/8th of 1% multiplied by the face amount of
such Letter of Credit on each Letter of Credit, due and payable on the date of
issuance of each Letter of Credit, and (b) the Administrative Agent for the
account of the Administrative Agent and the Lenders in accordance with their
Revolver A Specified Percentages, a per annum fee for each Letter of Credit
equal to the higher of (i) $350.00 and (ii) the product of the Applicable Margin
for a LIBOR Advance in effect on the date of calculation multiplied by the face
amount of each such Letter of Credit. Each fee for each Letter of Credit under
subsection (b) above shall be due and payable to the Administrative Agent
quarterly as it accrues, on each Quarterly Date during the term of the Letter of
Credit and on the expiration or renewal and/or extension of each such Letter of
Credit, beginning with the first such Quarterly Date after the issuance of each
Letter of Credit and ending on the expiration date of each such Letter of
Credit.
3.03. Reimbursement Obligations.
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(a) The Borrower hereby agrees to reimburse Administrative Agent
immediately upon demand by Administrative Agent, and in immediately available
funds, for any payment or disbursement made by Administrative Agent under any
Letter of Credit. Payment shall be made by the Borrower with interest on the
amount so paid or disbursed by Administrative Agent from and including the date
payment is made under any Letter of Credit to and including the date of payment,
at the lesser of (i) the Highest Lawful Rate, and (ii) the sum of the Base Rate
in effect from time to time plus 2% per annum; provided, however, that if the
-------- -------
Borrower would be permitted under the terms of Section 2.01, Section 2.02 and
Section 4.02 to borrow Revolver A Advances in amounts at least equal to their
reimbursement obligation for a drawing under any Letter of Credit, a Base
Advance by each Lender, in an amount equal to such Lender's Revolver A Specified
Percentage, shall automatically be deemed made on the date of any such payment
or disbursement made by Administrative Agent in the amount of such obligation
and subject to the terms of this Agreement.
(b) The Borrower hereby also agrees to pay to Administrative Agent
immediately upon demand by Administrative Agent and in immediately available
funds, as security for their reimbursement obligations in respect of the Letters
of Credit under Section 3.03(a) hereof and any other amounts payable hereunder
and under the Notes, an amount equal to the aggregate amount available to be
drawn under Letters of Credit then outstanding, irrespective of whether the
Letters of Credit have been drawn upon, upon an Event of Default. Any such
payments shall be deposited in a separate account designated "Qwest
Communications International Inc. Special Account" or such other designation as
Administrative Agent shall elect. All such amounts deposited with
Administrative Agent shall be and shall remain funds of the Borrower on deposit
with Administrative Agent and may be invested by Administrative Agent as
Administrative Agent shall determine. Such amounts may not be used by
Administrative Agent to pay the drawings under the Letters of Credit; however,
such amounts may be used by Administrative Agent as reimbursement for Letter of
Credit drawings which Administrative Agent has paid. During the existence of an
Event of Default but after the expiration of any Letter of Credit that was not
drawn upon, the Borrower may direct the Administrative Agent to use any cash
collateral for any such expired Letter of Credit, if any, to reduce the amount
of the Obligations. Any amounts remaining in the Qwest Communications
International Inc. Special Account, after the date of the expiration of all
Letters of Credit and after all Obligations have been paid in full, shall be
repaid to the Borrower promptly after such expiration and such payment in full.
(c) The obligations of the Borrower under this Section 3.03 will continue
until all Letters of Credit have expired and all reimbursement obligations with
respect thereto have been paid in full by the Borrower and until all other
Obligations shall have been paid in full.
(d) The Borrower shall be obligated to reimburse Administrative Agent upon
demand for all amounts paid under the Letters of Credit as set forth in Section
3.03(a) hereof; provided, however, if the Borrower for any reason fails to
reimburse Administrative Agent in full upon demand, whether by borrowing
Revolver A Advances to pay such reimbursement obligations or otherwise, the
Lenders shall reimburse Administrative Agent in accordance with each Lender's
Revolver A Specified Percentage for amounts due and unpaid from the Borrower as
set forth in Section 3.04 hereof; provided, however, that no such reimbursement
made by the Lenders shall discharge the Borrower's obligations to reimburse
Administrative Agent.
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(e) The Borrower, as to Letters of Credit issued for its account, shall
indemnify and hold harmless the Administrative Agent, the Lead Arranger, each
Lender and their respective affiliates, officers, directors, employees, agents
and advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and disbursements of counsel) which may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of, or in connection with the preparation for
a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with the Letters of Credit, including without
limitation, any transaction in which any Letter of Credit is being issued and in
connection with actions taken under the Letters of Credit or in connection
therewith, whether or not an Indemnified Party is a party thereto, whether or
not the transactions contemplated herein are consummated, and whether or not
such claim, damage, loss, liability or expense results from the negligence of
such Indemnified Party and except only to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. Borrower will not settle or consent to
judgment with respect to any investigation, litigation, or proceeding without
the prior written consent of the Administrative Agent and any affected
Indemnified Party, unless such settlement or consent includes an unconditional
release of each such Indemnified Party or unless each Indemnified Party is
entitled to be indemnified under this Section 3.03(e) (which entitlement the
Borrower will confirm to such Indemnified Party in writing, if requested). The
Borrower shall periodically, upon request, reimburse each Indemnified Party for
its reasonable legal and other actual expenses (including the cost of any
investigation and preparation) incurred in connection with any indemnified
matter. The reimbursement, indemnity and contribution obligations under this
Section shall be in addition to any liability which the Borrower may otherwise
have, shall extend upon the same terms and conditions to each Indemnified Party,
and shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of the Borrower, the Administrative Agent,
the Lenders and all other Indemnified Party. This Section shall survive any
termination of this Agreement and repayment of the Obligations. If the Borrower
for any reason fails to indemnify or pay Administrative Agent or such
Indemnified Party as set forth herein in full, the Lenders shall indemnify and
pay Administrative Agent upon demand, in accordance with each Lender's Revolver
A Specified Percentage, such amounts due and unpaid from the Borrower. The
provisions of this Section 3.03(e) shall survive the termination of this
Agreement.
3.04. Lenders' Obligations. Each Lender agrees, unconditionally and
irrevocably to reimburse Administrative Agent on demand for such Lender's
Revolver A Specified Percentage of each draw paid by Administrative Agent under
any Letter of Credit that is not reimbursed by the Borrower in accordance with
Section 3.03 hereof. Each Lender specifically acknowledges that the Existing
Letter of Credit which was issued prior to the Closing Date shall be included in
the definition of Letters of Credit and each Lender shall be obligated to the
Administrative Agent with respect thereto on the identical terms and conditions
it is obligated to the Administrative Agent with respect to all of the other
Letters of Credit, provided that Administrative Agent was not aware of any
payment default or event of default under the Existing Letter of Credit on the
Closing Date. All amounts payable by any Lender under this subsection shall
include interest thereon at the Federal Funds Rate, from the date of the
applicable draw to the date of reimbursement by such Lender. No Lender shall be
liable for the performance or nonperformance of the obligations of any other
Lender under this Section. The obligations of the Lenders under this Section
shall continue after the Maturity Date and shall survive termination of any Loan
Papers.
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3.05. Administrative Agent's Obligations.
(a) Administrative Agent makes no representation or warranty, and assumes
no responsibility with respect to the validity, legality, sufficiency or
enforceability of any Application or any document relative thereto or to the
collectibility thereunder. Administrative Agent assumes no responsibility for
the financial condition of the Borrower and its Subsidiaries or for the
performance of any obligation of the Borrower. Administrative Agent may use its
discretion with respect to exercising or refraining from exercising any rights,
or taking or refraining from taking any action which may be vested in it or
which it may be entitled to take or assert with respect to any Letter of Credit
or any Application.
(b) Administrative Agent shall be under no liability to any Lender, with
respect to anything the Administrative Agent may do or refrain from doing in the
exercise of its judgment, the sole liability and responsibility of
Administrative Agent (except as otherwise provided in (c) below) being to handle
each Lender's share on as favorable a basis as Administrative Agent handles its
own share and to promptly remit to each Lender its share of any sums received by
Administrative Agent under any Application. Administrative Agent shall have no
duties or responsibilities except those expressly set forth herein and those
duties and liabilities shall be subject to the limitations and qualifications
set forth herein.
(c) Neither Administrative Agent nor any of its directors, officers, or
employees shall be liable for any action taken or omitted (whether or not such
action taken or omitted is expressly set forth herein) under or in connection
herewith or any other instrument or document in connection herewith, except for
gross negligence or willful misconduct, and no Lender waives its right to
institute legal action against Administrative Agent for wrongful payment of any
Letter of Credit due to Administrative Agent's gross negligence or willful
misconduct. Administrative Agent shall incur no liability to any Lender, the
Borrower or any Affiliate of the Borrower or Lender in acting upon any notice,
document, order, consent, certificate, warrant or other instrument reasonably
believed by Administrative Agent to be genuine or authentic and to be signed by
the proper party.
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to the Initial Advance and the Issuance of
the Initial Letter of Credit. The obligation of each Lender to make the initial
Advance under the Loans, or issue the initial Letter of Credit, is subject to
receipt by the Administrative Agent of each of the following, in form and
substance satisfactory to the Administrative Agent, with a copy (except for the
Notes) for each Lender:
(a) a loan certificate of the Borrower certifying as to the accuracy of
its representations and warranties in the Loan Papers, certifying that no
Default or Event of Default has occurred under the terms of this Agreement, and
including a certificate of incumbency with respect to each Authorized Officer,
and containing a representation that the following items are attached thereto,
and that each of such items remains unchanged and valid, except as shown on the
attachments: (i) copies of the Articles of Incorporation of the Borrower and
each of the Material Subsidiaries, certified to be true, complete and correct by
the secretary of state of each such Person's respective state of incorporation,
(ii) copies of the By-Laws of the Borrower and each of the Material Subsidiaries
and (iii) copies of a certificate of good standing and a certificate of
existence for the Borrower in
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Colorado and each of its Material Subsidiaries' state of incorporation, and
other material states determined by the Borrower.
(b) duly executed Notes by the Borrower, payable to the order of each
Lender, one Revolver A Note in an amount for each Lender equal to its Revolver A
Specified Percentage of the Revolver A Commitment on the Closing Date, one
Working Line Loan Note in an amount for each Lender equal to its Working Line
Loan Specified Percentage of the Working Line Commitment on the Closing Date,
and one Revolver B Note in an amount for each Lender equal to its Revolver B
Specified Percentage of the Revolver B Commitment on the Closing Date;
(c) a loan certificate of the Borrower certifying that a copy of the
resolutions of the Borrower and the Guarantor, authorizing them to execute,
deliver and perform this Agreement, the Notes and the other Loan Papers to which
each of them is a party is attached and is a true and accurate copy;
(d) in form and substance acceptable to the Administrative Agent, duly
executed and completed Conditional Early Release Unlimited Guaranty of the
Obligations by the Guarantor;
(e) copies of all executed Existing Financing Documentation, with a
certificate attached thereto executed by an Authorized Officer of the Borrower
certifying that the attached copies are true and accurate and have not been
amended, waived or consented to except as set forth therein;
(f) all other Loan Papers to be delivered on the Closing Date duly
executed and completed, dated the Closing Date;
(g) opinions addressed to Administrative Agent on behalf of the Lenders of
(i) corporate counsel to the Borrower and each Restricted Subsidiary, to the
extent applicable, with respect to organizational matters, authorization,
execution, etc., (ii) special FCC counsel and/or PUC counsel to the Borrower and
the Restricted Subsidiaries, as applicable, in form reasonably acceptable to the
Arranging Agents, and (iii) corporate counsel to the Borrower and each
Restricted Subsidiary, to the extent applicable, that the execution of this
Agreement and the Loan Papers, the borrowing by the Borrower of the Loans
(including, without limitation, the use of the proceeds of the Loans) and the
performance of all its obligations under the Loan Papers are permitted by the
Existing Financing Documentation and that the Loans are pari passu with the
Existing Financing;
(h) a duly completed Compliance Certificate evidencing no Default or Event
of Default dated as of the Closing Date, and a pro forma compliance certificate
dated the Closing Date demonstrating the Borrower's compliance with each of the
financial covenants contained in Section 8.01 hereof through the Maturity Date,
with supporting projections;
(i) a certificate from the Borrower stating that there has been no
material adverse change in the financial condition, business or operations of
the Borrower and its Subsidiaries since December 31, 1998;
(j) evidence reasonably satisfactory that the Borrower and each of its
Material Subsidiaries has (i) undertaken such review and assessment of its
business and operations as it deems appropriate with respect to Year 2000
Compliance, (ii) developed an appropriate plan and timeline
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for addressing Year 2000 Compliance issues on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable;
(k) repayment of all Debt for Borrowed Money owed by the Borrower and the
Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule
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8.02 hereto or otherwise permitted under Section 8.02 hereof;
- ----
(l) (i) payment to the Administrative Agent, Arranging Agents and Lenders
of all fees due and payable as required in accordance with the terms of any Fee
Letter or other written agreement among the parties, and (ii) reimbursement of
the reasonable costs, fees and expenses (including the reasonable fees and
expenses of Special Counsel) incurred by the Administrative Agent in connection
with the negotiation, preparation and execution of this Agreement, the other
Loan Papers and the making of the initial Loans; and
(m) in form and substance satisfactory to the Arranging Agents, such other
documents, instruments and certificates as the Administrative Agent or any
Arranging Agent may reasonably require in connection with the transactions
contemplated hereby, including without limitation the status, organization or
authority of the Borrower or any Restricted Subsidiary.
4.02. Conditions Precedent to All Advances and Letters of Credit. The
obligation of each Lender to make each Advance hereunder (excluding each
Refinancing Advance), and the obligation of the Administrative Agent to issue
any Letter of Credit shall be subject to the further conditions precedent that
on the date of such Advance or such issuance of such Letter of Credit reasonably
satisfactory to the Arranging Agents:
(a) All of the representations and warranties of the Borrower under this
Agreement shall be true and correct at such time in all material respects, both
before and after giving effect to the application of the proceeds of the Advance
or the issuance of the Letter of Credit, except those representations and
warranties that specifically speak as of a particular date;
(b) The incumbency of the Authorized Officers shall be as stated in the
certificate of incumbency delivered in the Borrower's loan certificate pursuant
to Section 4.01(a) or as subsequently modified and reflected in a certificate of
incumbency delivered to the Administrative Agent. The Administrative Agent may,
without waiving this condition, consider it fulfilled and a representation by
the Borrower made to such effect if no written notice to the contrary, dated on
or before the date of such Advance or the issuance of such Letter of Credit, is
received by the Administrative Agent from the Borrower prior to the making of
such Advance or such Letter of Credit;
(c) There shall not exist a Default or an Event of Default hereunder and
none shall exist as a result of making any such Advance or issuing such Letter
of Credit, and the Administrative Agent shall have received written or
telephonic certification thereof by an Authorized Officer of the Borrower (which
certification, if telephonic, shall be followed promptly by written
certification);
(d) No event shall have occurred that is, or would reasonably expected be
expected to cause, a Material Adverse Change since December 31, 1998;
(e) In the case of each Letter of Credit, Borrower shall have delivered to
the Administrative Agent a duly executed and complete Application acceptable to
Administrative Agent;
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(f) In the case of any Revolver A Advance or Swingline Advance, the sum of
the aggregate outstanding (i) Revolver A Advances plus (ii) Swingline Advances,
in each case after giving effect to such proposed Revolver A Advance or
Swingline Advance, plus (iii) the sum of the face amount of all outstanding
Letters of Credit plus (without duplication) (iv) all reimbursement obligations
under Article III hereof, shall not exceed the Revolver A Commitment;
(g) In the case of any Revolver B Advance, (i) the aggregate outstanding
Revolver B Advances after giving effect to such proposed Revolver B Advance
shall not exceed the Revolver B Commitment, (ii) the Borrower shall represent
and warrant that the use of the proceeds of the Revolver B Advance complies with
Section 2.15(b) hereof (and the delivery of a Borrowing Notice shall constitute
such representation) and (iii) such Revolver B Advance is permitted Debt under
the Existing Financing Documentation, including, without limitation, (I) prior
to the time that the Senior Unsecured Debt Rating is BBB- or Baa3 or better,
Section 1011(b)(iii) of the Indentures relating to the Qwest 8.29% Senior
Discount Notes, Qwest 9.47% Senior Discount Notes, Qwest 7.50% Senior Notes and
the Qwest 10.875 Senior Notes and (II) after the Senior Unsecured Debt Rating is
BBB-or Baa3 or better, Section 1011(a) of the Indentures relating to the Qwest
8.29% Senior Discount Notes, Qwest 9.47% Senior Discount Notes, Qwest 7.50%
Senior Notes and the Qwest 10.875 Senior Notes ; and
(h) In the case of any Working Line Advance , (i) the aggregate
outstanding Working Line Advances after giving effect to such proposed Working
Line Advance shall not exceed the Working Line Commitment, (ii) the Borrower
shall represent and warrant that the use of the proceeds of the Working Line
Advance complies with Section 2.15(b) hereof (and the delivery of a Borrowing
Notice shall constitute such representation) and (iii) such Working Line Advance
is permitted Debt under the Existing Financing Documentation, including, without
limitation, (I) prior to the time that the Senior Unsecured Debt Rating is BBB-
or Baa3 or better, Section 1011(b)(iii) of the Indentures relating to the Qwest
8.29% Senior Discount Notes, Qwest 9.47% Senior Discount Notes, Qwest 7.50%
Senior Notes and the Qwest 10.875 Senior Notes and (II) after the Senior
Unsecured Debt Rating is BBB- or Baa3 or better, Section 1011(a) of the
Indentures relating to the Qwest 8.29% Senior Discount Notes, Qwest 9.47% Senior
Discount Notes, Qwest 7.50% Senior Notes and the Qwest 10.875 Senior Notes.
52
<PAGE>
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties. The Borrower hereby represents
and warrants to each Lender as follows:
(a) Incorporation, Good Standing, Etc. The respective jurisdictions of
---------------------------------
incorporation and percentage ownership of the Restricted Subsidiaries of the
Borrower on the Closing Date that are listed on Schedule 5.01(a) hereto are true
----------------
and correct. Each of the Borrower and the Material Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its state of organization. Each of the Borrower and the Material
Subsidiaries has the corporate power and authority to own or lease its
properties and to carry on its business as now being conducted. Each of the
Borrower and the Restricted Subsidiaries is duly qualified, in good standing and
authorized to do business in each jurisdiction in which the character of its
Properties or the nature of its business requires such qualification or
authorization, except where the failure to so qualify is not, and would not
reasonably be expected to cause, a Material Adverse Change.
(b) Authority, Execution, Enforceability, Etc. The Borrower has corporate
-----------------------------------------
power and has taken all necessary corporate action to authorize it to borrow
hereunder. Each of the Borrower and the Material Subsidiaries has the corporate
power and has taken all necessary corporate action to execute, deliver and
perform the Loan Papers to which it is party, if any, in accordance with the
terms thereof, and to consummate the transactions contemplated thereby. Each
Loan Paper has been duly executed and delivered by the Borrower or such
Restricted Subsidiary executing it. Each of the Material Loan Documents to
which the Borrower or any of the Restricted Subsidiaries is a party is a legal,
valid and binding obligation of the Borrower or such Restricted Subsidiary, as
applicable, enforceable against the Borrower or such Restricted Subsidiary in
accordance with its terms, subject, to the following qualifications: (i)
equitable principles generally, and (ii) bankruptcy, insolvency, liquidation,
reorganization, moratorium, fraudulent conveyance, reconstruction or other
similar laws affecting enforcement of creditors' rights generally (insofar as
any such law relates to the bankruptcy, insolvency or similar event of the
Borrower or any Subsidiary of the Borrower).
(c) No Conflicts. The execution, delivery and performance by each of the
------------
Borrower and the Restricted Subsidiaries of the Material Loan Documents to which
they are a party, and the consummation of the transactions contemplated thereby,
including, without limitation, borrowings under the Loan Papers, do not (i)
require any material consent or material approval not already obtained,
including, without limitation, any material consent or material approval
required with respect to any Material License, or otherwise required by the FCC,
any PUC, or any other federal, state or local regulatory authority, (ii) violate
any other material Applicable Law, (iii) conflict with, result in a breach of,
or constitute a default under the articles of incorporation or by-laws of the
Borrower or any Material Subsidiary, or under any Material License, Existing
Financing Documentation, other material agreement or other material instrument,
to which the Borrower or any Material Subsidiary is a party or beneficiary of,
or by which they or their respective Properties may be bound, or (iv) result in
or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower or any Material
Subsidiary, except Permitted Liens.
(d) Business. The Borrower and the Restricted Subsidiaries are primarily
--------
engaged in the Telecommunications Business, including, without limitation, the
internet, internet protocol, web hosting and electronic commerce.
53
<PAGE>
(e) Licenses. On the Closing Date, all Material Licenses of the Borrower
--------
and the Restricted Subsidiaries have been obtained, and are in full force and
effect. On the Closing Date, the Borrower and the Restricted Subsidiaries are
in compliance in all material respects with the provisions of each Material
License. On each date after the Closing Date on which this representation is
deemed to be made, the Borrower and the Restricted Subsidiaries are in
compliance with the provisions of each License, except to the extent that any
such non-compliance is not, or would not reasonably be expected to cause, a
Material Adverse Change. On the Closing Date, no Material License is the
subject of any pending or, to the actual knowledge of an Authorized Officer,
threatened proceeding that would reasonably be expected to result in a
revocation of such Material License. On each date after the Closing Date on
which this representation is deemed to be made, no License is the subject of any
pending or, to the actual knowledge of an Authorized Officer, threatened,
proceeding that would reasonably be expected to result in a revocation of such
Material License, except any such event that is not, and would not reasonably be
expected to cause, a Material Adverse Change. As of the Closing Date, the
Borrower and the Restricted Subsidiaries have obtained all Licenses from each
applicable PUC that are necessary for the operation of their respective
businesses as currently conducted, which Licenses have been maintained in full
force and effect, and the Borrower and the Restricted Subsidiaries are operating
in compliance in all material respects with all provisions of such Licenses,
except to the extent that any failure to obtain or maintain any one or more
Licenses, or any non-compliance, is not, and would not reasonably be expected
to cause, a Material Adverse Change.
(f) Compliance with Laws. The Borrower and the Material Subsidiaries are
--------------------
in compliance in all material respects with all material Applicable Laws, other
than regulations and laws of the PUC or FCC. The Borrower and the Material
Subsidiaries have duly and timely filed all material reports, statements and
filings that are required to be filed by any of them with respect to Material
Licenses under the Communications Act, and are in all material respects in
compliance therewith, including without limitation the material rules and
regulations of the FCC. The Borrower and the Restricted Subsidiaries are in all
respects in compliance with all PUC Licenses and the rules and regulations of
each applicable PUC, except any such failure or compliance which is not, and
would not reasonably be expected to cause, a Material Adverse Change. Except as
set forth on Schedule 5.01(f) hereto, as of the Closing Date, the Borrower has
----------------
no actual knowledge of any event or circumstance constituting (i) material
noncompliance (or any Person alleging material noncompliance) with any material
rule or regulation of the FCC and (ii) noncompliance (or any Person alleging
noncompliance) with any rule or regulation of any applicable PUC, except any
noncompliance which is not, or would not reasonably be expected to cause, a
Material Adverse Change. On each date after the Closing Date on which this
representation is deemed to be made, the Borrower has no actual knowledge of any
event or circumstance constituting noncompliance (or any Person alleging
noncompliance) with any rule or regulation of the FCC or any applicable PUC,
except any such event or circumstance which is not, and would not reasonably be
expected to cause, a Material Adverse Change.
(g) Title to Properties. On the Closing Date, the Borrower and the
-------------------
Material Subsidiaries have good title to, valid leasehold interest in or a valid
right to use their material assets and material Properties. On each date after
the Closing Date on which this representation is deemed to be made, the Borrower
and the Restricted Subsidiaries have good title to, valid leasehold interest in
or valid right to use their assets and Properties, except any such failure which
is not, and which would not reasonably be expected to cause, a Material Adverse
Change. None of the material assets of the
54
<PAGE>
Borrower and the Material Subsidiaries is subject to any Liens, except Permitted
Liens and Liens permitted under Section 8.03(b) hereof.
(h) Litigation. On the Closing Date, except as reflected on Schedule
---------- --------
5.01(h) hereto, there is no action, suit, proceeding or any other Litigation
- -------
pending against, or, to the actual knowledge of an Authorized Officer,
threatened against the Borrower or any of its Restricted Subsidiaries, or any of
their material Properties, in any court or before any arbitrator of any kind or
before or by any governmental body, with respect to which the amount at dispute
is above $25,000,000. On each date after the Closing Date on which this
representation is deemed to be made, there is no action, suit, proceeding or any
other Litigation pending against, or, to the actual knowledge of an Authorized
Officer, threatened against the Borrower or any of its Restricted Subsidiaries,
or any of their Properties, in any court or before any arbitrator of any kind or
before or by any governmental body, except any such action, suit, proceeding or
any other Litigation which is not, and which would not reasonably be expected to
cause, a Material Adverse Change.
(i) Taxes. All federal, material state and other material Tax returns of
-----
the Borrower and its Restricted Subsidiaries required by law to be filed have
been duly filed and all federal, material state and other material Taxes,
material assessments and other material governmental charges or levies upon the
Borrower, its Restricted Subsidiaries or any of their Properties, income,
profits and assets, which are shown on such returns to be due and payable, have
been paid, except those that are diligently contested in good faith by the
Borrower and for which a reserve has been established in accordance with GAAP,
and with respect to which no foreclosure, distraint, sale or similar proceedings
have been commenced.
(j) Financial Statements. The Borrower has furnished or caused to be
--------------------
furnished to the Lenders copies of its annual audited financial statements dated
December 31, 1998. Each such statement presents fairly in all material respects
and in accordance with GAAP, the financial position of the Borrower, its
consolidated Subsidiaries as at such dates, and the results of operations for
the periods then ended. As of the Closing Date, the Borrower and the Restricted
Subsidiaries have no material liabilities, contingent or otherwise, nor material
losses, except as disclosed in writing to the Lenders prior to the Closing Date
or as disclosed on any subsequent financial statements. On the Closing Date
after giving effect to the Advances made on such date, the Borrower and each of
the Material Subsidiaries is Solvent.
(k) Material Adverse Change. On the Closing Date, no event or
-----------------------
circumstance has occurred or arisen since December 31, 1998 that is, or would
reasonably be expected to cause, a Material Adverse Change.
(l) ERISA. None of the Borrower, or its Controlled Group maintains or
-----
contributes to any Plan other than those disclosed to the Administrative Agent
in writing from time to time. On the Closing Date, each such Plan is in
compliance in all material respects with the applicable provisions of ERISA, the
Code, and any other applicable Federal or state law, rule or regulation. On
each date after the Closing Date on which this representation is deemed to be
made, each such Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code, and any other applicable Federal or
state law, rule or regulation, except such non-compliance which is not, and
would not reasonably be expected to cause, a Material Adverse Change. With
respect to each Plan of the Borrower and each member of its Controlled Group
(other than a Multiemployer Plan), all reports required under ERISA or any other
Applicable Law to be filed with any
55
<PAGE>
governmental authority, the failure of which to file would reasonably result in
liability of the Borrower, or any member of its Controlled Group in excess of
$10,000,000, have been duly filed. All such reports are true and correct in all
material respects as of the date given. On the Closing Date, other than as
disclosed to the Administrative Agent in writing, no such Plan of the Borrower,
or any member of its Controlled Group has any accumulated funding deficiency (as
defined in Section 412(a) of the Code) (without regard to any waiver granted
under Section 412 of the Code), nor has any funding waiver from the Internal
Revenue Service been received or requested. On each date after the Closing Date
on which this representation is deemed to be made, no such Plan of the Borrower,
or any member of its Controlled Group has any accumulated funding deficiency (as
defined in Section 412(a) of the Code) (without regard to any waiver granted
under Section 412 of the Code), nor has any funding waiver from the Internal
Revenue Service been received or requested which is, or would reasonably be
expected to cause, a Material Adverse Change. None of the Borrower, or any
member of its Controlled Group has failed to make any contribution or pay any
amount due or owing as required by Section 412 of the Code or Section 302 of
ERISA or the terms of any such Plan prior to the due date under Section 412 of
the Code and Section 302 of ERISA in excess of $10,000,000. There has been no
ERISA Event or any event requiring disclosure under Section 4041(c)(3)(C),
4068(f), 4063(a) or 4043(b) of ERISA with respect to any Plan or trust of the
Borrower, or any member of its Controlled Group within 60 months prior to the
Closing Date or thereafter, except as disclosed to the Administrative Agent in
writing. The value of the assets of each Plan (other than a Multiemployer Plan)
of the Borrower and each member of its Controlled Group equaled or exceeded the
present value of the benefit liabilities, determined on an on-going Plan basis,
as defined in Title IV of ERISA, of each such Plan as of the most recent
valuation date using Plan actuarial assumptions at such date. There are no
pending or, to the actual knowledge of an Authorized Officer, threatened claims,
lawsuits or actions (other than routine claims for benefits in the ordinary
course) asserted or instituted against (i) the assets of any Plan or trust or
against any fiduciary of a Plan with respect to the operation of such Plan, or
(ii) the assets of any employee welfare benefit plan within the meaning of
Section 3(1) or ERISA, or against any fiduciary thereof with respect to the
operation of any such plan, except any such claims, lawsuits or actions that are
not, and would not reasonably be expected to cause, a Material Adverse Change.
None of the Borrower, or any member of its Controlled Group has engaged in any
non-exempt prohibited transactions, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, in connection with any Plan, except such
transactions which are not, or would not in the aggregate reasonably be expected
to cause, a Material Adverse Change. None of the Borrower or any member of its
Controlled Group has incurred or reasonably expects to incur any liability under
Title IV of ERISA (other than premiums due under Section 4007 of ERISA to the
PBGC) in excess of $10,000,000. None of the Borrower any member of its
Controlled Group, or, to the actual knowledge of any Authorized Officer, any
organization to which the Borrower or any member of its Controlled Group is a
successor or parent corporation within the meaning of ERISA Section 4069(b), has
engaged in a transaction within the meaning of ERISA Section 4069. None of the
Borrower or any member of its Controlled Group maintains or has established any
welfare benefit plan within the meaning of Section 3(1) of ERISA which provides
for continuing benefits or coverage for any participant or any beneficiary of
any participant after such participant's termination of employment except as may
be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA") and the regulations thereunder, and at the expense of the
participant or the beneficiary of the participant, or retiree medical
liabilities, except any such plan that would not reasonably be expected to
result in material liability to the Borrower or any Material Subsidiary. Each of
the Borrower and its Controlled Group which maintains a welfare benefit plan
within the meaning of Section 3(1) of ERISA has complied in all material
respects with any
56
<PAGE>
applicable notice and continuation requirements of COBRA and the regulations
thereunder, except where any such noncompliance has not caused, or would not
reasonably be expected to cause, liability to the Borrower or any Material
Subsidiary in excess of $10,000,000.
(m) Margin Stock. The Borrower is not, nor are any of the Restricted
------------
Subsidiaries, engaged principally or as one of its important activities in the
business of extending credit for the purpose of purchasing or carrying any
margin stock within the meaning of Regulations T, U and X of the Board of
Governors of the Federal Reserve System, and no part of the proceeds of the
Advances will be used to purchase or carry any margin stock (as defined by
Regulation U) or to extend credit to others for the purpose of purchasing or
carrying any margin stock. Not more than 25% of the assets of any of the
Borrower or any of its Subsidiaries are margin stock (as defined by Regulation
U). None of the Borrower and its Subsidiaries, nor any agent acting on their
behalf, has taken any action which might cause this Agreement or any Loan Papers
to violate any regulation of the Board of Governors of the Federal Reserve
System or to violate the Exchange Act, in each case as in effect now or as the
same may hereafter be in effect from time to time.
(n) Event of Default. The Borrower and the Material Subsidiaries are in
----------------
compliance with all of the provisions of their articles of incorporation. The
Borrower and the Material Subsidiaries are in material compliance with all of
the provisions of their by-laws. No event has occurred or failed to occur,
which has not been remedied or waived, the occurrence or non-occurrence of which
constitutes, or which with the passage of time or giving of notice or both would
constitute, an Event of Default.
(o) Investment Company Act of 1940. The Borrower is not, nor are any of
------------------------------
its Subsidiaries, required to register under the provisions of the Investment
Company Act of 1940, as amended (the "ICA"). Neither the entering into or
performance by the Borrower of this Agreement nor the issuance of the Notes, nor
the execution, delivery and performance of the obligations by the Borrower and
its Restricted Subsidiaries under the Loan Papers, violates any provision of the
ICA or requires any consent, approval, or authorization of, or registration
with, the Securities and Exchange Commission or any other governmental or public
body of authority pursuant to any provisions of the ICA.
(p) Environmental. On the Closing Date, no Authorized Officer has any
-------------
actual knowledge that any Hazardous Substance has been installed on any real
property now owned by the Borrower or any of its Restricted Subsidiaries, except
(i) for Hazardous Substances the presence of which is not in violation of
Environmental Law in an amount which is not or would not reasonably be expected
to cause, liability to the Borrower or any Restricted Subsidiary in the
aggregate in excess of $5,000,000 or (ii) as set forth on Schedule 5.01(p)
----------------
hereto. On each date after the Closing Date on which this representation is
deemed to be made, no Authorized Officer of the Borrower or any Restricted
Subsidiary has any actual knowledge that any Hazardous Substance has been
installed in violation of law on any real property now owned by the Borrower or
any of the Restricted Subsidiaries except those installations which are not, and
would not reasonably be expected to cause, a Material Adverse Change. As of the
Closing Date, except as disclosed on Schedule 5.01(p) hereto, to the actual
----------------
knowledge of an Authorized Officer,
57
<PAGE>
the Borrower and the Restricted Subsidiaries are not in material violation of or
subject to any existing, pending or material threatened formal investigation or
formal inquiry by any governmental authority, or subject to any material
remedial obligations under any applicable Environmental Laws. On each date after
the Closing Date on which this representation is deemed to be made, to the
actual knowledge of an Authorized Officer, the Borrower and the Restricted
Subsidiaries are not in violation of or subject to any existing, pending or
threatened formal investigation or inquiry by any governmental authority or to
any remedial obligations under any applicable Environmental Laws which in each
case is, or would reasonably be expected to cause, a Material Adverse Change. To
the actual knowledge of an Authorized Officer, the Borrower and the Restricted
Subsidiaries are not required to obtain any material permits, Licenses or
similar authorizations to construct, occupy, operate or use any buildings,
improvements, fixtures, and equipment forming a part of any real property of the
Borrower or any Restricted Subsidiary by reason of any applicable Environmental
Laws, except those that have been obtained, or which the failure to obtain has
not, and would not reasonably be expected to cause, a Material Adverse Change.
As of the Closing Date, except as set forth in Schedule 5.01(p) hereto, no
----------------
Authorized Officer has actual knowledge that any Hazardous Substances or solid
wastes have been disposed of on the real property of the Borrower or any of its
Restricted Subsidiaries in violation of any applicable Environmental Law, except
such violations which are not, and would not reasonably be expected to cause,
liability to the Borrower and/or the Restricted Subsidiaries in the aggregate in
excess of $5,000,000. As of the Closing Date, except as set forth in Schedule
--------
5.01(p) hereto, no Authorized Officer has actual knowledge that any Hazardous
- -------
Substances or solid wastes have been released on or to the real property of the
Borrower or any of its Restricted Subsidiaries in violation of any applicable
Environmental Law, except such violations which are not, and would not
reasonably be expected to cause, liability to the Borrower and/or the Restricted
Subsidiaries in the aggregate in excess of $10,000,000. On each date after the
Closing Date on which this representation is deemed to be made, no Authorized
Officer of the Borrower and the Restricted Subsidiaries has actual knowledge
that any Hazardous Substances or solid wastes have been disposed of or otherwise
released on or to the real property of the Borrower or any of the Restricted
Subsidiaries, in violation of the applicable Environmental Laws, except any such
disposal or release which is not, and would not reasonably be expected to cause,
a Material Adverse Change.
(q) Subsidiaries. As of the Closing Date, the Borrower has no
------------
Subsidiaries other than those Subsidiaries specifically disclosed in part (a) of
Schedule 5.01(q) hereto and has no equity investments in any other Person other
- ---------------
than those specifically disclosed in part (b) of Schedule 5.01(q) hereto.
-------------------
(r) Broker's Fees. No broker's, finder's or other similar fee or
-------------
commission will be payable by the Borrower (other than to the Agents and the
Lenders hereunder) with respect to the making of the Commitment or the Advances
hereunder.
(s) Intellectual Property. To the actual knowledge of the Authorized
---------------------
Officers as of the Closing Date, the Borrower and its Restricted Subsidiaries
have obtained all licenses of material patents, trademarks, service-marks, trade
names, copyrights, and other rights from third parties that are necessary for
the operation of their business as presently conducted. On each date afer the
Closing Date on which this representation is deemed to be made, the Borrower and
the Restricted Subsidiaries have obtained all Licenses of patents, trademarks,
service-marks, trade names, copyrights and other similar rights that are
necessary for the operation of their business as presently conducted, except
those, the failure of which to obtain has not caused, and would not reasonably
be expected to cause, a Material Adverse Change. Nothing has come to the
attention of the Borrower or any of the Restricted Subsidiaries to the effect
that (i) any process, method, part or other material presently contemplated to
be employed by the Borrower or any Material Subsidiary may infringe any patent,
trademark, service-mark, trade name, copyright, or other right owned by any
other Person except to the extent Borrower or any of the Restricted Subsidiaries
has obtained a License therefor,
58
<PAGE>
or (ii) there is pending or overtly threatened any claim or Litigation against
or affecting the Borrower or any Material Subsidiary contesting its right to
sell or use any such process, method, part or other material, except in the case
of clause (i) and (ii) above, any such event or circumstance which has not
caused, and would not reasonably be expected to cause, a Material Adverse
Change.
(t) Accuracy of Borrower Information. On the Closing Date, neither this
--------------------------------
Agreement nor any other document, certificate or statement (in each case, taken
as a whole but excluding the Offering Memorandum) which has been furnished to
any Lender by or on behalf of the Borrower or any of its Subsidiaries in
connection herewith contained any materially untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statement
contained herein and therein not materially misleading at the time it was
furnished in light of the circumstances under which they were made, provided
--------
that notwithstanding anything to the contrary in this Agreement or in the Loan
- ----
Papers, the Borrower makes no representation, warranty or guaranty as to any
projections furnished to the Lenders except that they were prepared in good
faith by the Borrower on the basis of assumptions which the Borrower believed
were reasonable as of the date of such projections. On each date after the
Closing Date on which this representation is deemed to be made, the Borrower
represents that none of the regular or periodic reports, or any registration
statement or prospectus filed by the Borrower or any Restricted Subsidiary with
the Securities and Exchange Commission (or any successor agency) contains any
materially untrue statement of a material fact or omits to state a material fact
necessary in order to make the statement contained therein not materially
misleading at the time of such filing in light of the circumstances under which
they were made. The historical financial statements of the Borrower and
Guarantor contained in the Offering Memorandum present fairly in all material
respects and in accordance with GAAP (subject to year end adjustments and the
absence of footnotes as to the Borrower's unaudited financial statements
contained therein) the financial position of the Borrower and the Guarantor,
respectively, and their respective consolidated Subsidiaries as of the date of
such financial statements.
(u) Year 2000 Compliance. The Borrower has (A) undertaken such review and
--------------------
assessment of its business and operations as it deems appropriate with respect
to Year 2000 Compliance, (B) developed an appropriate plan and timeline for
addressing Year 2000 Compliance issues on a timely basis, and (C) to date,
implemented that plan substantially in accordance with that timetable. The
aggregate costs to and charges by the Borrower related to Year 2000 Compliance
shall not exceed an amount which is, or would reasonably be expected to cause, a
Material Adverse Change.
(v) Existing Financing. The Loans and the Conditional Early Release
------------------
Unlimited Guaranty of the Loans and all Obligations are senior to or pari passu
with all Existing Financing. Nothing in this Agreement and the other Loan Papers
violates any provision of the Existing Financing Documentation, and no consent
is required in connection with any of the Existing Financing Documentation in
order to execute, deliver and perform under this Agreement and the other Loan
Papers. To the actual knowledge of the Authorized Officers, there exists no
"Default" or "Event of Default" as defined in, and under any of the Existing
Financing Documentation, or any other event or circumstance which causes a
Repayment Event with respect to any of the Existing Financing. All notices
required by any Existing Financing Documentation regarding the execution,
delivery or performance by the Borrower or any Restricted Subsidiary of the Loan
Papers have been given in accordance with the terms of the Existing Financing
Documentation.
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(w) Fibers and Fiber Capacity. As of the Closing Date, the Borrower and
-------------------------
its Restricted Subsidiaries own or have the right to use through the Maturity
Date not less than 24 optical fibers on a weighted average route mile basis on
the Backbone (which such fibers are not subject to any transfer, disposition or
IRU Agreement granting an IRU to any Person other than the Borrower or any
Restricted Subsidiary), and such fiber capacity is sufficient, on a weighted
average route mile basis, to meet the business plan of the Borrower.
(x) Sinking Funds and Defeasance. As of the Closing Date, no
----------------------------
documentation relating to any Debt for Borrowed Money of the Borrower or any
Restricted Subsidiary has any provision granting any creditor a sinking fund or
a right to require a defeasance of the obligations owing to it.
5.02. Survival of Representations and Warranties. All representations
and warranties made under this Agreement and the other Loan Papers shall be
deemed to be made at and as of the Closing Date and at and as of the date of
each Advance (excluding each Refinancing Advance), and each shall be true and
correct in all material respects when made (except those representations and
warranties that specifically speak as of a particular date). All such
representations and warranties shall survive, and not be waived by, the
execution hereof by any Lender, any investigation or inquiry by any Lender, or
by the making of any Advance under this Agreement.
ARTICLE VI. GENERAL COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Commitment or any Letter of Credit is outstanding (whether or not the conditions
to borrowing have been or can be fulfilled):
6.01. Preservation of Existence and Similar Matters.
(a) The Borrower shall, and shall cause each Material Subsidiary to,
preserve and maintain, or timely obtain and thereafter preserve and maintain (i)
material rights, franchises, authorizations, consents, privileges and all other
material Licenses from federal, state and local governmental bodies and any
Tribunal (regulatory or otherwise) which the Borrower or such Material
Subsidiary deems reasonably necessary or advisable to conduct its business in
the ordinary course, and (ii) its existence (except as permitted by Section 8.05
hereof); and
(b) The Borrower shall, and shall cause each Restricted Subsidiary to,
qualify and remain qualified and authorized to do business in each jurisdiction
in which the character of its Properties or the nature of its business requires
such qualification or authorization, except where the failure to do so is not,
and would not reasonably be expected to cause, a Material Adverse Change.
6.02. Business; Compliance with Applicable Law. The Borrower shall,
and shall cause the Restricted Subsidiaries to (a) engage primarily in the
Telecommunications Business, including, without limitation, the internet,
internet protocol, web hosting or electronic commerce, and (b) comply in all
material respects with the requirements of all material Applicable Law.
6.03. Maintenance of Properties. The Borrower shall, and shall cause
each Material Subsidiary to, maintain or cause to be maintained all their
material Properties necessary to the conduct of their business (whether owned or
held under lease) in reasonably good repair, working
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order and condition, taken as a whole, and from time to time make or cause to be
made all appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
6.04. Accounting Methods and Financial Records. The Borrower shall,
and shall cause each Restricted Subsidiary to, maintain a system of accounting
established and administered in accordance with GAAP and keep adequate records
and books of account in which complete entries will be made and all transactions
reflected in accordance with GAAP. The Borrower shall, and shall cause each of
the Restricted Subsidiaries to, maintain a fiscal year ending on December 31.
6.05. Insurance. The Borrower shall, and shall cause each Restricted
Subsidiary to, maintain insurance from responsible companies in such amounts and
against such risks as shall be customary and usual in the industry for companies
of similar size and capability. The Borrower shall use commercially reasonable
efforts to cause each insurance policy to provide for at least 30 days' prior
notice to the Administrative Agent of any proposed termination or cancellation
of such policy, whether on account of default or otherwise.
6.06. Payment of Taxes and Claims. The Borrower shall, and shall cause
each of its Restricted Subsidiaries to, pay and discharge all federal and other
material Taxes, assessments and governmental charges or levies imposed upon it
or its income or Properties prior to the date on which penalties attach thereto
which are shown on such Person's Tax returns to be due and payable, and all
lawful material claims for labor, materials and supplies which, if unpaid, might
become a Lien upon any of their Properties or assets, except those Taxes,
assessments and charges which are immaterial or contested by the Borrower
diligently in good faith, and for which adequate reserves have been established
in accordance with GAAP. The Borrower shall, and shall cause each of its
Restricted Subsidiaries to, timely file all information returns required by
federal Tax Authorities, and all material information returns required by state
or local Tax authorities.
6.07. Visits and Inspections. The Borrower shall, and shall cause each
Restricted Subsidiary to, promptly, permit representatives of the Administrative
Agent and the Arranging Agents, or any Lender accompanied by the Administrative
Agent from time to time, upon prior notice reasonable under the circumstances,
to (a) visit and inspect the Properties of the Borrower and each Restricted
Subsidiary during normal business hours (unless there exists an Event of Default
in which case during such hours as is reasonable under the circumstances), (b)
inspect and make extracts from and copies of the Borrower's and each Restricted
Subsidiary's books and records, in each case as reasonable under the
circumstances, (c) discuss with the Borrower's and each Restricted Subsidiary's
officers (and during an Event of Default, with the Auditors together with an
Authorized Officer of the Borrower), its business, assets, liabilities,
financial positions, results of operations and business prospects, and (d) make
reasonable informational requests of the Auditors from time to time, with
respect to which the Borrower shall be obligated to procure such information
from the Auditors.
6.08. Use of Proceeds. The Borrower agrees that the proceeds of the
Loans shall be used in accordance with the terms of Section 2.15 hereof.
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6.09. Indemnity. The Borrower agrees to indemnify and hold harmless
the Administrative Agent, the Lead Arranger, the Arranging Agents, the Co-
Arrangers, the Co-Syndication Agents, each Lender and their respective
affiliates, officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, the reasonable fees and
expenses of counsel and the allocated cost of internal counsel) which may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Loans, including without
limitation, any transaction in which the proceeds of any borrowing are or are to
be applied, whether or not an Indemnified Party is a party thereto, whether or
not the transactions contemplated herein are consummated, and whether or not
such claim, damage, loss, liability or expense results from the negligence of
such Indemnified Party unless and only to the extent that as to any Indemnified
Party, it shall be determined in a final, non-appealable judgment by a court of
competent jurisdiction that such losses, claims, damages, liabilities, or
expenses resulted from such Indemnified Party's gross negligence or willful
misconduct. Borrower will not settle or consent to judgment with respect to any
investigation, litigation, or proceeding without the prior written consent of
the Administrative Agent and any affected Indemnified Party, unless such
settlement or consent includes an unconditional release of each such Indemnified
Party or unless each Indemnified Party is entitled to be indemnified under this
Section 6.09 (which entitlement the Borrower will confirm to such Indemnified
Party in writing, if requested). The Borrower shall periodically, upon request,
reimburse each Indemnified Party for its reasonable legal and other actual
expenses (including the costs of any investigation and preparation) incurred in
connection with any indemnified matter. The Borrower agrees that no Indemnified
Party shall have any liability for any indirect or consequential damages in
connection with its activities related to the Loans. The reimbursement,
indemnity and contribution obligations under this Section shall be in addition
to any liability which the Borrower may otherwise have, shall extend upon the
same terms and conditions to each Indemnified Party, and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Borrower, the Administrative Agent, the Lenders and all
other Indemnified Party. This Section shall survive any termination of this
Agreement and repayment of the Obligations.
6.10. Environmental Law Compliance. The use which the Borrower or any
of its Restricted Subsidiaries intends to make of any real Property owned by it
will not result in the disposal or other release of any Hazardous Substance or
solid waste on or to such real Property in violation of any Environmental Law,
except any such violation which is not, and would not reasonably be expected to
cause, a Material Adverse Change. As used herein, the term "release" as used in
this Section shall have the meanings specified in CERCLA (as defined in the
definition of applicable Environmental Laws), and the terms "solid waste" and
"disposal" shall have the meaning specified in RCRA (as defined in the
definition of applicable Environmental Laws); provided, however, that if CERCLA
or RCRA is amended so as to broaden or narrow the meaning of any term defined
thereby, such broader or narrower meaning shall apply subsequent to the
effective date of such amendment; and provided further, to the extent that any
other law applicable to the Borrower, any of its Restricted Subsidiaries or any
of their properties and assets establishes a meaning for "hazardous substance,"
"release," "solid waste," or "disposal" which is broader than that specified in
either CERCLA or RCRA, such broader meaning shall apply. The Borrower and each
Restricted Subsidiary agrees to indemnify and hold the Administrative Agent and
each Lender harmless from and against, and to reimburse them with respect to,
any and all claims, damages, losses, liabilities and expenses (including
reasonable attorneys' fees and courts costs) asserted or awarded against or
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incurred by any of them by reason of or arising out of transactions contemplated
by this Agreement and (a) the failure of the Borrower or any of its Restricted
Subsidiaries to perform any obligation hereunder regarding asbestos or
applicable Environmental Laws, (b) any violation by the Borrower or Restricted
Subsidiary on or before the Release Date of any applicable Environmental Law in
effect on or before the Release Date, and (c) any act, omission, event or
circumstance existing or occurring on or prior to the Release Date, involving
the presence on such real Property or release from such real Property of
Hazardous Substances or solid wastes disposed of or otherwise released on or
prior to the Release Date, resulting from or in connection with the ownership by
the Borrower or any Restricted Subsidiary of the real Property, regardless of
whether the act, omission, event or circumstance constituted a violation of any
applicable Environmental Law at the time of its existence or occurrence, or
whether the act, omission, event or circumstance is caused by or relates to the
negligence of any indemnified Person; provided, that the Borrower shall not be
under any obligation to indemnify the Administrative Agent or any Lender to the
extent that any such liability arises as the result of the gross negligence or
willful misconduct of such Person, as finally judicially determined by a court
of competent jurisdiction. The provisions of this Section shall survive the
Release Date and shall continue thereafter in full force and effect.
6.11. Restricted Subsidiary Designation. The Borrower agrees that each
Restricted Subsidiary on the Closing Date will remain a Restricted Subsidiary
until the Obligations have been repaid in full and the Commitment has been
terminated, unless any Restricted Subsidiary that is not a Material Subsidiary
has been Disposed of in accordance with the terms of Section 8.05(a)(ii)(A)
hereof.
6.12. Year 2000 Compliance. The Borrower will promptly notify the
Administrative Agent in the event the Borrower discovers or determines that any
computer application (including those of its suppliers and vendors) that is
material to its or any of the Restricted Subsidiaries, business and operations
will not be Year 2000 Compliant on a timely basis, except to the extent that
such failure is not, and would not reasonably be expected to cause, a Material
Adverse Change.
6.13. Fiber Capacity. The Borrower shall, and shall cause its
Restricted Subsidiaries to, at all times maintain ownership of or the right to
use through the Maturity Date (or until all Obligations are paid in full) not
less than 24 optical fibers on a weighted average route mile basis on the
Backbone, which such fibers may not be transferred, disposed of or made subject
to an IRU Agreement granting an IRU to any Person other than the Borrower or any
Restricted Subsidiary if such transfer, disposal or IRU Agreement would result
in the Borrower and its Restricted Subsidiaries owning or having the right to
use less than 24 optical fibers on a weighted average route mile basis on the
Backbone through the Maturity Date (or until all Obligations are paid in full).
6.14. UCC Filings. The Borrower shall, and shall cause its Restricted
Subsidiaries to, agree to file UCC-3 releases for all UCC filings recorded
against the Borrower and its Restricted Subsidiaries, which such UCC filings
evidence Debt that has been repaid in full and extinguished and do not evidence
Permitted Liens.
6.15. Sinking Funds and Defeasance. To the extent that the Borrower
or any Restricted Subsidiary agrees in connection with the incurrence of any
Debt for Borrowed Money to a sinking fund or defeasance, the Borrower shall, and
shall cause each of its Restricted Subsidiaries to, grant to the Administrative
Agent and the Lenders proportionately similar rights to a sinking fund or
defeasance with respect to the Obligations.
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ARTICLE VII. INFORMATION COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Commitment or any Letter of Credit is outstanding (whether or not the conditions
to borrowing have been or can be fulfilled), the Borrower shall furnish or cause
to be furnished to the Administrative Agent two copies of the following:
7.01. Quarterly Financial Statements and Information. Within 60 days
after the end of each fiscal quarter (except the fourth fiscal quarter), (a)
consolidated balance sheets of the Borrower and the Restricted Subsidiaries, and
(b) either (i) a copy of the Form 10-Q (including all financial statements
contained herein) filed by the Borrower or (ii) consolidated balance sheets of
the Borrower and its Subsidiaries, each as at the end of such quarter, and the
related consolidated and consolidating statements of income and consolidated
statements of changes in cash for such quarter and for the elapsed portion of
the year ended with the last day of such quarter, all of which shall be
certified by an Authorized Officer of the Borrower on behalf of the Borrower,
to, in his or her opinion, present fairly in all material respects, in
accordance with GAAP (except that such financial statements may be subject to
year-end audit adjustments and do not have to contain footnotes), the financial
position and results of operations of (A) the Borrower and the Restricted
Subsidiaries, and (B) the Borrower and its Subsidiaries, respectively, as at the
end of and for such period, and for the elapsed portion of the year ended with
the last day of such period.
7.02. Annual Financial Statements and Information.
(a) Within 120 days after the end of each fiscal year, a copy of (i) the
consolidated balance sheets of the Borrower and the Restricted Subsidiaries,
(ii) either (A) a copy of the Form 10-K (including all financial statements
contained therein) filed by the Borrower, or (B) the consolidated balance sheets
of the Borrower and its Subsidiaries, each as of the end of such fiscal year,
and (iii) consolidated and consolidating statements of earnings, statements of
changes in shareholders' equity, and statements of changes in cash as of and
through the end of such fiscal year for the Borrower and the Restricted
Subsidiaries and the Borrower and its Subsidiaries, respectively, all of which
are prepared in accordance with GAAP, and certified by Auditors, whose opinion
shall be in scope and substance in accordance with generally accepted auditing
standards and shall be unqualified.
(b) As soon as available, but in any event within 90 days following the
end of each fiscal year, a copy of the annual consolidated operating budget of
the Borrower and the Restricted Subsidiaries for the succeeding fiscal year.
(c) As soon as available, but in any event within three Business Days
following any change in the Senior Unsecured Debt Rating, a Notice of Change of
Senior Unsecured Debt Rating.
7.03. Compliance Certificates. At the time financial statements are
furnished pursuant to Section 7.01 and Section 7.02 hereof, a duly completed
Compliance Certificate certified by an Authorized Officer of the Borrower on
behalf of the Borrower, evidencing no Default or Event of Default (or giving the
circumstances and details if there has been a Default or an Event of Default),
and certifying as to any changes (including, without limitation, creation of
Restricted Subsidiaries,
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acquisitions, dissolutions, liquidations, Dispositions, mergers, consolidations
and otherwise) in Material Subsidiaries, Restricted Subsidiaries and
Unrestricted Subsidiaries.
7.04. Copies of Other Reports and Notices.
(a) Promptly upon their becoming available, a copy of (i) all material
reports or material letters submitted to the Borrower or any Material Subsidiary
by accountants in connection with any annual, interim or special audit,
including without limitation any report prepared in connection with the annual
audit referred to in Section 7.02 hereof, and any other comment letter submitted
to management in connection with any such audit, (ii) each financial statement,
report, notice or proxy statement sent by the Borrower or any Restricted
Subsidiary to stockholders generally and (iii) each regular or periodic report
and any registration statement or prospectus (or material written communication
in respect of any thereof) filed by the Borrower or any Restricted Subsidiary
with any securities exchange, with the Securities and Exchange Commission or any
successor agency.
(b) Promptly upon becoming aware (i) that the holder(s) of any note(s) or
other evidence of indebtedness or other security of the Borrower or any Material
Subsidiary in excess of $25,000,000 in the aggregate has given notice or taken
any action with respect to a breach, failure to perform, claimed default or
event of default thereunder, (ii) of any occurrence or non-occurrence of any
event which constitutes or which with the passage of time or giving of notice or
both would constitute either (A) a "Default" or "Event of Default" (as such
terms are defined in the Existing Financing Documentation) by the Borrower or
any Material Subsidiary under any Existing Financing or (B) a Repayment Event
under any Existing Financing, or (iii) of the occurrence of any event,
circumstance or condition which is, or would reasonably be expected to cause, a
Material Adverse Change, a written notice specifying the details thereof (or the
nature of any claimed default or event of default) and what action is being
taken or is proposed to be taken with respect thereto;
(c) (i) Promptly upon receipt thereof, copies of any notices received
from the FCC, any applicable PUC or any other federal, state or local regulatory
agencies or any tribunal relating to any order, ruling, law, information or
policy and information relating to material developments with respect thereto
that both (A) relates to a breach of or noncompliance with the Communications
Act or any law, rule or regulation of any applicable PUC, and (B) would
reasonably be expected to result in the payment of money by the Borrower or any
Restricted Subsidiary in an amount of $25,000,000 or more in the aggregate, or
otherwise is, or would reasonably be expected to cause, a Material Adverse
Change, or result in the loss or suspension of any Material License; and
(ii) Within 10 Business Days after an Authorized Officer of the
Borrower has actual knowledge or notice thereof, notice of (A) the commencement
of any proceeding or investigation before any applicable PUC with respect to the
operations of the Borrower or any Restricted Subsidiary which would reasonably
be expected to cause a Material Adverse Change, and (B) the commencement of all
proceedings or material formal investigations before the FCC.
(d) From time to time and promptly upon each request, such data, reports,
documents or further information regarding the assets, business, liabilities,
financial position, results of operations or business prospects of the Borrower
and the Restricted Subsidiaries, as the Administrative Agent or any Lender
through the Administrative Agent may reasonably request, and from time to time
within a reasonable time period after each request during the continuance of an
Event of Default,
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such projections as may be reasonably requested by the Administrative Agent or
any Lender through the Administrative Agent.
7.05. Notice of Litigation, Default and Other Matters. Notice of the
following events within 10 Business Days after an Authorized Officer of the
Borrower has actual knowledge or notice thereof:
(a) Any action or proceedings in any court or before any arbitrator
involving claims for damages (including punitive damages) in excess of either
$25,000,000 for any one proceeding or investigation, or $50,000,000 in the
aggregate for all such proceedings (after deducting the amount with respect to
which the Borrower or any of its Restricted Subsidiaries is insured), against
the Borrower or any of its Restricted Subsidiaries, or any of their properties,
assets or businesses or with respect to which the Borrower or any Restricted
Subsidiary has liability; and
(b) The happening of any condition or event which constitutes a Default or
Event of Default. Such notice shall specify the nature and period of existence
thereof and what action is being taken or is proposed to be taken with respect
thereto.
7.06. ERISA Reporting Requirements.
(a) Promptly and in any event (i) within 30 days after the Borrower or any
member of their Controlled Group has actual knowledge that any ERISA Event
described in clause (a) of the definition of ERISA Event or any event described
in Section 4063(a) of ERISA with respect to any Plan of the Borrower or any
member of its Controlled Group has occurred, and (ii) within 10 Business Days
after the Borrower or any member of its Controlled Group has actual knowledge
that any other ERISA Event with respect to any Plan of the Borrower or any
member of its Controlled Group has occurred or a request for a minimum funding
waiver under Section 412 of the Code with respect to any Plan of the Borrower or
any member of its Controlled Group, a written notice describing such event and
describing what action is being taken or is proposed to be taken with respect
thereto, together with a copy of any notice of event that is given to the PBGC;
(b) Promptly and in any event within two Business Days after receipt
thereof by the Borrower or any member of its Controlled Group from the PBGC,
copies of each notice received by the Borrower or any member of its Controlled
Group of the PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing thereof by
the Borrower or any member of its Controlled Group with the United States
Department of Labor, the Internal Revenue Service or the PBGC, copies of each
annual and other report (including Schedule B thereto) with respect to each
Plan;
(d) Promptly and in any event within 30 days after receipt thereof, a copy
of any notice, determination letter, ruling or opinion the Borrower or any
member of its Controlled Group receives from the PBGC, the United States
Department of Labor or the Internal Revenue Service with respect to any Plan;
(e) Promptly, and in any event within 10 Business Days after receipt
thereof, a copy of any correspondence the Borrower or any member of their
Controlled Group receives from the Plan
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Sponsor (as defined by Section 4001(a)(10) of ERISA) of any Plan concerning
potential withdrawal liability pursuant to Section 4219 or 4202 of ERISA, and a
statement from the chief financial officer of the Borrower or such member of its
Controlled Group setting forth details as to the events giving rise to such
potential withdrawal liability and the action which the Borrower or such member
of its Controlled Group is taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material increases in the benefits
of any existing Plan which is not a Multiemployer Plan, or the establishment of
any new Plans, or the commencement of contributions to any Plan to which the
Borrower or any member of its Controlled Group was not previously contributing;
(g) Notification within three Business Days after the Borrower or any
member of its Controlled Group has actual knowledge that the Borrower or any
such member of its Controlled Group has or intends to file a notice of intent to
terminate any Plan under a distress termination within the meaning of Section
4041(c) of ERISA and a copy of such notice; and
(h) Within 10 Business Days after receipt of written notice of
commencement thereof, notice of all actions, suits and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower or any member of
its Controlled Group with respect to any Plan.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Commitment or any Letter of Credit is outstanding (whether or not the conditions
to borrowing have been or can be fulfilled):
8.01. Financial Covenants.
(a) Total Leverage Ratio. From the Closing Date and continuing at all
times until the Obligations have been repaid in full, the Borrower shall not
permit the Total Leverage Ratio to be more than the following ratios during the
following time periods:
<TABLE>
<CAPTION>
Period Ratio
------ ------------
<S> <C>
From the Closing Date through September 29, 1999 5.25 to 1.00
From September 30, 1999 through June 29, 2000 4.75 to 1.00
From June 30, 2000 through September 29, 2000 4.25 to 1.00
From September 30, 2000 and thereafter 3.75 to 1.00
</TABLE>
(b) Interest Coverage Ratio. From the Closing Date and continuing at all
times until the Obligations have been repaid in full, the Borrower shall not
permit the Interest Coverage Ratio to be less than 2.75 to 1.00.
(c) Minimum Consolidated Net Worth. From the Closing Date and continuing
at all times until the Obligations have been repaid in full, the Borrower shall
not permit the Consolidated Net Worth of the Borrower and the Restricted
Subsidiaries on any date of determination to be less than the sum of (i) 75% of
the Borrower's Consolidated Net Worth at December 31, 1998, (ii) 50%
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of Consolidated Net Income (with no deduction for losses) for the period
commencing January 1, 1999 through any such date of determination, plus (iii)
75% of the net proceeds received by the Borrower from common Capital Stock
issuances of the Borrower during the period from the Closing Date through any
such date of determination. For purposes of compliance with the foregoing
Consolidated Net Worth test, one-time non-cash merger and restructuring charges
relating to future acquisitions permitted to be consummated in accordance with
the terms hereof may be added back to Net Income provided that (A) such charges
may only be added back to the extent they were deducted from Net Income and (B)
the aggregate amount of all such add backs over the term of this Agreement shall
not exceed $250,000,000.
8.02. Debt for Borrowed Money. The Borrower shall not, and shall not
permit any Restricted Subsidiary to, create, assume, incur or otherwise become
or remain obligated in respect of, or permit to be outstanding, or suffer to
exist any Debt for Borrowed Money or issue any Preferred Stock, except the
following Debt for Borrowed Money, provided that, any Debt for Borrowed Money
which is permitted when incurred (whether it is incurred by operation of law or
otherwise) shall always be permitted hereunder:
(a) with respect to the Borrower and the Restricted Subsidiaries, Debt for
Borrowed Money under the Loan Papers;
(b) with respect to the Borrower and its Restricted Subsidiaries, Debt for
Borrowed Money in existence on the Closing Date described on Schedule 8.02
-------------
hereto and not otherwise permitted pursuant to the terms of this Section 8.02,
including without limitation, the Existing Financing and the TROL Transaction,
in each case only in the principal amounts and on the terms as such Debt for
Borrowed Money exists as of the Closing Date (subject to the provisions of
subparagraph (e) below); provided that, in the case of existing accreting Debt,
principal amount existing on the Closing Date shall include all amounts by which
any such debt accretes after the Closing Date;
(c) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower and the Wholly Owned
Restricted Subsidiaries, Debt owed to each other incurred in the ordinary course
of business in accordance with past practices;
(d) so long as there exists no Default or Event of Default both before and
after giving effect thereto, Debt of the Borrower in respect to Interest Rate
Protection Agreements;
(e) so long as there exists no Default or Event of Default both before and
after giving effect thereto, Debt of the Borrower or any Restricted Subsidiary
in respect of Permitted Refinancing Indebtedness;
(f) so long as there exists no Default or Event of Default both before and
after giving effect thereto,
(i) the Borrower may incur Subordinated Indebtedness, so long as
such Subordinated Indebtedness in the aggregate for all outstanding
principal amounts does not exceed $500,000,000, provided that, if the Total
Leverage Ratio is less than 4.00 to 1.00 both
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before and after giving effect to any such incurrence, the Borrower may
incur Subordinated Indebtedness in principal amounts in excess of
$500,000,000, and
(ii) in addition to Debt for Borrowed Money permitted to be incurred
in accordance with the terms of subparagraph (i) above, the Borrower may
incur Subordinated Indebtedness or unsecured indebtedness on a pari passu
basis with the Obligations, or issue Preferred Stock, so long as (A) such
indebtedness or Preferred Stock issuance does not exceed an amount equal to
$300,000,000 in principal amount outstanding at any time, (B) with respect
to indebtedness that is unsecured and on a pari passu basis, the terms are
reasonably acceptable to the Arranging Agents and (C) the material terms
are no more restrictive than the terms of this Agreement (including,
without limitation, the maturity, financial covenants and negative
covenants), provided that, if the Total Leverage Ratio is less than 4.00 to
1.00 both before and after giving effect to any such incurrence, the
Borrower may incur indebtedness or issue Preferred Stock meeting the
requirements set forth in (B) and (C) above in excess of $300,000,000 in
principal amounts outstanding;
(g) so long as there exists no Default or Event of Default both before and
after giving effect to the incurrence thereof, Debt for Borrowed Money and/or
Preferred Stock of the Borrower and the Restricted Subsidiaries:
(i) in an aggregate principal amount for the Borrower and the
Restricted Subsidiaries together not in excess of $50,000,000 outstanding
at any one time for both Debt for Borrowed Money and Preferred Stock, and
(ii) in addition to amounts permitted under (b) and (g)(i) above, in
respect of Capital Leases and purchase money as defined in the UCC in an
aggregate amount for the Borrower and the Restricted Subsidiaries together
not in excess of $125,000,000 outstanding at any one time, and
(iii) in addition to (g)(i) and (ii) above, any amount of Preferred
Stock, provided that the terms of such Preferred Stock shall (i) provide
for payment in kind dividends only, except to the extent declared by the
Board of Directors and approved by the Administrative Agent and the
Majority Lenders, (ii) contain no covenants of the Borrower or any
Restricted Subsidiary, (iii) contain no mandatory redemption, defeasance,
sinking fund or prepayment provisions, (iv) provide that the sole remedies
for breach or default of any provision of such Preferred Stock shall be
limited to additional board seats, so long as it does not cause a Change of
Control or Specified Change of Control, (v) not contain any voting rights
that could cause a Change of Control or a Specified Change of Control and
(vi) not contain any liquidation rights or conversion rights (other than
conversion rights into the common Capital Stock of the Borrower);
(h) so long as there exists no Default or Event of Default both before and
after giving effect to incurrence thereof, the Borrower and the Restricted
Subsidiaries may incur other unsecured Debt for Borrowed Money and/or Preferred
Stock not described in (a) through (g) above, provided that the aggregate
principal amount of all such Debt and Preferred Stock for the Borrower and the
Restricted Subsidiaries together is never in excess of $50,000,000 outstanding
at any one time, and
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(i) so long as there exists no Default or Event of Default both before and
after giving effect to incurrence thereof, the Borrower may acquire unsecured
Debt for Borrowed Money in connection with an acquisition permitted under
Section 8.18 hereof (the "Acquired Debt") so long as in each case (i) such
Acquired Debt was not incurred in anticipation of the acquisition by the
Borrower, (ii) the Borrower deposits in cash at the Administrative Agent an
amount equal to the principal amount of the Acquired Debt as collateral to
secure the Obligations hereunder (the "Cash Collateral"), (iii) the Borrower
executes a security agreement in form and substance reasonably acceptable to the
Administrative Agent and the Arranging Agents granting a lien and security
interest in the Cash Collateral to secure the Obligations of the Lenders
hereunder together with such other documentation, including, without limitation,
UCC-1 filings, as deemed reasonable by the Administrative Agent, (iv) the
Acquired Debt must remain the sole obligation of the acquired person and the
Borrower shall not, nor shall it permit any Restricted Subsidiary to, execute
any Guaranty of the Acquired Debt or otherwise become obligated in any manner
with respect to the Acquired Debt (pursuant to assumption, merger,
consolidation, operation of law or otherwise). Each Lender hereby authorizes
the Administrative Agent to release and return to the Borrower such portion of
any Cash Collateral upon the extinguishment of the related Acquired Debt.
8.03. Liens. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, create, assume, incur, permit or suffer to exist,
directly or indirectly, any Lien on any of its assets or Properties, whether now
owned or hereafter acquired, except (a) Permitted Liens, (b) so long as no
Default or Event of Default exists or would result from the incurrence of such
Lien, Liens securing Debt permitted to be incurred by Section 8.02(g) hereof
(and any Permitted Refinancing Indebtedness of such Debt), but only so long as
such Debt secured thereby shall not be increased and the Liens shall cover
Properties of the Borrower purchased with the proceeds of such Debt and shall
not cover additional assets of the Borrower or any such Restricted Subsidiary,
and (c) pre-existing Liens acquired by the Borrower or any Restricted Subsidiary
in connection with an acquisition permitted by Section 8.18 hereof and securing
Debt permitted to be incurred by Section 8.02(g) hereof. Except to the extent
that any such provision is contained in the Existing Financing Documentation,
the Borrower shall not, and shall not permit any Restricted Subsidiary of the
Borrower to, agree with any other Person that it shall not create, assume,
incur, permit or suffer to exist or to be created, assumed, incurred or
permitted to exist, directly or indirectly, any Lien on any of its assets or
Properties, provided that, with respect to Sections 8.02 (f) and (g) hereof, the
Borrower (or in the case of (g), any Restricted Subsidiary) may agree with any
such creditor to the prohibition of Liens on all Debt other than Liens securing
the Obligations (and any increase in the Obligations).
8.04. Investments. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, make any Investment, except that the Borrower and its
Restricted Subsidiaries may purchase or otherwise acquire and own:
(a) Marketable, direct obligations of, or guaranteed by, the United States
of America and maturing within 365 days of the date of purchase;
(b) Commercial paper maturing not more than 90 days after the date of
acquisition, issued by U.S. corporations (other than Affiliates of the Borrower)
that have a rating of A-2/P-1 or A-1/P-2 or better by Standard & Poor's Ratings
Group, a Division of McGraw-Hill, Inc. or Moody's Investors Service, Inc.;
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(c) time deposit accounts, certificates of deposit and money market
deposits maturing within 180 days of the date of acquisition thereof issued by a
bank or trust company which is organized under the laws of the United States of
America, any state thereof or any foreign country recognized by the United
States of America, and which bank or trust company has a capital surplus and
undivided profits aggregating in excess of $50,000,000 (or the foreign currency
equivalent thereof) and has outstanding debt which is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Exchange Act);
(d) securities with maturities of six months or less from the date of
acquisition, issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by an political subdivision or taxing
authority thereof, and rated at least "A" by Standard & Poor's Ratings Group, a
Division of McGraw-Hill, Inc. or "A" by Moody's Investors Service, Inc.;
(e) Investments constituting acquisitions permitted by Section 8.18 hereof,
(f) Investments and contractually committed future Investments that are in
existence on the Closing Date and described on Schedule 8.04 or Schedule 5.01(q)
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hereto; and
(g) in addition to all the other permitted Investments under this Section
8.04 and so long as there exists no Default or Event of Default both before and
after giving effect to such Investment, Permitted Investments;
(h) receivables owing to the Borrower or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(i) payroll, travel, commission and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business,
and prepaid expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar deposits made
in the ordinary course of business;
(j) loans or advances, or extensions of credit, to employees, directors,
distributors and sales agents made in the ordinary course of business consistent
with past practices of the Borrower or such Restricted Subsidiary;
(k) Investments held in trust by the Borrower or any Restricted Subsidiary
for the purpose of paying deferred compensation to its officers and employees;
(l) so long as there exists no Default or Event of Default both before and
immediately after giving effect to any such Investment, Investments in bonds,
notes, debentures and other securities received as a result of the Disposition
by the Borrower or any Restricted Subsidiary of any assets or Properties
permitted in accordance with the terms of Section 8.05 hereof, provided that the
aggregate amount of such Investments for the Borrower and its Restricted
Subsidiaries shall not exceed $25,000,000 at any one time outstanding; and
(m) Investments made in the ordinary course of business as partial payment
for constructing a network relating to a Telecommunications Business, including,
without limitation,
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the internet, internet protocol, web hosting and electronic commerce, not to
exceed in the aggregate an amount in excess of $10,000,000 outstanding at any
one time.
8.05. Liquidation, Disposition and Merger. The Borrower shall not, and
shall not permit any Restricted Subsidiary of the Borrower to, at any time:
(a) liquidate or dissolve itself (or suffer any liquidation or dissolution)
or otherwise wind up; or effect any Disposition of all or any part of its
assets, Properties or business other than:
(i) Permitted Asset Sales and the contribution of EUnet International
Limited and any other assets of the Borrower or any Restricted Subsidiary
contractually committed to be contributed by the Borrower to the KPNQwest
Joint Venture,
(ii) so long as (1) there exists no Event of Default both before and
after giving effect to any such Disposition, (2) there exists no Default
under Section 9.01(a) hereof both before and after giving effect to any
such Disposition, (3) the Administrative Agent has not received notice from
the Borrower in accordance with the terms of Section 7.04(b) hereof that an
event has occurred or a circumstance exists that is, or would reasonably be
expected to cause, a Material Adverse Change both before and after giving
effect to any such Disposition, and (4) the Borrower is in compliance with
the terms of Section 2.05 and Section 2.11 hereof:
(A) Dispositions of assets not constituting Capital Stock of
Material Subsidiaries with a Disposition price of less than
$15,000,000 for any one Disposition and less than an amount equal to
10% of the Consolidated Tangible Assets (determined on the date of
each such Disposition) in the aggregate for all such Dispositions from
the Closing Date through the date of such Disposition;
(B) sales of accounts receivable in accordance with the terms of
Section 8.12 hereof,
(C) any Restricted Subsidiary of the Borrower owned all or in
part by the Borrower or any Wholly Owned Restricted Subsidiary can be
dissolved , so long as the Borrower and each such Wholly Owned
Restricted Subsidiary owning any Capital Stock of such Restricted
Subsidiary acquires its proportionate part of such Restricted
Subsidiary's assets, provided that, so long as such dissolution is in
-------- ----
the ordinary course of business in accordance with the past practices
of the Borrower and is otherwise in compliance with this subsection
(C), such dissolution may occur during the existence of a Default or
Event of Default or after notice of the occurrence of a Material
Adverse Change,
(D) any Wholly Owned Restricted Subsidiary hereunder may Dispose
of assets, Property or business to the Borrower or any other Wholly
Owned Restricted Subsidiary or the Borrower, provided that, so long as
-------- ----
such Disposition is in the ordinary course of business in accordance
with the past practices of the Borrower and the Restricted
Subsidiaries and is otherwise in compliance with this subsection (D),
such Disposition may occur during the existence of a Default or Event
of Default or after notice of the occurrence of a Material Adverse
Change,
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(E) any Disposition by the Borrower and its Restricted
Subsidiaries of any of their non-domestic assets and Properties,
including without limitation (I) the 1,400-route-mile extension of the
U.S. network into Mexico, (II) the capacity on three undersea systems
linking its network to Europe, (III) the proposed 13, 125-mile-four-
fiber-pair submarine cable systems connecting the U.S. to Japan,
scheduled for completion by the second quarter of 2000 and (IV) all
transatlantic and transpacific cable capacity or systems.
(F) any Dispositions of fiber or IRU's in fiber or capacity and
the related transport and network equipment in accordance with the
terms of Section 8.17 hereof, and
(G) any fiber swaps and fiber exchanges of capacity, so long as
the Borrower is in compliance with the terms of Section 6.13 hereof;
and
(iii) any Investment of the Borrower or any Restricted Subsidiary
that is permitted by Section 8.04 hereof,
(b) enter into any merger or consolidation, except that, so long as there
exists no Default under Section 9.01(a) hereof or any Event of Default both
before and after giving effect to any such transaction, any Wholly Owned
Restricted Subsidiary of the Borrower can merge or consolidate into any other
Wholly Owned Restricted Subsidiary of the Borrower, provided that, so long as
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such merger or consolidation is in the ordinary course of business of the
Borrower and in accordance with the past practices of the Borrower and is
otherwise in compliance with this subsection (b), such merger or consolidation
may occur during the existence of a Default or Event of Default or after notice
of the occurrence of a Material Adverse Change, or
(c) enter into any merger or consolidation, except that, another Person may
be merged into the Borrower or any Restricted Subsidiary in connection with an
acquisition permitted under Section 8.18(d) hereof, so long as the Borrower or
any Restricted Subsidiary is the surviving corporation.
8.06. Guaranties; Contingent Liabilities. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, at any time make or issue any Guaranty,
or assume, be obligated with respect to, or permit to be outstanding any
Contingent Liabilities, except (a) pursuant to the Loan Papers, (b) Contingent
Liabilities in existence on the Closing Date and described on
Schedule 8.06 hereto, (c) Contingent Liabilities of the Borrower or its
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Restricted Subsidiaries with respect to surety bonds and similar instruments
incurred in the ordinary course of the Borrower's business and (d) Contingent
Liabilities permitted to be incurred under Section 8.02 hereof.
8.07. Restricted Payments. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly declare, make or pay any
Restricted Payment; provided, however
(a) any Restricted Subsidiary of the Borrower may declare, make and
pay Distributions to the Borrower or any other Restricted Subsidiary so
long as such Distribution is made proportionately to the ownership of the
Capital Stock of such Restricted Subsidiary;
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(b) so long as (i) there exists no Default or Event of Default both
before and after giving effect to any such Restricted Payment and (ii) the
Total Leverage Ratio is less than or equal to 4.00 to 1.00 both before and
after giving effect to any such Restricted Payment, the Borrower or any
Restricted Subsidiary may make any Restricted Payment not otherwise
prohibited by this Agreement (without reference to this Section 8.07) and
the Loan Papers;
(c) in addition to the permitted Restricted Payments described in
subparagraph (b) above, so long as (i) there exists no Default or Event of
Default both before and after giving effect to any such Restricted Payment
and (ii) the Borrower receives the prior written consent of the Arranging
Agents, the Borrower or any Restricted Subsidiary may repurchase its Debt
for Borrowed Money in a maximum aggregate amount over the term of this
Agreement of $200,000,000 (in addition to Permitted Refinancing
Indebtedness);
(d) so long as there exists no Default or Event of Default both before
and after giving effect to any such Restricted Payment, management and
consulting fees payable to Unrestricted Subsidiaries and other Affiliates
of the Borrower in an aggregate amount in any fiscal year not to exceed
$5,000,000;
(e) so long as there exists no Default or Event of Default both before
and after giving effect to any such Restricted Payment, the Borrower may
repurchase any shares of its common Capital Stock or options to acquire its
common Capital Stock from Persons who were formerly directors, officers or
employees of the Borrower or any of its Restricted Subsidiaries, provided
that the aggregate amount of all such repurchases made pursuant to this
subparagraph (e) for the Borrower and all of its Restricted Subsidiaries
shall not exceed $1,000,000 in any fiscal year;
(f) payments permitted to be made to Affiliates of the Borrower and
Unrestricted Subsidiaries in accordance with the terms of Section 8.04,
Section 8.08 and Section 8.16 hereof;
(g) so long as there exists no Default or Event of Default both before
and after giving effect to any such Restricted Payment, the Borrower and
its Restricted Subsidiaries may make required scheduled payments in
accordance with the terms of the Existing Financing Documentation and other
Debt permitted to be incurred or exist in accordance with the terms of
Section 8.02 hereof; and
(h) so long as there exists no Default or Event of Default both before
and after giving effect to any such Restricted Payment, the Borrower may
retire or repurchase any of its common Capital Stock in exchange for, or
with the proceeds of any issuance of, any common Capital Stock of the
Borrower issued in accordance with the terms of Section 8.10 hereof.
8.08. Affiliate Transactions. The Borrower shall not, and shall not permit
any of the Restricted Subsidiaries to, at any time engage in any transaction
with any of its Affiliates, nor make an assignment or other transfer of any of
its assets or Properties to any of its Affiliates (other than transactions among
the Borrower and its Wholly Owned Restricted Subsidiaries), on terms materially
less advantageous to the Borrower or any such Restricted Subsidiary than would
be the case if such transaction had been effected with a non-Affiliate, except
(a) as permitted by Section
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8.07 and Section 8.16 hereof and (b) those transactions described on Schedule
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8.08 hereof and transactions pursuant to employee compensation arrangements
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approved by the Board of Directors, provided that if the Board of Directors or
the board of directors of any Restricted Subsidiary, as applicable, determines
in good faith that no comparable transaction exists for purposes of making the
determination set forth above, then such board shall determine that the terms of
such transaction are fair and commercially reasonable and in the best interests
of the Borrower or the Restricted Subsidiary entering into such transaction.
8.09. Compliance with ERISA. The Borrower shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, or permit any
member of its Controlled Group to directly or indirectly, (a) terminate any Plan
so as to result in any liability to the Borrower or any member of its Controlled
Group which would reasonably be expected to result in a liability to the
Borrower or any Restricted Subsidiary in excess of $10,000,000, (b) permit to
exist any ERISA Event, or any other event or condition which presents the risk
of liability of the Borrower or any member of its Controlled Group that would
reasonably be expected to result in a liability to the Borrower or any
Restricted Subsidiary in excess of $10,000,000, (c) make a complete or partial
withdrawal (within the meaning of Section 4201 of ERISA) from any Multiemployer
Plan so as to result in any liability to the Borrower or any member of its
Controlled Group that is would reasonably be expected to be in excess of
$10,000,000, (d) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder except in the ordinary course of business
consistent with past practice which would result in any liability to the
Borrower, or any member of its Controlled Group that is or would reasonably be
expected to be in excess of $10,000,000, or (e) permit the present value of all
benefit liabilities, as defined in Title IV of ERISA, under each Plan of the
Borrower or any member of its Controlled Group (using the actuarial assumptions
set forth in the Plan) to exceed the fair market value of Plan assets allocable
to such benefits all determined as of the most recent valuation date for each
such Plan on an ongoing plan basis, by an amount that is or would reasonably be
expected to be in excess of $10,000,000.
8.10. Capital Stock. The Borrower shall not, and shall not permit any
Restricted Subsidiary to (a) make or permit any transfer, assignment,
distribution, mortgage, pledge or gift of any shares of Capital Stock of any
Restricted Subsidiary, except to the Borrower or another Wholly Owned Restricted
Subsidiary, or except in accordance with the terms of Section 8.05(a) hereof and
(b) issue any Capital Stock other than (i) so long as there exists no Event of
Default both before and after giving effect to such issuance, common Capital
Stock issued by the Borrower, (ii) so long as there exists no Default or Event
of Default both before and after giving effect to such issuance, common Capital
Stock issued by any Restricted Subsidiary, so long as such Capital Stock is
issued to the Borrower or another Wholly Owned Restricted Subsidiary or to any
Restricted Subsidiary so long as the Borrower's indirect ownership in such
Restricted Subsidiary issuing such Capital Stock is not diluted and (iii) so
long as there exists no Default or Event of Default both before and after giving
effect to such issuance, Preferred Stock of the Borrower in accordance with the
terms of Section 8.02 hereof.
8.11. Sale and Leaseback. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, enter into any arrangement whereby it consummates any
Disposition of any of its assets, and thereafter rents or leases back assets
(each a "Sale and Leaseback Transaction"), provided that, if there exists no
Default or Event of Default both before and after giving effect to both the
Disposition and the leaseback, the Borrower and/or its Restricted Subsidiaries
may enter into Sale and Leaseback Transactions (a) among the Borrower and its
Wholly Owned Restricted Subsidiaries
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and (b) so long as the Borrower and its Restricted Subsidiaries comply fully
with Sections 2.05(a), 2.11(b) and 8.05(a) hereof, with other Persons.
8.12. Sale or Discount of Receivables. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly sell, with or
without recourse, for discount or otherwise, any notes or accounts receivable
other than in the ordinary course of business in accordance with past practices
of collection, provided that, so long as there exists no Default or Event of
Default both before and after giving effect to each such sale, if the Total
Leverage Ratio is less than 4.00 to 1.00 both before and after giving effect to
any such sale, the Borrower and its Restricted Subsidiaries may sell accounts
receivable on a non recourse basis, in an aggregate amount not to exceed
$200,000,000 in accounts sold and outstanding at any one time.
8.13. Limitation on Restrictive Agreements. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, enter into any indenture,
agreement, instrument, financing document or other arrangement which, directly
or indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon: (a) the acceptance
of a waiver or consent with respect to any term or provision of this Agreement
or any other Loan Paper, or (b) amending, extending, increasing or substituting
any provision of this Agreement or any Loan Paper, provided that, nothing in
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this Section 8.13 shall limit the ability of the Borrower or any Restricted
Subsidiary to enter into agreements which have the effect of prohibiting,
restraining or conditioning their ability to amend, extend, increase or
substitute any provision of this Agreement or any Loan Paper solely as a result
of general covenants regarding debt limitations, financial ratios or other
general restrictive covenants.
8.14. Amendment of Material Agreements. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, amend, waive or consent to any
deviation from any provision of any documentation or agreements of the (i)
articles of incorporation of the Borrower and the Restricted Subsidiaries and
(ii) by laws and other organizational documents in any manner with respect to
both (i) and (ii) foregoing that is both material and adverse to the interests
of the Lenders. The Borrower shall not, nor shall it permit any of its
Restricted Subsidiaries to, amend or change (or take any action or fail to take
any action the result of which is an effective amendment or change) or accept
any waiver or consent with respect to, any of the Existing Financing
Documentation, or any other document or instrument that would result in (a) an
increase in the outstanding principal amount of any of the Existing Financing,
(b) any increase in any principal, interest, fees, or other amounts payable
under any of the Existing Financing, (c) a change in any date fixed for any
payment of principal, interest, fees, or other amounts payable under any of the
Existing Financing Documentation (including, without limitation, as a result of
any redemption, and including without limitation a waiver or action that results
in the waiver of any payment default under any of the Existing Financing), (d) a
decrease in any percentage of holders of any of the Existing Financing required
under the terms of the Existing Financing Documentation, respectively, to take
(or refrain from taking) any action, (e) a more restrictive change in any
financial covenant in the Existing Financing Documentation, (f) a change in any
remedy or right of the holders of the any of the Existing Financing, (g) a
change in the definition of "Change of Control" in any of the Existing Financing
Documentation, (h) a change in any covenant, term or provision in the Existing
Financing Documentation which would result in such term or provision being more
restrictive than the terms of this Agreement and the Loan Papers, or (i) a
change in any term or provision of the Existing Financing Documentation or other
document or instrument in connection therewith that would have, in any material
respect, an adverse effect on the interests of the Lenders.
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8.15. Name Changes. The Borrower shall not, and shall not permit any
Restricted Subsidiary of the Borrower to, change its name without prior written
notice to the Administrative Agent, provided that this Section 8.15 shall not
prohibit the Borrower or any of its Restricted Subsidiaries from operating under
any trade names or assumed names.
8.16. Unrestricted Subsidiaries. Except for those transactions listed on
Schedule 8.16 hereto, the Borrower shall not, and shall not permit any
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Restricted Subsidiary to, contribute any equity, make any loan, advance or other
investment in, or otherwise conduct any business with, any Unrestricted
Subsidiary, except (a) in accordance with the terms and conditions of Sections
8.04 and 8.07 hereof, and (b) with respect to market service agreements and
other market arrangements that are negotiated in good faith on terms and
conditions substantially similar to those of comparable arrangements with
unaffiliated Persons negotiated at arm's length.
8.17. Limitation on IRU Agreements. The Borrower shall not, and shall not
permit any Restricted Subsidiary to, enter into an IRU Agreement granting an IRU
to any Person other than to the Borrower or any Restricted Subsidiary, provided
that (a) the Borrower or any Restricted Subsidiary may enter into an IRU
Agreement granting an IRU to any Person (other than the Borrower or any
Restricted Subsidiary), so long as in each case (i) there exists no Default or
Event of Default at the time such IRU Agreement is entered into and (ii) the
Borrower is in compliance with Section 6.13 hereof, and (b) so long as there
exists no Default or Event of Default both before and after entering into such
IRU Agreement, the Borrower or any Restricted Subsidiary may enter into an IRU
Agreement granting IRU's with respect to the existing fiber and related
transport and network equipment of LCI International Inc. and its Subsidiaries
8.18. Acquisitions, Creation of Subsidiaries. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, acquire any assets, Property or
business of any other Person, or participate in any joint venture, or create or
acquire any Subsidiary, except
(a) assets and Property acquired in the ordinary course of business,
(b) so long as there exists no Default under Section 9.01(a) hereof
or any Event of Default both before and after giving effect to any such
acquisition, the Borrower or any Wholly Owned Restricted Subsidiary may
acquire assets, Property or business from any other Wholly Owned Restricted
Subsidiary,
(c) acquisitions constituting Investments that are permitted by
Section 8.04 hereof,
(d) the Borrower or any Restricted Subsidiary may consummate
Permitted Acquisitions, so long as in each case (1) there exists no Event
of Default both before and after giving effect to any such acquisition, (2)
there exists no Default under Section 9.01(a) hereof both before and after
giving effect to any such acquisition, and (3) the Administrative Agent has
not received notice from the Borrower in accordance with the terms of
Section 7.04(b) hereof that an event has occurred or a circumstance exists
that is, or would reasonably be expected to cause, a Material Adverse
Change both before and after giving effect to any such acquisition
(provided that, if such an event or circumstance that is, or would
--------- ----
reasonably be expected to cause, a Material Adverse Change has occurred,
then such proposed acquisition may still be consummated if (x) the purchase
price of the proposed
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acquisition is paid exclusively with the common Capital Stock of the
Borrower and such proposed Person to be acquired has zero negative
annualized operating cash flow) and
(i) in the event that either (1) the Total Leverage Ratio is
more than 4.00 to 1.00 before or after giving effect to any proposed
acquisition, or (2) the proposed acquisition has a cash purchase price
of over $100,000,000, or (3) the proposed Person to be acquired has more
than $50,000,000 of negative annualized operating cash flow, then the
Borrower shall have satisfied the following conditions precedent to such
acquisition:
(A) the Administrative Agent shall have received prior
written notice on timing reasonable under the circumstances
describing the proposed acquisition in form reasonably acceptable
to the Administrative Agent,
(B) the Borrower shall have confirmed in writing to the
Administrative Agent that (I) the proposed acquisition conforms
to the definition of Permitted Acquisitions and (II) the
Borrower's projections made in good faith after giving effect to
the proposed acquisition evidence pro forma compliance with the
terms of Section 8.01 hereof from the date of such acquisition
through the Maturity Date and the attached pro forma Compliance
Certificate was prepared in good faith, or
(ii) in the event that the preceding subparagraph (i) is not
applicable to any such Permitted Acquisition, or notwithstanding the
preceding paragraph (i), in the event that the Total Leverage Ratio is
greater than 4.00 to 1.00 but the proposed acquisition is a Minor
Acquisition, then the Borrower need only confirm in writing to the
Administrative Agent on its next delivered Compliance Certificate in
accordance with the terms of Section 7.03 hereof with respect to each
such Permitted Acquisition consummated in such fiscal quarter that is
not disclosed in accordance with the terms of (i) preceding, that (A)
such acquisition conformed to the definition of Permitted Acquisitions
and (B) all of the conditions set forth in subparagraph (d)(1), (2) and
(3) above were satisfied in accordance with the terms thereof, and
(e) The Borrower or any Restricted Subsidiary may consummate acquisitions
of wholly owned Unrestricted Subsidiaries, so long as in each case there exists
no Default or Event of Default both immediately before and after giving effect
to any such acquisition, and
(i) in the event that either (1) the Total Leverage Ratio is
more than 4.00 to 1.00 before or after giving effect to any proposed
acquisition, or (2) the proposed acquisition has a cash purchase price of
over $100,000,000, or (3) the proposed Person to be acquired has more than
$50,000,000 of negative annualized operating cash flow, then the Borrower
shall have satisfied the following conditions precedent to such
acquisition:
(A) the Administrative Agent shall have received prior
written notice on timing reasonable under the circumstances
describing the proposed acquisition in form reasonably acceptable
to the Administrative Agent,
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(B) the Borrower shall have confirmed in writing to the
Administrative Agent that (I) the Borrower has not delivered
notice to the Administrative Agent in accordance with the terms
of Section 7.04(b) hereof that an event has occurred or a
circumstance exists that is, or would reasonably be expected to
cause, a Material Adverse Change both before and after giving
effect to any such acquisition and (II) the Borrower's
projections made in good faith after giving effect to the
proposed acquisition evidence pro forma compliance with the terms
of Section 8.01 hereof from the date of such acquisition through
the Maturity Date and the attached pro forma Compliance
Certificate was prepared in good faith, or
(ii) in the event that the preceding subparagraph (i) is not
applicable to any such acquisition of a wholly owned Unrestricted
Subsidiary or notwithstanding the preceding paragraph (i), in the
event that the Total Leverage Ratio is greater than 4.00 to 1.00 but
the proposed acquisition is a Minor Acquisition, then the Borrower
need only confirm in writing to the Administrative Agent on its next
delivered Compliance Certificate in accordance with the terms of
Section 7.03 hereof with respect to each such acquisition of a wholly
owned Unrestricted Subsidiary consummated in such fiscal quarter that
is not disclosed in accordance with the terms of (i) preceding, that
no Default or Event of Default existed both immediately prior to and
after giving effect to any such acquisition.
For the purposes of this Section 8.18, a "Minor Acquisition" shall mean one
or more acquisitions by the Borrower and its Restricted Subsidiaries
consummated in any fiscal quarter (a) that have purchase prices not
exceeding $25,000,000 in the aggregate for all such acquisitions and (b) of
any Person or Persons which in the aggregate do not have in excess of
$10,000,000 of negative annualized operating cash flow.
ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default. Any one or more of the following shall be an
"Event of Default" hereunder, if the same shall occur for any reason whatsoever,
whether voluntary or involuntary, by operation of Law, or otherwise:
(a) The Borrower shall fail to pay any (i) principal payable under any Loan
Paper on the date due; or (ii) interest, commitment fees or letter of credit
fees payable within three Business Days of the due date thereof; or (iii) other
fees or other amounts that are due and payable within 30 days of the due date
thereof;
(b) Any representation or warranty made or deemed made by any Obligor or
any Restricted Subsidiary under or in connection with any Loan Paper shall prove
to have been incorrect in any material respect when made or deemed made,
(c) The Borrower shall fail to perform or observe in any material respect
any term or covenant contained in Section 7.05 hereof or in any Section of
Article VIII hereof, provided that notwithstanding the foregoing (i) any such
-------- ----
failure to perform or observe any term or covenant contained in Sections 8.04,
8.08, 8.14 and 8.15 hereof shall not constitute an Event of Default until
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the fifth day after such failure and (ii) any such failure to perform or observe
any term or covenant contained in Section 8.03 hereof as a result of any filing
of any UCC-1 that does not secure Debt for Borrowed Money shall not constitute
an Event of Default until the fifth day after such failure;
(d) Any Obligor or Restricted Subsidiary shall fail to perform or observe
in any material respect any other term or covenant contained in this Agreement
or any other Loan Paper, other than those described in Sections 9.01(a), (b) and
(c) above, and such failure shall not be remedied within thirty days following
the earlier of an Authorized Officer's knowledge of such failure or notice from
the Administrative Agent or any other Arranging Agent of the occurrence of such
failure;
(e) Any of the following shall occur: (i) Any Material Loan Document or
material provision thereof shall, for any reason, not be valid and binding on
the Obligor or Restricted Subsidiary signatory thereto, or not be in full force
and effect, or shall be declared to be null and void, other than as a result of
the action or inaction on the part of the Administrative Agent or any Lender, or
(ii) the validity or enforceability of any Material Loan Document shall be
contested by any Obligor, Restricted Subsidiary, any Unrestricted Subsidiary or
any Affiliate of the Borrower and its Subsidiaries; or (iii) any Obligor or
Restricted Subsidiary shall deny in writing that it has any or further liability
or obligation under its respective Material Loan Document; or (iv) any default
or breach under any provision of any Material Loan Document shall continue after
the applicable grace period, if any, specified in such Material Loan Document;
(f) Any of the following shall occur: (i) the Borrower or any of its
Restricted Subsidiaries shall make an assignment for the benefit of creditors or
be unable to pay its debts generally as they become due; (ii) the Borrower or
any of its Restricted Subsidiaries shall petition or apply to any Tribunal for
the appointment of a trustee, receiver, or liquidator of it, or of any
substantial part of its assets, or shall commence any proceedings relating to
the Borrower or any of its Restricted Subsidiaries under any Debtor Relief Laws;
(iii) any such petition or application shall be filed, or any such proceedings
shall be commenced, against the Borrower or any of its Restricted Subsidiaries,
or an order, judgment or decree shall be entered appointing any such trustee,
receiver, or liquidator, or approving the petition in any such proceedings, and
such petition or application shall be consented to or uncontested by the
Borrower or such Restricted Subsidiary, or if contested by the Borrower or such
Restricted Subsidiary, shall not be dismissed within 60 days following the
filing of such petition or application; (iv) any final order, judgment, or
decree shall be entered in any proceedings against the Borrower or any of its
Restricted Subsidiaries decreeing its dissolution, other than for a Restricted
Subsidiary that is not a Material Subsidiary as part of a voluntary dissolution;
or (v) any final order, judgment, or decree shall be entered in any proceedings
against the Borrower or any of its Restricted Subsidiaries decreeing its split-
up which requires the divestiture of a substantial part of its assets;
(g) Any of the following shall occur: (i) The Borrower or any Restricted
Subsidiary of the Borrower shall fail to pay any Debt for Borrowed Money (other
than Debt under the Loan Papers) in an aggregate amount of $25,000,000 or more
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such
Debt; or (ii) the Borrower or any Restricted Subsidiary of the Borrower shall
fail to perform or observe any term or covenant contained in any agreement or
instrument relating to any such Debt for Borrowed Money, when required to be
performed or observed, and such failure shall continue after the applicable
grace period, if any, specified in such agreement or instrument, and can result
in acceleration of the maturity of such Debt; or (iii) any such Debt shall be
declared to be due and
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payable, or required to be prepaid, mandatorily redeemed or repurchased (other
than by a regularly scheduled required prepayment), prior to the stated maturity
thereof;
(h) (i) Any Obligor or Restricted Subsidiary shall have any material
final judgment(s) outstanding against it, and such judgment(s) shall remain
unstayed, in effect, and unpaid for the period of time after which the judgment
holder may cause the creation of Liens against or seizure of any of its
Property; or (ii) Any Litigation commenced against the Borrower or any of its
Restricted Subsidiaries is adversely determined by a court of applicable
jurisdiction, which such Litigation is either non-appealable or which such
Obligor or Restricted Subsidiary has elected not to appeal, except in either
case, any such Litigation which has not had, and would not reasonably be
expected to have, a Material Adverse Effect; or (iii) Any civil action or state
criminal action shall be commenced against the Borrower or any of its Restricted
Subsidiaries under any federal or state racketeering statute (including, without
limitation, the Racketeer Influenced and Corrupt Organization Act of
1970)("RICO") and such action shall be adversely determined by a court of
applicable jurisdiction, and which such determination is either non-appealable
or which the Borrower or such Restricted Subsidiary has elected not to appeal;
or any criminal action or proceeding shall be commenced against the Borrower or
any of its Restricted Subsidiaries under any federal racketeering statute
(including, without limitation, RICO);
(i) Any of the following shall have occurred: (i) Any ERISA Event shall
have occurred with respect to a Plan of the Borrower or any Restricted
Subsidiary of the Borrower, and the sum of the Insufficiency of such Plan and
liabilities relating thereto is equal to or greater than $10,000,000 or (ii) the
Borrower, the Restricted Subsidiaries of the Borrower or any ERISA Affiliate of
any of them shall have committed a failure described in Section 302(f)(l) of
ERISA, and the amount determined under Section 302(f)(3) of ERISA is equal to or
greater than $10,000,000;
(j) The Borrower or any ERISA Affiliate of the Borrower shall have been
notified by the sponsor of a Multiemployer Plan that (A) it has incurred
Withdrawal Liability to such Plan in an amount that exceeds $10,000,000 or
requires payments exceeding $10,000,000 per annum, or (B) such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result thereof the aggregate annual contributions to all
Multiemployer Plans in reorganization or being terminated is increased over the
amounts contributed to such Multiemployer Plans for the preceding Multiemployer
Plan year by an amount exceeding $10,000,000;
(k) Any of the Borrower or any of its Restricted Subsidiaries shall be
required under any Environmental Law (i) to implement any remedial,
neutralization, or stabilization process or program, other than any such process
or program the cost of which has not had, and would not reasonably be expected
to have, a Material Adverse Effect, or (ii) to pay any penalty, fine, or
damages, except for any such penalty, fine or damages which in an aggregate
amount has not had, and which would not reasonably be expected to have, a
Material Adverse Effect;
(l) Any of the following shall have occurred: (i) Any property or assets
(whether leased or owned), or the operations conducted thereon by any of the
Borrower or any of its Restricted Subsidiaries, or any current or prior owner or
operator thereof (in the case of real Property), shall violate or have violated
any applicable Environmental Law, except any such violation which has not had,
and would not reasonably be expected to have, a Material Adverse Effect; or
(ii) the Borrower or such Restricted Subsidiary shall not obtain or maintain any
License required to be obtained or filed under any Environmental Law in
connection with the use of such Property and assets, including
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without limitation past or present treatment, storage, disposal, or release of
Hazardous Materials into the environment, except those failures to obtain or
maintain the same which have not had, and would not reasonably be expected to
have, a Material Adverse Effect;
(m) Any of the following shall have occurred if the effect thereof has had,
or would reasonably be expected to have, a Material Adverse Effect: (i) A final
non-appealable order is issued by any Tribunal, including, but not limited to,
the FCC, any applicable PUC, or the United States Justice Department, requiring
any Obligor or Restricted Subsidiary to divest a portion of its assets pursuant
to any antitrust, restraint of trade, unfair competition, industry regulation,
or similar Laws, or (ii) any Tribunal shall condemn, seize, or otherwise
appropriate, or take custody or control of all or any portion of the assets of
the Borrower or any of its Restricted Subsidiaries, or (iii) any License or
Licenses whether presently existing or hereafter granted to or obtained by the
Borrower or any of its Restricted Subsidiaries shall expire without renewal or
be suspended or revoked, or (iv) the Borrower or any of its Restricted
Subsidiaries shall become subject to any injunction or other order affecting or
which may affect the Borrower's or any of its Restricted Subsidiary's present or
proposed operations under any such License or Licenses;
(n) The Borrower or any Restricted Subsidiary of the Borrower shall fail to
comply in any respect with the Communications Act, or any rule or regulation
promulgated by the FCC or any applicable PUC, except any such failure that has
not had, and would not reasonably be expected to have, a Material Adverse
Effect;
(o) There shall occur a Change of Control or a Specified Change of Control;
(p) Any Substantial Portion shall not, for any reason (including, without
limitation, loss of FCC License or otherwise) be operating for a period in
excess of 30 days. For purposes of this Section 9.01(p), "Substantial Portion"
means any portion of the Backbone, the failure of which to operate will have the
effect of reducing consolidated Operating Cash Flow for the Borrower and its
Restricted Subsidiaries by more than ten percent (determined by the most
recently completed 12 month period); or
(q) The occurrence of any (i) "Event of Default" or "Default" as defined in
any of the Existing Financing Documentation or (ii) Repayment Event with respect
to any of the Existing Financing or any other Debt for Borrowed Money in excess
of $25,000,000.
9.02. Remedies upon Default. If an Event of Default described in Section
9.01(f) shall occur, the aggregate unpaid principal balance of and accrued
interest on all Advances and all other Obligations shall, to the extent
permitted by applicable Law, thereupon become due and payable concurrently
therewith, and the Commitment shall be concurrently automatically reduced to
zero and terminated, all without any action by Administrative Agent or any
Lender, and without diligence, presentment, demand, protest, notice of protest
or intent to accelerate, or notice of any other kind, all of which are hereby
expressly waived. Subject to the foregoing sentence, if any Event of Default
shall occur and be continuing, Administrative Agent may at its election, and
shall at the direction of Majority Lenders, do any one or more of the following:
(a) Declare the entire unpaid balance of all Obligations immediately due
and payable, whereupon it shall be due and payable without diligence,
presentment, demand, protest, notice of protest or intent to accelerate, or
notice of any other kind (except notices specifically provided for
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under Section 9.01 hereof), all of which are hereby expressly waived (except to
the extent waiver of the foregoing is not permitted by applicable Law);
(b) Terminate any of the Revolver A Commitment, the Working Line Commitment
or the Revolver B Commitment, or terminate all of the Commitments;
(c) Reduce any claim of Administrative Agent and Lenders to judgment;
(d) Demand (and the Borrower shall pay to Administrative Agent) immediately
upon demand and in immediately available funds, the amount equal to the
aggregate amount of the Letters of Credit then outstanding as cash collateral,
irrespective of whether such Letters of Credit have been drawn upon, all as set
forth and in accordance with the terms of provisions of Article III hereof. The
Administrative Agent shall promptly advise the Borrower of any such declaration
or demand but failure to do so shall not impair the effect of such declaration
or demand; and
(e) Exercise any Rights afforded under any Loan Papers, by Law, including
but not limited to the UCC, at equity, or otherwise.
9.03. Cumulative Rights. All Rights available to Administrative Agent and
Lenders under the Loan Papers shall be cumulative of and in addition to all
other Rights granted thereto at Law or in equity, whether or not amounts owing
thereunder shall be due and payable, and whether or not the Administrative Agent
or any Lender shall have instituted any suit for collection or other action in
connection with the Loan Papers.
9.04. Waivers. The acceptance by Administrative Agent or any Lender at any
time and from time to time of partial payment of any amount owing under any Loan
Papers shall not be deemed to be a waiver of any Default or Event of Default
then existing. No waiver by Administrative Agent or any Lender of any Default or
Event of Default shall be deemed to be a waiver of any Default or Event of
Default other than such Default or Event of Default. No delay or omission by
Administrative Agent or any Lender in exercising any Right under the Loan Papers
shall impair such Right or be construed as a waiver thereof or an acquiescence
therein, nor shall any single or partial exercise of any such Right preclude
other or further exercise thereof, or the exercise of any other Right under the
Loan Papers or otherwise.
9.05. Performance by Administrative Agent or any Lender. Should any
covenant of any Obligor or Restricted Subsidiary fail to be performed in
accordance with the terms of the Loan Papers, Administrative Agent may, at its
option, perform or attempt to perform such covenant on behalf of such Obligor or
Restricted Subsidiary. Notwithstanding the foregoing, it is expressly
understood that the Administrative Agent does not assume, and shall not ever
have, except by express written consent of the Administrative Agent, any
liability or responsibility for the performance of any duties or covenants of
any Obligor or Restricted Subsidiary.
9.06. Expenditures. The Borrower shall reimburse Administrative Agent for
any reasonable sums spent by it in connection with the exercise of any Right
under Section 9.05 hereof. Such sums shall bear interest at the lesser of (a)
the Base Rate (whether or not in effect), plus 2.00% per annum and (b) the
Highest Lawful Rate, from 15 days after the date the Administrative Agent makes
demand to the Borrower for reimbursement of such amount until the date of
repayment by the Borrower.
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9.07. Control. None of the covenants or other provisions contained in
this Agreement shall, or shall be deemed to, give Administrative Agent or any
Lender any Rights to exercise control over the affairs and/or management of any
of the Borrower or any of its Subsidiaries being limited to the Rights to
exercise the remedies provided in this Article; provided, however, that if
-------- -------
Administrative Agent or any Lender becomes the owner of any partnership, stock
or other equity interest in any Person, whether through foreclosure or
otherwise, it shall be entitled to exercise such legal Rights as it may have by
being an owner of such stock or other equity interest in such Person.
ARTICLE X. THE ADMINISTRATIVE AGENT
10.01. Authorization and Action. Each Lender hereby appoints and
authorizes Administrative Agent to take such action as Administrative Agent
deems necessary on its behalf and to exercise such powers under this Agreement
and the other Loan Papers as are delegated to the Administrative Agent by the
terms of the Loan Papers, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement and the
other Loan Papers (including without limitation enforcement or collection of the
Notes), Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of Majority Lenders (or all Lenders, if required under Section
11.01 hereof), and such instructions shall be binding upon all Lenders;
provided, however, that Administrative Agent shall not be required to take any
- -------- -------
action which exposes Administrative Agent to personal liability or which is
contrary to any Loan Papers or applicable Law. Administrative Agent agrees to
give to each Lender (a) notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement, (b) copies of all information delivered
to the Administrative Agent in accordance with the terms of Sections 7.01, 7.02
and 7.03 hereof and (c) to promptly distribute to each applicable Lender in like
funds all amounts delivered to Administrative Agent by the Borrower for the
individual account of any Lender pro rata in accordance with the Applicable
Specified Percentage, as set forth in this Agreement. Functions of the
Administrative Agent are administerial in nature and in no event shall the
Administrative Agent have a fiduciary or trustee relationship in respect of any
Lender by reason of this Agreement or any other Loan Paper.
10.02. Administrative Agent's Reliance, Etc. Neither Administrative Agent,
nor any of its directors, officers, agents, employees, or representatives shall
be liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Loan Paper, except for its or their
own gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, Administrative Agent (a) may treat the payee of any Note as
the holder thereof until Administrative Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
Administrative Agent; (b) may consult with legal counsel (including counsel for
the Borrower or any of the Restricted Subsidiaries), independent public
accountants, and other experts reasonably selected by it, and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants, or experts; (c) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties, or representations made in or in
connection with this Agreement or any other Loan Papers; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants, or conditions of this Agreement or any other Loan Papers
on the part of the Borrower or the Restricted Subsidiaries or to inspect the
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Property (including the books and records) of the Borrower or its Subsidiaries;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency, or value of this Agreement,
any other Loan Papers, or any other instrument or document furnished pursuant
hereto; and (f) shall incur no liability under or in respect of this Agreement
or any other Loan Papers by acting upon any notice, consent, certificate, or
other instrument or writing believed by it to be genuine and signed or sent by
the proper party or parties.
10.03. NationsBank, N.A. and Affiliates. With respect to its Revolver A
Commitment, Working Line Commitment, Swingline Commitment, Revolver B
Commitment, its Advances, and any Loan Papers, NationsBank, N.A. has the same
Rights under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Agent. NationsBank, N.A. and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, any Obligor, any Restricted
Subsidiary, any Affiliate thereof, and any Person who may do business therewith,
all as if NationsBank, N.A. were not Administrative Agent and without any duty
to account therefor to any Lender, including, without limitation, the TROL
Transaction.
10.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Administrative Agent or any other
Lender, and based on the financial statements referred to in Section 5.01(j),
Section 7.01 and Section 7.02 hereof and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Papers.
10.05. Indemnification by Lenders. Lenders shall indemnify Administrative
Agent, pro rata in accordance with each Lender's Total Specified Percentage,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable costs and expenses, or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against Administrative Agent in any way relating to or arising
out of any Loan Papers or any action taken or omitted by Administrative Agent
thereunder, including any negligence of Administrative Agent; provided, however,
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that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from Administrative Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, Lenders shall reimburse
Administrative Agent, pro rata in accordance with each Lender's Total Specified
Percentage, promptly upon demand for any out-of-pocket expenses (including
reasonable attorneys' fees) incurred by Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment,
or enforcement (whether through negotiation, legal proceedings or otherwise) of,
or legal and other advice in respect of rights or responsibilities under, the
Loan Papers. The indemnity provided in this Section 10.05 shall survive the
termination of this Agreement.
10.06. Successor Administrative Agent. Administrative Agent may resign at
any time by giving 30 days written notice thereof to Lenders and the Borrower,
and may be removed at any time with or without cause by the action of all of the
Lenders (other than Administrative Agent, if it is a Lender). If the
Administrative Agent also then serves in the capacity of the Swingline Bank or
the Letter of Credit issuing bank, such resignation or removal shall constitute
resignation or removal of
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the Swingline Bank and the Administrative Agent in its capacity of Letter of
Credit issuing bank and the successor Administrative Agent shall serve in the
capacity of the Swingline Bank and the Letter of Credit issuing bank, provided
that, the Administrative Agent agrees that if it voluntarily resigns as
Administrative Agent, the Borrower shall have up to 180 days to reissue the
existing Letters of Credit. Upon any such resignation or removal, Majority
Lenders shall have the right to appoint a successor Administrative Agent with
the prior written consent of the Borrower (which shall not be unreasonably
withheld), provided that, if there exists an Event of Default that is
continuing, no consent of the Borrower shall be required. If no successor
Administrative Agent shall have been so appointed and shall have accepted such
appointment within thirty days after the retiring Administrative Agent's giving
of notice of resignation, then the retiring Administrative Agent may, on behalf
of Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the Laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the Rights and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under the Loan Papers,
provided that if the retiring or removed Administrative Agent is unable to
appoint a successor Administrative Agent, Administrative Agent shall, after the
expiration of a sixty day period from the date of notice, be relieved of all
obligations as Administrative Agent hereunder. Notwithstanding any
Administrative Agent's resignation or removal hereunder, the provisions of this
Article shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Papers, nor consent to any departure by the
Borrower or any Obligor or Restricted Subsidiary therefrom, shall be effective
unless the same shall be in writing and signed by the Borrower and the
Administrative Agent with the consent of the Majority Lenders, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver,
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or consent shall (and the result of action or failure to take action shall not)
unless in writing and signed by the Administrative Agent with the consent of all
of the Lenders, (a) increase the Revolver A Commitment, the Working Line
Commitment or the Revolver B Commitment, (b) reduce any principal, interest,
fees, or other scheduled amounts payable hereunder (including mandatory
prepayments under Section 2.05 hereof), or waive or result in the waiver of any
Event of Default under Section 9.01(a) hereof, (c) postpone any date fixed for
any scheduled payment of principal, interest, fees, or other amounts payable
hereunder, (d) release or materially impair the value of any collateral or
guaranties securing any Obligor's or Restricted Subsidiary's obligations
hereunder, other than releases contemplated hereby and by the other Loan Papers,
(e) change the meaning of "Total Specified Percentage", "Revolver A Specified
Percentage", "Working Line Specified Percentage" or "Revolver B Specified
Percentage", or the number of Lenders required to take any action hereunder,
change the definitions of "Commitment", "Revolver A Commitment", "Revolver B
Commitment", "Working Line Commitment", "Maturity Date", "Majority Lenders",
"SuperMajority Lenders" or "Letter of Credit Commitment", other than to correct
any technical errors or conforming changes to any such definition or (f) amend
this Section 11.01. No amendment, waiver, or consent shall affect the Rights or
duties of Administrative Agent under any Loan Papers, unless it is in writing
and signed by
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Administrative Agent in addition to the requisite number of Lenders. No
amendment, waiver, or consent shall affect the Rights or duties of Swingline
Bank under any Loan Papers, unless it is in writing and signed by the Swingline
Bank in addition to the requisite number of Lenders.
11.02. Notices.
(a) Manner of Delivery. All notices to be given or delivered under the Loan
Papers shall, except in those cases where giving notice by telephone is
expressly permitted, be given or delivered in writing. All written notices shall
be sent by registered or certified mail, postage prepaid, return receipt
requested, by telecopier, or delivered by hand or overnight courier. In the
event of a discrepancy between any telephonic notice and any written
confirmation thereof, such written confirmation shall be deemed the effective
notice except to the extent Administrative Agent, any Lender or the Borrower has
acted in reliance on such telephonic notice.
(b) Addresses. All notices, communications and materials to be given or
delivered pursuant to this Agreement shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
(i) If to the Borrower or any Restricted Subsidiary:
Qwest Communications International Inc.
555 Seventeenth Street, Suite 700
Denver, CO 80202
Telephone No.: (303) 992-2003
Telecopier No.: (303) 992-1198
Attention: Mr. Steve Shoemaker
Treasurer
and
Telephone No.: (303) 992-3300
Telecopier No.: (303) 992-1044
Attention: Drake S. Tempest, Esq.
Executive Vice President and General
Counsel
With copies to (which is not required for effective delivery as set
forth above):
Holme Roberts & Owen LLP
Suite 4100, 1700 Lincoln
Denver, CO 80203
Telephone No.: (303) 861-7000
Facsimile No.: (303) 866-0200
Attention: Martha Collins Rolle, Esq.
(ii) If to Administrative Agent:
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NationsBank, N.A.
NationsBank Plaza
901 Main Street, 64th Floor
Dallas, Texas 75202
Telephone No.: (214) 508-0157
Telecopier No.: (214) 508-9390
Attention: Anthony M. Cacheria
Senior Vice President
With a copy to (which is not required for effective delivery as set forth
above):
Donohoe, Jameson & Carroll, P.C.
3400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Telephone No.: (214) 698-3814
Telecopier No.: (214) 744-0231
Attention: Melissa Ruman Stewart
and
Telephone No.: (214) 698-3867
Telecopier No.: (214) 744-0231
Attention: Michael D. Cuda
(iii) If to any Lender, to its address shown opposite its signature block on
the signature pages hereto, or on any Assignment and Acceptance, or in any other
notice to the Borrower and the Administrative Agent,
or at such other address or, telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice to the other
specifically captioned "Notice of Change of Address".
(c) Effectiveness. Each notice to be given or delivered to any party pursuant
to this Agreement shall be effective or deemed delivered or furnished (i) if
sent by mail upon receipt, (ii) if sent by telecopier, when such notice is
transmitted to the appropriate number, answerback received, (iii) if sent by
hand delivery or overnight courier, when received by the addressee addressed as
above provided, and (iv) if given by telephone, when communicated to the
individual or any member of the department specified as the individual or
department to whose attention notices, communications and materials are to be
given or delivered except that notices of a change of address, telecopier or
telephone number or individual or department to whose attention notices,
communications and materials are to be given or delivered shall not be effective
until received; provided, however, that notices to Administrative Agent pursuant
-------- -------
to Article II shall be effective when received. The Borrower agrees that
Administrative Agent shall have no duty or obligation to verify or otherwise
confirm telephonic notices given pursuant to Article II, and agrees to indemnify
and hold harmless Administrative Agent and Lenders for any and all liabilities,
obligations, losses,
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damages, penalties, actions, judgments, suits, claims, costs, and expenses
resulting, directly or indirectly, from acting upon any such notice.
11.03. Parties in Interest. All covenants and agreements contained in this
Agreement and all other Loan Papers shall bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto. Each Lender
may from time to time assign or transfer its interests hereunder pursuant to
Section 11.04 hereof. The Borrower may not assign or transfer its Rights or
obligations hereunder without the prior written consent of each Lender.
11.04. Assignments and Participations.
(a) Each Lender (an "Assignor") may assign its Rights and obligations as a
Lender under the Loan Papers to another Lender or its Bank Affiliate, or to one
or more transferees pursuant to an Assignment and Acceptance, so long as, if
such Assignee is not another Lender or a Bank Affiliate of the Assignor (i) each
assignment shall be of a constant, and not a varying percentage of all Rights
and obligations thereunder, (ii) each Assignor shall obtain in each case the
prior written consent of Administrative Agent and the Borrower, such consent of
the Borrower not to be unreasonably withheld or delayed, provided that, in the
event there exists an Event of Default that is continuing, no consent of the
Borrower shall be required to make an assignment, (iii) each Assignor shall in
each case pay a $3,500 processing fee to Administrative Agent and (iv) no such
assignment is for an amount less than $10,000,000 (unless such Lender is
assigning all of its remaining interest) and in increments of $1,000,000 (and,
if such assignment is a partial assignment, no Lender shall hold less than
$10,000,000 immediately after giving effect to any assignment unless it assigned
all of its interest). Assignments and other transfers (except participations)
with respect to each Lender's participation in a given Letter of Credit may only
be made with the prior written consent of the Administrative Agent. Within five
Business Days after the Borrower receives notice of any such assignment, the
Borrower shall execute and deliver to Administrative Agent, but only in exchange
for the Notes issued to Assignor, new Notes to the order of such Assignor and
its assignee in amounts equal to their respective Applicable Specified
Percentages of the Revolver A Commitment and the Revolver B Commitment (if any
exists), and/or the Working Line Commitment, or after the Conversion Date (if
any), the amount of the Working Line Loan, as applicable. Such new Notes shall
be dated the effective date of the assignment. It is specifically acknowledged
and agreed that on and after the effective date of each assignment, the assignee
shall be a party hereto and shall have the Rights and obligations of a Lender
under the Loan Papers.
(b) Each Lender may sell participations to one or more Persons in all or
any of its Rights and obligations under the Loan Papers; provided, however, that
-------- -------
(i) such Lender's obligations under the Loan Papers shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
its Notes for all purposes of the Loan Papers, (iv) the participant shall be
granted the Right to vote on or consent to only those matters described in
Sections 11.01(a), (b), (c), (d) and (e) hereof, (v) Obligors, the Restricted
Subsidiaries, the Administrative Agent, and other Lenders shall continue to deal
solely and directly with such Lender in connection with their respective Rights
and obligations under the Loan Papers and (vi) no such participation is for an
amount less than $5,000,000.
(c) Any Lender may, in connection with any assignment or participation, or
proposed assignment or participation, disclose to the assignee or participant,
or proposed assignee or
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participant, any information relating to the Borrower and its Subsidiaries
furnished to such Lender by or on behalf of the Borrower and its Subsidiaries,
subject to the provisions of Section 11.15 hereof.
(d) Notwithstanding any other provision set forth in this Agreement, (i)
any Lender may at any time create a security interest in all or any portion of
its Rights under this Agreement (including, without limitation, the Advances
owing to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System and (ii) no participant of any Lender may further assign or participate
any of its interest in the Loan Papers to any Person (except as may be required
by Law or a Tribunal having authority over such participant).
11.05. Sharing of Payments. If, after and during the continuance of any
Event of Default, any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any Right of set-off, or otherwise) on
account of its Advances in excess of its pro rata share of payments made by the
Borrower in accordance with such Lender's Total Specified Percentage (except
payments to the Swingline Bank made to repay Swingline Advances), such Lender
shall forthwith purchase participations in Advances made by the other Lenders as
shall be necessary to share the excess payment pro rata in accordance with each
Lender's Total Specified Percentage with each of them; provided, however, that
-------- -------
if any of such excess payment is thereafter recovered from the purchasing
Lender, its purchase from each Lender shall be rescinded and each Lender shall
repay the purchase price to the extent of such recovery together with a pro rata
share of any interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 11.05 may, to the fullest extent permitted by Law, exercise all its
Rights of payment (including the Right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
11.06. Right of Set-off. Upon the occurrence and during the continuance of
any Event of Default, each Lender is hereby authorized (after prior written
notice to the Administrative Agent) at any time and from time to time, to the
fullest extent permitted by Law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower or any of its Restricted Subsidiaries against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the other Loan Papers, whether or not Administrative Agent or any
Lender shall have made any demand under this Agreement or the other Loan Papers,
and even if such obligations are unmatured. Each Lender shall promptly notify
the Borrower after any such set-off and application, provided that the failure
to give such notice shall not affect the validity of such set-off and
application. The Rights of each Lender under this Section 11.06 are in addition
to other Rights (including, without limitation, other Rights of set-off) which
such Lender may have.
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11.07. Costs, Expenses, and Taxes.
(a) Notwithstanding anything to the contrary in the Loan Papers, the
Borrower agrees to pay on demand (i) all reasonable out of pocket costs and
expenses of Administrative Agent, Co-Arrangers, Co-Syndication Agents and the
Arranging Agents in connection with the preparation and negotiation of all Loan
Papers, including without limitation the reasonable fees and out-of-pocket
expenses of Special Counsel, FCC counsel, PUC counsel and local counsel, as
appropriate, (ii) all costs and expenses (including reasonable attorneys' fees
and expenses) of Administrative Agent and Arranging Agents in connection with
any interpretation, grant and perfection of any Lien, modification, amendment,
waiver, release of any Loan Papers, restructuring or work-out and (iii) all
costs and expenses (including reasonable attorneys' fees and expenses) of
Administrative Agent, the other Arranging Agents and each Lender in connection
with any collection of any portion of the Obligations or the enforcement of any
Loan Papers during the continuance of an Event of Default.
(b) In addition, notwithstanding anything to the contrary in the Loan
Papers, the Borrower shall pay any and all stamp, debt, and other Taxes payable
or determined to be payable in connection with any payment hereunder to
Administrative Agent, Arranging Agents or any Lender (but specifically excluding
any participant) (other than Taxes on the overall net income of Administrative
Agent or any Lender or franchise Taxes or Taxes on capital or capital receipts
of Administrative Agent or any Lender), or the execution, delivery, or
recordation of any Loan Papers, and agrees to save Administrative Agent and each
Lender harmless from and against any and all liabilities with respect to, or
resulting from any delay in paying or omission to pay any Taxes in accordance
with this Section 11.07, including any penalty, interest, and expenses relating
thereto. All payments by the Borrower or any Restricted Subsidiary of the
Borrower under any Loan Papers shall be made free and clear of and without
deduction for any present or future Taxes (other than Taxes on the overall net
income of Administrative Agent or any Lender of any nature now or hereafter
existing, levied, or withheld, or franchise Taxes or Taxes on capital or capital
receipts of Administrative Agent or any Lender), including all interest,
penalties, or similar liabilities relating thereto. If the Borrower shall be
required by Law to deduct or to withhold any Taxes from or in respect of any
amount payable hereunder (i) the amount so payable shall be increased to the
extent necessary so that, after making all required deductions and withholdings
(including Taxes on amounts payable to Administrative Agent or any Lender
pursuant to this sentence), Administrative Agent or any Lender receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made, (ii) the Borrower shall make such deductions or
withholdings, and (iii) the Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority in accordance with applicable Law.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 11.07 shall survive the execution of this Agreement, termination of the
Commitment, repayment of the Obligations, satisfaction of each agreement
securing or assuring the Obligations and termination of this Agreement and each
other Loan Paper.
11.08. Rate Provision. It is not the intention of any party to any Loan
Papers to make an agreement violative of the Laws of any applicable jurisdiction
relating to usury. In no event shall any Obligor, Restricted Subsidiary or any
other Person be obligated to pay any amount in excess of the Maximum Amount. If
Administrative Agent or any Lender ever receives, collects or applies, as
interest, any such excess, such amount which would be excessive interest shall
be deemed a partial repayment of principal and treated hereunder as such; and if
principal is paid in full, any remaining excess shall be paid to the Borrower or
the other Person entitled thereto. In determining
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whether or not the interest paid or payable, under any specific contingency,
exceeds the Maximum Amount, each Obligor, Restricted Subsidiary, Administrative
Agent and each Lender shall, to the maximum extent permitted under Applicable
Laws, (a) characterize any nonprincipal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effect
thereof, and (c) amortize, prorate, allocate and spread in equal parts, the
total amount of interest throughout the entire contemplated term of the
Obligations so that the interest rate is uniform throughout the entire term of
the Obligations; provided that if the Obligations are paid and performed in full
--------
prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Maximum Amount,
Administrative Agent or Lenders, as appropriate, shall refund to the Borrower
the amount of such excess or credit the amount of such excess against the total
principal amount owing, and, in such event, to the extent permitted by
Applicable Law, neither Administrative Agent nor any Lender shall be subject to
any penalties provided by any Laws for contracting for, charging or receiving
interest in excess of the Maximum Amount. This Section 11.08 shall control every
other provision of all agreements among the parties to the Loan Papers
pertaining to the transactions contemplated by or contained in the Loan Papers.
11.09. Severability. If any provision of any Loan Paper is held to be
illegal, invalid, or unenforceable under present or future Laws during the term
thereof, such provision shall be fully severable, the appropriate Loan Paper
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part thereof, and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance therefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision there
shall be added automatically as a part of such Loan Paper a legal, valid, and
enforceable provision substantially similar in terms to the illegal, invalid, or
unenforceable provision as may be possible.
11.10. Exceptions to Covenants. No Obligor or Restricted Subsidiary shall
be deemed to be permitted to take any action or to fail to take any action that
is permitted as an exception to any covenant in any Loan Papers, or that is
within the permissible limits of any covenant, if such action or omission would
result in a violation of any other covenant in any Loan Papers.
11.11. Counterparts. This Agreement and the other Loan Papers may be
executed in any number of counterparts with different parties signing on
different counterparts, all of which taken together shall constitute one and the
same instrument. In making proof of any such agreement, it shall not be
necessary to produce or account for any counterpart other than one signed by the
party against which enforcement is sought.
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND ALL OTHER LOAN PAPERS SHALL BE DEEMED TO BE
CONTRACTS MADE IN NEW YORK, NEW YORK, AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE UNITED STATES OF
AMERICA. WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BORROWER AGREES TO SUBMIT
ITSELF TO THE JURISDICTION OF THE FEDERAL COURTS OF NEW YORK LOCATED IN NEW
YORK, NEW YORK FOR PROCEEDINGS IN CONNECTION HEREWITH. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
WAIVES ANY RIGHT
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THAT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT,
CONTRACT, EQUITY, OR OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT, THE
OTHER LOAN PAPERS, OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE
SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
(b) THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES
PERSONAL SERVICE OF ANY LEGAL PROCESS UPON IT. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER, THE
ADMINISTRATIVE AGENT OR EACH SUCH LENDER, RESPECTIVELY, AT ITS ADDRESS
DESIGNATED FOR NOTICE UNDER THIS AGREEMENT. NOTHING IN THIS SECTION 11.12
SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
11.13. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS AGREEMENT SUPERSEDES AND
REPLACES IN ITS ENTIRETY THE LETTER AGREEMENT DATED FEBRUARY 2, 1999, INCLUDING,
WITHOUT LIMITATION, THE SUMMARY OF TERMS AND CONDITIONS DATED FEBRUARY 2, 1999.
11.14. Release of Conditional Early Release Unlimited Guaranty. At such
time as (i) there exists no Default under Section 9.01(a) hereof, (ii) there
exists no Event of Default and (iii) the Senior Unsecured Debt Rating is BBB- or
Baa3 or better, the Guarantor shall be immediately and automatically released
from its obligations under the Conditional Early Release Unlimited Guaranty, and
the Administrative Agent shall, and the Arranging Agents and the Lenders hereby
authorize the Administrative Agent to, promptly take all action and execute such
documents to release LCI International, Inc. from its obligations under the
Conditional Early Release Unlimited Guaranty in full, and return the Conditional
Early Release Unlimited Guaranty to LCI International, Inc.
11.15. Confidentiality. Each Lender agrees to keep information obtained by
it pursuant to the terms hereof or the terms of any other Loan Paper that is not
otherwise publicly available ("Confidential Information") confidential in
accordance with such Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices and agrees that it will only use such Confidential Information in
connection with the transactions contemplated by this Agreement and not disclose
any of such Confidential Information other than (a) to such Lenders and its
Affiliates' (other than an Affiliate which is a competitor of the Borrower or
its Subsidiaries) employees, counsel (in-house and outside), accountants,
consultants, representatives, professional advisors and agents so long as such
Person is advised of the confidentiality of such Confidential Information and
the limitation on its use under this Section 11.15, needs to have knowledge of
such Confidential Information for such limited use, and, if such Person is not
such Lenders' or its Affiliates' employee, counsel (in-house and outside),
accountant consultant, professional advisor or agent, such Person has executed a
confidentiality undertaking in favor of the Borrower substantially upon the
terms of this Section 11.15 before such Confidential
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Information is disclosed to such Person, (b) to regulatory officials, and in
order to comply with any Applicable Law, or other law, regulation or judicial
order, or as requested or required by bank regulators or auditors or other
governmental authorities or Tribunals, (c) as reasonably deemed necessary in
connection with any investigation, legal process or litigation, or (d) to
assignees or participants or proposed assignees or proposed participants of all
or any part of this credit facility so long as such Person has executed a
confidentiality undertaking in favor of the Borrower substantially upon the
terms of this Section 11.15 before such Confidential Information is disclosed to
such Person. The failure of any Lender to comply with the provisions of this
Section 11.15 shall not affect the Obligations, or the obligation of the
Borrower to comply with the terms of this Agreement and the other Loan Papers,
or the validity of any assignment or participation granted pursuant to the terms
of this Agreement. Each Lender shall be responsible for any breach of the
provisions of this Section 11.15 or unauthorized disclosure of such Confidential
Information by any of its or its Affiliates' employees, counsel (in-house and
outside), accountants, consultants, representatives, professional advisors and
agents. Each Lender shall take customary precautions to prevent Confidential
Information from being disclosed to its employees or employees of any Affiliate
who are equity analysts or Persons involved in publication of research in
connection with the Borrower or any of the Borrower's Subsidiaries or any of
their respective securities.
=========================================================
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
=========================================================
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IN WITNESS WHEREOF, this Credit Agreement is executed as of the date first
set forth above.
THE BORROWER:
QWEST COMMUNICATIONS INTERNATIONAL INC.
/s/ Drake S. Tempest
--------------------------------------------------
By: Drake S. Tempest
Its: Executive Vice President and General Counsel
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ADMINISTRATIVE AGENT:
NATIONSBANK, N.A., as Administrative Agent and Co-
Arranging Agent
/s/ Anthony M. Cacheria
--------------------------------------------------
By: Anthony M. Cacheria
Its: Senior Vice President
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THE BANK OF NEW YORK, as a Co-Arranging Agent
/s/ Gerry Granovsky
--------------------------------------------------
By: Gerry Granovsky
-----------------------------------------------
Its: Vice President
----------------------------------------------
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CITIBANK, N.A., as a Co-Arranging Agent
/s/ Mark K. Wilson
--------------------------------------------------
By: Mark K. Wilson
-----------------------------------------------
Its: Managing Director
----------------------------------------------
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LENDERS:
NATIONSBANK, N.A., individually as a Lender
Address:
901 Main Street
64th Floor
Dallas, Texas 75202 /s/ Anthony M. Cacheria
---------------------------------------------
By: Anthony M. Cacheria
Its: Senior Vice President
Attn.:
Telephone: (214) 209-0157
Telecopy: (214) 209-9390
Revolver A Specified Percentage: 6.450000000%
Working Line Specified Percentage: 6.450000000%
Revolver B Specified Percentage: 6.450000000%
Total Specified Percentage: 6.450000000%
THE BANK OF NEW YORK, individually as a Lender
Address:
One Wall Street
16th Floor
New York, New York 10286
/s/ Gerry Granovsky
---------------------------------------------
By: Gerry Granovsky
------------------------------------------
Its: Vice President
-----------------------------------------
Attn: Gerry Granovsky
Telephone: (212) 635-8615
Telecopy: (212) 635-8593
Revolver A Specified Percentage: 6.450000000%
Working Line Specified Percentage: 6.450000000%
Revolver B Specified Percentage: 6.450000000%
Total Specified Percentage: 6.450000000%
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FIRST UNION NATIONAL BANK, individually as a
Lender
Address:
301 S. College Street DC5
Charlotte, North Carolina 28288
/s/ Lloyd R. Sams
---------------------------------------------
By: Lloyd R. Sams
------------------------------------------
Its: Senior Vice President
-----------------------------------------
Attn: Lloyd Sams
Telephone: (704) 374-4151
Telecopy: (704) 374-4092
Revolver A Specified Percentage: 6.450000000%
Working Line Specified Percentage: 6.450000000%
Revolver B Specified Percentage: 6.450000000%
Total Specified Percentage: 6.450000000%
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CITIBANK, N.A., individually as a Lender
Address:
399 Park Avenue
8th Floor, Zone 5
New York, New York 10022
/s/ Mark K. Wilson
---------------------------------------------
By: Mark K. Wilson
------------------------------------------
Its: Managing Director
-----------------------------------------
Attn: Liz Minella
Telephone: (212) 559-2442
Telecopy: (212) 793-6873
Revolver A Specified Percentage: 6.450000000%
Working Line Specified Percentage: 6.450000000%
Revolver B Specified Percentage: 6.450000000%
Total Specified Percentage: 6.450000000%
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ABN AMRO BANK N.V.
Address:
135 South LaSalle, Suite 1500
Chicago, Illinois 60604-1003
Attn: Brendan Korb
Telephone: (312) 992-5127 /s/ Roxana Sopala
Telecopy: (312) 992-5111 ------------------------------------------
By: Roxana Sopala
---------------------------------------
Its: Vice President
--------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
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BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
Address:
Two Ravinia Drive, Suite 1680
Atlanta, Georgia 30346
Attn: Richard Varalla
Telephone: (770) 390-1850 /s/ Richard W. Varalla
Telecopy: (770) 390-1851 -------------------------------------------
By: Richard W. Varalla
----------------------------------------
Its: Associate
--------------------------------------
/s/ Robert M. Biringer
-------------------------------------------
By: Robert M. Biringer
----------------------------------------
Its: Executive Vice President
---------------------------------------
Revolver A Specified Percentage: 2.20000000%
Working Line Specified Percentage: 2.20000000%
Revolver B Specified Percentage: 2.20000000%
Total Specified Percentage: 2.20000000%
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BANK OF MONTREAL
Address:
430 Park Avenue
New York, New York 10022
Attn: Ola Anderssen
Telephone: (212) 605-1453 /s/ Ola Anderssen
Telecopy: (212) 605-1648 -------------------------------------------
By: Ola Anderssen
----------------------------------------
Its: Director
--------------------------------------
Revolver A Specified Percentage: 2.20000000%
Working Line Specified Percentage: 2.20000000%
Revolver B Specified Percentage: 2.20000000%
Total Specified Percentage: 2.20000000%
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Address:
1251 Avenue of the Americas, 12th Floor
New York, New York 10020-1104
Attn: Michael Deadder
Telephone: (212) 782-4423 /s/ Michael Deadder
Telecopy: (212) 782-4935 -------------------------------------------
By: Michael Deadder
----------------------------------------
Its: Vice President
---------------------------------------
Revolver A Specified Percentage: 2.20000000%
Working Line Specified Percentage: 2.20000000%
Revolver B Specified Percentage: 2.20000000%
Total Specified Percentage: 2.20000000%
105
<PAGE>
BANQUE NATIONALE DE PARIS
Address:
499 Park Avenue
New York, New York 10022-1278
Attn: Thomas Cantello
Telephone: (212) 415-9421 /s/ Robert Munczinski
Telecopy: (212) 415-9836 -------------------------------------------
By: Robert Munczinski
----------------------------------------
Its: Senior Vice President
---------------------------------------
/s/ T.L. Foerster
-------------------------------------------
By: T.L. Foerster
----------------------------------------
Its: Vice President
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
106
<PAGE>
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMEN ISLANDS BRANCH
Address:
560 Lexington Avenue
New York, New York 10022
Attn: James H. Boyle
Telephone: (212) 310-9817 /s/ Peter Obermann /s/ Sean O'Sullivan
Telecopy: (212) 310-9868 -------------------------------------------------
By: Peter Oberman Sean O'Sullivan
----------------------------------------------
Its: Senior Vice President Vice President
---------------------------------------------
Revolver A Specified Percentage: 2.20000000%
Working Line Specified Percentage: 2.20000000%
Revolver B Specified Percentage: 2.20000000%
Total Specified Percentage: 2.20000000%
107
<PAGE>
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW
YORK BRANCH
Address:
150 East 42nd Street
New York, New York 10017
Attn: Christian Walter
Telephone: (212) 672-5460 /s/ Ivana Albanese-Rizzo /s/ Yoram Dankner
Telecopy: (212) 672-5530 -------------------------------------------------
By: Ivana Albanese-Rizzo Yoram Dankner
----------------------------------------------
Its: Director Managing Director
---------------------------------------------
Revolver A Specified Percentage: 2.20000000%
Working Line Specified Percentage: 2.20000000%
Revolver B Specified Percentage: 2.20000000%
Total Specified Percentage: 2.20000000%
108
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
Address:
c/o Rabo Support Services
10 Exchange Place /s/ Douglas W. Zylstra
16th Floor -------------------------------------------
Jersey City, New Jersey By: Douglas W. Zylstra
Telephone: (201) 499-5200 ----------------------------------------
Telecopy: (201) 499-5328 Its: Vice President
---------------------------------------
With a copy to:
300 South Wacker Drive,
Chicago, Illinois 60606 /s/ W. Jeffrey Volfeck
-------------------------------------------
Attn: Alan McLintock By: W. Jeffrey Volfeck
Telephone: (312) 408-8253 Its: Senior Credit Officer, Senior Vice President
Telecopy: (312) 786-0052
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
109
<PAGE>
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLAND BRANCH
Address:
31 W. 52nd Street
New York, New York 10019
Attn: Jon D. Storck
Telephone: (212) 468-6258 /s/ Jon D. Storck /s/ Alexander Richarz
Telecopy: (212) 469-3713 -------------------------------------------------
By: Jon D. Storck Alexander Richarz
----------------------------------------------
Its: Vice President Associate
---------------------------------------------
Revolver A Specified Percentage: 2.75000000%
Working Line Specified Percentage: 2.75000000%
Revolver B Specified Percentage: 2.75000000%
Total Specified Percentage: 2.75000000%
110
<PAGE>
DG BANK
Address:
609 Fifth Avenue
New York, New York 10017
Attn: Sabine Wendt
Telephone: (212) 745-1559 /s/ Sabine Wendt /s/ Trevor H. Brookes
Telecopy: (212) 745-1556 -------------------------------------------------
By: Sabine Wendt Trevor H. Brookes
----------------------------------------------
Its: Assistant Vice Assistance Vice
President President
---------------------------------------------
Revolver A Specified Percentage: 1.50000000%
Working Line Specified Percentage: 1.50000000%
Revolver B Specified Percentage: 1.50000000%
Total Specified Percentage: 1.50000000%
111
<PAGE>
DRESDNER BANK AG, NEW YORK AND CAYMEN
ISLAND BRANCHES
Address:
75 Wall Street
New York, New York 10005
Attn: Helen Ng
Telephone: (212) 429-2430 /s/ Patrick A. Keleher Brian E. Haughney
Telecopy: (212) 429-4181 -------------------------------------------------
By: Patrick A. Keleher Brian E. Haughney
---------------------------------------------
Its: Vice President Assistant Vice President
---------------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
112
<PAGE>
EXPORT DEVELOPMENT CORPORATION
Address:
151 O'Connor Street
Ottawa, Ontario K1A 1K3
Attn: Roman Chomyn
Telephone: (613) 598-2778 /s/ Gary Nevison
Telecopy: (613) 598-6858 -------------------------------------------
By: Gary Nevison
----------------------------------------
Its: Financial Services Manager
---------------------------------------
/s/ Roman Chomyn
-------------------------------------------
By: Roman Chomyn
----------------------------------------
Its: Financial Services Manager
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
113
<PAGE>
FIRST NATIONAL BANK OF OMAHA
Address:
1620 Dodge Street
Omaha, Nebraska 68102
Attn: Tom Callahan
Telephone: (402) 633-3593 /s/ Tom Callahan
Telecopy: (402) 633-3519 -------------------------------------------
By: Tom Callahan
----------------------------------------
Its: Loan Officer
---------------------------------------
Revolver A Specified Percentage: 1.50000000%
Working Line Specified Percentage: 1.50000000%
Revolver B Specified Percentage: 1.50000000%
Total Specified Percentage: 1.50000000%
114
<PAGE>
FLEET NATIONAL BANK
Address:
1 Federal Street
Boston, Massachusetts 02110
Attn: Christopher Swindell
Telephone: (617) 346-5579 /s/ Christopher Swindell
Telecopy: (613) 346-4345 -------------------------------------------
By: Christopher Swindell
----------------------------------------
Its: Vice President
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
115
<PAGE>
KBC BANK N.V.
Address:
515 South Figueroa Street,
Suite 1920
Los Angeles, California 90071
Attn: Jean Frammolino
Telephone: (213) 624-0401 /s/ Robert Snauffer
Telecopy: (213) 629-5801 -------------------------------------------
By: Robert Snauffer
----------------------------------------
Its: First Vice President
---------------------------------------
/s/ Marcel Claes
-------------------------------------------
By: Marcel Claes
----------------------------------------
Its: Deputy General Manager
---------------------------------------
Revolver A Specified Percentage: 2.75000000%
Working Line Specified Percentage: 2.75000000%
Revolver B Specified Percentage: 2.75000000%
Total Specified Percentage: 2.75000000%
116
<PAGE>
NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
Address:
1740 Broadway
Denver, Colorado 80274-8673
Attn: Karen Hardy
Telephone: (303) 863-5077 /s/ Catherine M. Jones
Telecopy: (303) 863-6670 -------------------------------------------
By: Catherine M. Jones
----------------------------------------
Its: Vice President
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
117
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
Address:
21st Floor Mail Stop
F2-F070-21-1
1600 Market Street
Philadelphia, Pennsylvania 19103
Attn: Steven J. McGehrin
Telephone: (215) 585-6269 /s/ Steven J. McGehrin
Telecopy: (215) 585-6680 -------------------------------------------
By: Steven J. McGehrin
----------------------------------------
Its: Vice President
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
118
<PAGE>
ROYAL BANK OF CANADA
Address:
One Liberty Plaza
New York, New York 10006
Attn: Andrew Cozewith
Telephone: (212) 428-6552 /s/ Andrew Cozewith
Telecopy: (212) 428-6460 -------------------------------------------
By: Andrew Cozewith
----------------------------------------
Its: Manager
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
119
<PAGE>
THE BANK OF NOVA SCOTIA
Address:
580 California Street, Suite 2100
San Francisco, California 94104
Attn: Jon Burckin
Telephone: (415) 986-1100 /s/ Chris Osborn
Telecopy: (415) 397-6791 -------------------------------------------
By: Chris Osborn
----------------------------------------
Its: Relationship Manager
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
120
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
Address:
One First National Plaza
IF1-0629
Chicago, Illinois 60670
Attn: Lynne Sanders
Telephone: (312) 732-5125 /s/ Michael J. Harrington
Telecopy: (312) 732-8587 -------------------------------------------
By: Michael J. Harrington
----------------------------------------
Its: Corporate Banking Officer
---------------------------------------
Revolver A Specified Percentage: 3.80000000%
Working Line Specified Percentage: 3.80000000%
Revolver B Specified Percentage: 3.80000000%
Total Specified Percentage: 3.80000000%
121
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS
ANGELES AGENCY
Address:
350 South Grand Avenue, Suite 1500
Los Angeles, California 90071
Attn: Blake Seaton
Telephone: (213) 893-6448 /s/ Vicente L. Timiraos
Telecopy: (213) 488-9840 -------------------------------------------
By: Vicente L. Timiraos
----------------------------------------
Its: SVP and SDGM
---------------------------------------
Revolver A Specified Percentage: 1.500000000%
Working Line Specified Percentage: 1.500000000%
Revolver B Specified Percentage: 1.500000000%
Total Specified Percentage: 1.500000000%
122
<PAGE>
TORONTO DOMINION (TEXAS), INC.
Address:
31 West 52nd Street
New York, New York 10019-6101
Attn: Nancy Sheridan
Telephone: (212) 827-7582 /s/ Debbie A. Greene
Telecopy: (212) 262-1928 -------------------------------------------
By: Debbie A. Greene
----------------------------------------
Its: Vice President
---------------------------------------
Revolver A Specified Percentage: 3.800000000%
Working Line Specified Percentage: 3.800000000%
Revolver B Specified Percentage: 3.800000000%
Total Specified Percentage: 3.800000000%
123
<PAGE>
U.S. BANK NATIONAL ASSOCIATION
Address:
918 17th Street, 2nd Floor
Denver, Colorado 80202
Attn: Heather A. Miller
Telephone: (303) 585-6522 /s/ Brian T. McKinney
Telecopy: (303) 585-4135 -------------------------------------------
By: Brian T. McKinney
----------------------------------------
Its: Vice President
---------------------------------------
Revolver A Specified Percentage: 3.800000000%
Working Line Specified Percentage: 3.800000000%
Revolver B Specified Percentage: 3.800000000%
Total Specified Percentage: 3.800000000%
124
<PAGE>
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW
YORK BRANCH
Address:
1211 Avenue of the Americas, 23rd Floor
New York, New York 10036
Attn: Barry Wadler
Telephone: (212) 852-6137 /s/ Duncan M. Robertson Pascal Kabemba
Telecopy: (212) 852-6148 -------------------------------------------------
By: Duncan M. Robertson Pascal Kabemba
----------------------------------------------
Its: Vice President
---------------------------------------------
Revolver A Specified Percentage: 3.800000000%
Working Line Specified Percentage: 3.800000000%
Revolver B Specified Percentage: 3.800000000%
Total Specified Percentage: 3.800000000%
125
<PAGE>
FIRST UNION NATIONAL BANK,
as a Co-Arranging Agent
/s/ Lloyd R. Sams
-------------------------------------------
By: Lloyd R. Sams
----------------------------------------
Its: Senior Vice President
---------------------------------------
126
<PAGE>
EXHIBIT 21.1
SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
State or Other
Jurisdiction of
Incorporation or Other Name
Name of Subsidiary Organization Under Which Subsidiary Does Business
------------------ ------------ ------------------------------------
<S> <C> <C>
Qwest Communications Corporation/(1)/...... Delaware (a) Qwest Communications Corporation d/b/a
Qwest Communications The Power of Connections
(b) Qwest Communications Corporation of
Delaware
(c) Qwest Communications d/b/a The Power of
Connections
(d) Qwest Communications The Power of
Connections, Inc.
Qwest Corporation.......................... Colorado None
SuperNet, Inc.............................. Colorado None
Phoenix Network, Inc....................... Delaware None
Phoenix Telecom, Inc....................... Delaware None
Phoenix Network, Inc. of New Hampshire None
New Hampshire..............................
Phoenix Network Acquisition Corp........... Delaware None
Phoenix TNC Corporation.................... Delaware None
AmeriConnect, Inc.......................... Delaware None
EUet International Limited................. United Kingdom N/A
Qwest B.V.................................. The Netherlands None
KPNQwest B.V............................... The Netherlands None
LCI International, Inc..................... Delaware None
LCI International Telecom Corp............. Delaware None
LCI International of Virginia, Inc......... Virginia None
LCI California Assets, LLC................. Delaware None
LCI International Management Services, Inc. Delaware None
LCI Telecom UK, Ltd........................ United Kingdom None
LCI SPC I, Inc............................. Delaware None
LCI International CA, Inc.................. Delaware None
#1056974 Ontario Inc....................... Ontario None
USLD Communications Corp................... Delaware None
USLD Communications, Inc................... Texas None
U.S. Long Distance, Inc.................... Texas None
U.S. Long Distance, Corp................... Texas None
Megas Plus Dialing Inc..................... British Columbia None
Qwest Internet Solutions, Inc.............. Delaware None
</TABLE>
- ---------------------------
/(1)/ Qwest Communications Corporation also uses the trade name "SP
Construction Services."
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AS OF MARCH 31, 1999 AND CONSOLIDATED STATEMENT OF
OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 1999 INCLUDED IN THE COMPANY'S
FORM 10-Q, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<CASH> 119
<SECURITIES> 0
<RECEIVABLES> 716
<ALLOWANCES> 59
<INVENTORY> 0
<CURRENT-ASSETS> 1,097
<PP&E> 3,036
<DEPRECIATION> 209
<TOTAL-ASSETS> 8,009
<CURRENT-LIABILITIES> 1,005
<BONDS> 2,294
0
0
<COMMON> 4
<OTHER-SE> 4,397
<TOTAL-LIABILITY-AND-EQUITY> 8,009
<SALES> 878
<TOTAL-REVENUES> 878
<CGS> 510
<TOTAL-COSTS> 819
<OTHER-EXPENSES> 3
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 32
<INCOME-PRETAX> 25
<INCOME-TAX> 20
<INCOME-CONTINUING> 5
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5
<EPS-PRIMARY> .01
<EPS-DILUTED> .01
</TABLE>
